African Criminal Court: Consultation On Malabo Protocol

January 24th, 2023

Alioune Tine, Director, West and Central Africa Regional OfficePresident Alpha Conde, Chairman, African Union
Amnesty International

Representatives from leading civil society organizations, professional associations, governments, African Union (AU), academia, and key media leaders in West Africa are scheduled to participate in a two-day consultation on the Malabo Protocol in Dakar from 2-3 May, 2017.

The Malabo Protocol or the “Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights” was adopted by AU Assembly of Heads of State and Government in Malabo, Equatorial Guinea, in June 2014.

The Protocol extends the jurisdiction of the yet to be established African Court of Justice and Human Rights (ACJHR) to try crimes under international law and transnational crimes, meaning that, if and when the new court becomes operational, the international criminal law section of the court will serve as an African regional criminal court, operating in a manner akin to the International Criminal Court (ICC) but within a narrowly defined geographical scope, and over an expanded list of crimes.

The two-day consultation, which is on the theme “Understanding the Malabo Protocol: The potential, the pitfalls and the way forward”, is organized by Amnesty International, IHRDA, RADDHO, and TrustAfrica.

According to the organizers, the two-day consultation will build upon previous civil society activities organized by Amnesty International and TrustAfrica in different parts of the continent, including TrustAfrica’s convening of victims’ access to justice before the existing African Court in March 2016 and Amnesty International’s consultation on the Malabo Protocol in Southern Africa in Johannesburg in November 2016.

The consultation comes against the backdrop of several developments on the international justice front in Africa, including the “ICC withdrawal strategy “adopted by the AU Assembly at its January 2017 AU Summit, the growing political momentum for operationalization of the new court, revocation of withdrawal from the ICC by South Africa and Gambia, and an ongoing consultation by Zambia to decide whether to withdraw from the ICC or retain its membership of the court.

Although there appears to be agreement among international justice experts that the ACJHR is welcome especially as it could also provide justice for victims of international crimes on the continent and deal with impunity, concerns also remain about implications arising from the proposal to expand the jurisdiction of the court.

Amnesty International has also pointed out a key concern being the immunity from prosecution before the Court granted to serving “Head of State or Government”, or “other senior state officials” under the Malabo Protocol.

In addition, Amnesty International has identified other areas of concern, including the expanded jurisdiction of the court, whether the court could have the resources needed to efficiently deliver on its mandate, that are yet to receive public attention and debate.

“With a jurisdiction covering three areas of international law, it is questionable whether the new court, as envisaged under the Malabo Protocol, will have the capacity to effectively and efficiently deliver on its mandate. It is also unclear whether the AU will have the requisite resources to operationalize and sustain such a court.”

According to Amnesty International, the Malabo Protocol may also have a deleterious effect on the human rights jurisdiction of the court, including possibly negative new implications on future ratifications of the statute of the current African Court on Human and Peoples’ Rights.

Amnesty International also expressed concern about potential restriction of the court to NGOs in Africa.

“Under the Malabo Protocol and previous amendments, AU member states have also introduced amendments that could restrict the ability of NGOs in Africa from accessing the court.”

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