Ousted from power for suspected corruption, Jacob Zuma will appear to respond to charges against him. This situation, which reminds us that no one should be above the law, is not without contrast with that of the recent departures negotiated and followed by amnesties for many heads of state in Africa. This on the grounds of preserving peace. These situations of impunity, which are informal de facto amnesties because they have not been voted on by Parliament, have made it possible to defuse certain inextricable situations, but are they nevertheless advisable? No, for several reasons!
Fragilization of the rule of law
The first reason, relating to the rule of law, is recurrent in major meetings and rankings where Africa is not well-taught. On the index of the rule of law 2017/2018 World Justice Project (WJP) which takes into account 21 African countries, the highest ranked African countries, namely Ghana, is ranked in the 43rd place on 113 countries. Not ameliorating this situation, amnesties granted to heads of state, implicated in various crimes, place them above the law even though they are involved in crimes whose victims are eagerly awaiting justice.
Yayah Jammeh has contributed to the health degradation of about 9000 HIV-positive Gambians from whom he stopped treatment, claiming to cure AIDS with a potion with unknown recipes. But he may never answer for this crime since his golden exile in Malabo. Others like Blaise Compaore, Omar El-Bashir, and Francois Bozizé are peaceful and travel quietly despite the arrest warrants pending against them. These informal amnesties, therefore, embody the idea that there is a double speed justice, questioning the principle of equality before the law. A first that goes to the end for people of low influence and another clement for high-ranking people.
Moreover, the dependence of justice on the executive is accentuated because it is automatically prevented from functioning optimally. However, once discrimination is established in the handling of cases, the credibility of the judiciary is undermined and the democratic game biased. This is seen in Ivory Coast where ex-rebels who helped the fall of the old regime were incorporated into the regular army and where some shout to the justice of the victors. The non-completion of the trial on the assassination of Thomas Sankara also cyclically revives waves of demonstrations and violence in Burkina Faso.
The institutionalization of an anti-democratic tradition
As a case law, the search for amnesty pushes some heads of state to create or maintain chaotic situations in their countries in order to force negotiation and proposals for immunity. This prevents the alternation and the proper functioning of the democratic process. The case of Joseph Kabila in the DRC is a good example of this paradigm. Past amnesties thus inspire new ones. There is even a momentum for the institutionalization of this practice. This was also enshrined in the vote of immunity for heads of state and their governments in office, at the 23rd summit of the African Union in Malabo in June 2014 for the creation of the African Court of Justice and Human Rights (ACHR). It is not uncommon to see heads of state encourage or even protect their peers in defiance of the law.
Threat on social cohesion
The feeling of injustice towards the exactions of dictators is a formidable fuel feeding the resentments and the temptations of revenge. Thus, informal amnesty can be a factor of social destabilization. In the case of the amnesty of a presumed head of state complicit in crimes or offenses even in his functions, this is likely to create social tensions in many cases. Especially in countries where the question of identity is still very present. This reinforces the idea of an ethnic supremacy source of civil wars even of genocide. This is also valid for armed groups that sometimes bring this head of state to power and whose incorporation into the army or into official functions is not always synonymous with a return to peace.
An amnesty to supervise
Sometimes the amnesty remains the ultimate solution to avoid bloodshed as in The Gambia in 2017, where military manoeuvres had begun to send the losing president to the elections. But if amnesty is not decreed by the institutions, or is not a popular emanation, it is not synonymous with forgiveness and appeasement. In this sense, it would be beneficial to put in place an exceptional institutional arrangement, which would leave the possibility to the nation to forgive or to continue, while delimiting the field of application with safeguards in order to avoid abuses. Otherwise, this kind of informal amnesty will be unhealthy because, on the one hand, it will open the door to the vilest political haggling, and on the other hand, may trigger vindictive reactions.
A commission of mediation and reconciliation if necessary, a validation by the Parliament and the Constitutional Court, should be able to allow the protagonists and the populations to limit the recourse to such exceptional measures in case of force majeure. This amnesty must therefore be a law with an active involvement of the recipient in the reparation of his wrong and must not be gilded, as is the case of Mugabe in Zimbabwe.
The question of amnesty remains very delicate, as the diversity of situations can impose equally diverse solutions for the end of the crisis. But one thing is certain, the informal and personal amnesties granted to heads of state are not likely to encourage their peers to good governance, because they grant the certainty of impunity.