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The concept of amnesty and its place in human rights discourse

By Prof. Epiphany Azinge, SAN

Amnesty is a pardon extended by the government to a group or class of persons usually for political offence, the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet being convicted. It is the action of a government by which all persons or certain groups of persons who have committed a criminal offence usually of a political nature that threatens the sovereignty of the government are granted Immunity from prosecution. Examples of such offences are treason and sedition.

Amnesty allows the government of a nation or state to “forget” criminal acts, usually before prosecution has occurred. Amnesty has traditionally been used as a political tool of compromise and reunion following a war. An act of amnesty is generally granted to a group of people who have committed crimes against the state, such as treason, rebellion, or desertion from the military.

The history of amnesty dates back to 403 B.C. according to Greek and Roman law. One of the documented ones was the long-term civil war in Athens which was ended after a group dedicated to reuniting the city took over the government and arranged a general political amnesty. The amnesty which was effected by loyalty oaths taken by all Athenians, and only later made into law, the amnesty proclaimed the acts of both warring factions officially forgotten.

The amnesty which was also known as the Act of Oblivion was specifically to heal the wounds resulting for the civil war between democrats and oligarchs. The amnesty prevented the prosecution of those whowere considered political enemies having supported the reign of the thirty. Athenians jurors were required to swear “We will remember past offences no more.” The amnesty of 403 BC was passed by majority vote and affected almost everyone that participated in the war.

The Effect of amnesty are as follows

• Immediate release of all political prisoners

• Right of political exiles to return

• Relinquishment of civil and political rights

• Reinstatement in their jobs of persons dismissed for political reasons

• Right of victims of inhuman treatment or their families to compensation

Reasons for amnesty Laws

• Subsidiarily the authorities sometimes see in amnesty laws a means of dealing with the overcrowding of prisons, a situation which may prejudice the human rights of prisoners.

• In some cases, the purpose of an amnesty is strictly humanitarian. For instance, in Zaire, the Act of 17 November 1981 covers disabled persons. In Syria, Act No. 26 of 12 March 1978 covers incurable or chronically ill prisoners. In the Eastern European countries, each humanitarian measure appear to be traditional, particularly in respect of children, women, the aged and the sick.

In the USSR (Decrees of 19 October 1979 and 14 October 1981), in Bulgaria (1979) and in Hungary (Acts of 29 March 1975), measures of this kind have been adopted -in particular, to mark the International Year of the Child – for the benefit of minors, pregnant women and mothers of very young children .

• Amnesty can also be granted for political reasons during transitions of government. During the transition from an authoritarian regime to democracy, authoritarian regimes usually grant themselves amnesty in order to avoid prosecution during the approaching democratic dispensation. In Argentina, by promulgating an amnesty law known as the “pacification law” on 25 September 1983, the Argentine military junta attempted to obviate any possibility of criminal or civil proceedings being constituted against those responsible for serious violations of human rights committed during operations designed to restore public order .

• Amnesty can also serve to neutralize opposition groups. The purpose of amnesty is to seek social tranquility less by consensus than by a reduction of tensions, and thus of the opposition’s scope for action by forcing it to adopt a passive role. The aim is normalization rather than reconciliation through both persuasion and dissuasion. Such was the aim of the Polish amnesty law of 20 September 1984, enacted after the lifting of martial law, whose effects it was designed to alleviate. The goal of reducing tensions was achieved given the large number of individuals benefiting from the amnesty.

RECOGNITION OF AMNESTIES IN INTERNATIONAL LAW

It would be noticed that the application of amnesty by a State in some situations, transcends domestic crimes into the sphere of International law. This happens where the offence for which immunity against prosecution is provided are so atrocious that they deeply shock the conscience of humanity and are regarded as being of concern to the International community as a whole. The Rome Statute establishing the International Criminal Court in Article 5 lists the offences regarded as being of concern to the International community as crime of genocide, crimes against humanity, war crimes and crime of aggression.


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