When Heads of State are made to face criminal prosecution

About a fortnight ago, the Constitutional Court of South Africa issued a judgment in which it held that former president Jacob Zuma was in contempt of court and sentenced him to serve a term of 15 months in prison. In addition to this, the court also ordered the former president to pay a fine.

The reason for this was that the former president had refused to appear before a commission of inquiry into state capture, which was established to investigate administrative irregularities that are suspected to have occurred while Zuma was president of South Africa. 

This refusal led to several court cases, which resulted in a judgment that Zuma had to appear before the commission. His failure to comply resulted in the finding that he was guilty of contempt of the court order and hence the sentence. 

The court ordered him to report to the police within five days to start serving the imprisonment term.

This came as a shock to many, particularly in Africa where the tradition is that a former senior official and particularly a former head of state is considered a statesman who cannot generally be taken to court for any misdeeds whether committed before or after leaving office, let alone being convicted and sentenced to a term of imprisonment.

However, the interesting bit is that Zuma is not the first former head of state to be tried and even convicted of an offence this year. In March, the former President of Bolivia, Jeanine Anez was arrested on suspicion of involvement in terrorism and conspiracy. Just about that same time, former president of France, Nicolas Sarkozy, was also convicted and sentenced to prison for three years for corruption and influence peddling.

In 2018, former President Lula da Silva of Brazil was prosecuted, convicted and jailed for accepting bribes. A year later, another former president of the same country, Michel Temer, was also accused and convicted of taking bribes.

Currently, a number of former heads of Government are facing criminal prosecutions in their countries. In Israel, former Prime Minister Benjamin Netanyahu faces charges of bribery, fraud and breach of public trust. 

The indictments for these charges started in 2019 while he was still prime minister. He said that the charges were a witch-hunt and won an election despite the charges. 

Breach of public trust

Last year, former Malaysian Prime Minister Najib Razak was convicted and sentenced to jail on charges of criminal breach of public trust, money laundering and abuse of power. 

Mr Najib Razak had been prime minister of Malaysia from 2009 to 2018. He was sentenced to 12 years in prison for abuse of power, and 10 years in jail for the other charges. He has appealed the conviction and sentence.

Back in Africa, former President Fredrick Chiluba of Zambia was prosecuted for the offence of plundering the national economy while he was president. The trial was the first of its kind in which an African leader has been prosecuted for corruption in his own country and led the way in establishing that no big man is too big to face justice, as legal observers at the time said. He was acquitted of the criminal charges in 2008.

Nevertheless, apart from corruption and financial probity prosecutions, retired heads of state have also been prosecuted for other crimes. Former President of Liberia Charles Taylor was prosecuted by the Special Courts on Sierra Leone and convicted in 2012 of abetting war crimes, including rape and mutilation of innocent non-combatants in relation to the civil war in Sierra Leone. This was the first trial and conviction of a former head of state by an international tribunal since the Nuremberg trials of former leaders of Nazi Germany after the end of the Second World War.

Former President of Sudan Omar Bashir is another former head of state who was first charged before the International Criminal Court (ICC) in 2009 but declined to honour the summons to attend trial. Following the ouster of President Bashir from office, the interim ruling administration made the decision to hand President Omar Bashir over to the ICC to face the charges of genocide and other war crimes. The prosecution is yet to start.

But prosecution against a sitting or former head of state is fairly novel, if not outright unthinkable for most countries. This is because until late in the 20th Century, most heads of state were either monarchs who reigned for life or were mostly revered founding fathers to whom the citizenry felt hugely indebted for leading their countries to independence. In most monarchies, the courts belonged to the King, and he could not, therefore, be summoned or tried before his property.

That is why the trend towards the prosecution of heads of government – serving or retired – remains a very delicate issue in most of the world. Even in the United States, it is said President Ford decided to pardon his immediate predecessor Richard Nixon despite clear evidence that he had been engaged in criminal acts in the Watergate scandal.

Abuse of human rights

Suffice it that most of the presidents and heads of government who are charged always have the response that their prosecution is political.

Prosecuting a current or past senior political leader itself may show a clear commitment to the rule of law: That everyone is accountable for his or her actions and all are subject to the law.  It is a breakaway from the previous situation where serving and former heads of government had sweeping immunity and is thought, therefore, to strengthen republican democracy. 

Prosecution of former heads of state is deemed to send the signal that all should be held accountable for their acts while holding state offices. This, therefore, restrains the tendency towards misrule and authoritarianism.

This is even more important because the trend of prosecutions of former heads of government falls in two distinct categories. The first category of charges has a direct link to corruption and fraud involving the use of state power and assets. This explains why most of them are charged with offences relating to their use of public office for personal benefit.

The other category is with relation to egregious abuse of human rights, hence the charges relating to international crimes – genocide, war crimes and crimes against humanity. 

The two categories are also linked; that corrupt administrations tend to use their authority and abuse their power in the endeavour to cover up their corrupt deals. In so doing, they commit the atrocities that make them culpable for prosecution upon leaving office.

The most notable example here would be Charles Taylor. His conviction for war crimes was for involvement in fomenting civil war in another country that is Sierra Leone with the intention of acquiring conflict diamonds to enrich himself.

In conclusion, it must pointed out that the tendency towards prosecution of heads of states upon leaving office is not one that is shared as good for democracy. There are those who believe and with some credibility that it tends to weaken democracy, because it makes the autocratic leaders decline to reluctant to leave office for fear of persecution.

The writer is Head of Legal at Nation Media Group PLC