Angola has officially become the first African Union member state to ratify the statute of the African Court of Justice and Human Rights, known as the Malabo Protocol. Fourteen other AU countries still need to ratify the statute before it enters into force.
The Malabo Protocol aims to add criminal jurisdiction over certain international crimes to the mandate of the yet-to-be-established court. The proposed court would also deal with interstate complaints and human rights cases. Once established—and if there is widespread ratification by AU member states—the court could play a crucial role in fighting impunity for serious international crimes across the continent, alongside national courts, special international courts, and the International Criminal Court (ICC). The existing African Court on Human and Peoples’ Rights was created in 2004.
The Malabo Protocol provides jurisdiction over a number of crimes particularly significant for contemporary challenges and colonial legacies on the continent, including the inclusion of corporate criminal liability.
But the Malabo Protocol also raises a number of issues that will need to be resolved for the court to genuinely advance justice in Africa. Most notably, the statute provides for immunity from prosecution of serving African heads of state or government and other senior state officials, a significant retreat from the law and practice of other international tribunals, including the Special Court for Sierra Leone and the ICC. The provision dangerously undermines equal application of the rule of law.
Additionally, under the Malabo Protocol, the court’s 15 judges will oversee three sections—general affairs, human rights and now international criminal law—with jurisdiction over 14 core crimes, compared to four for the 18-judge ICC. Questions remain as to whether this number of judges will be sufficient to cover the wide subject-matter mandate that is contemplated.
In particular, the mandate and resources of the existing African Court on Human and Peoples’ Rights need to be fully guaranteed and protected and not subject to diversion to the much greater resources that a criminal court will need.
As it stands, the 33 AU member states that ratified the treaty establishing the ICC would have obligations under both the ICC and the African Court. Angola should take the lead in ensuring that competing and complementary obligations of member states of these two courts, as well as their national courts, are clarified before the Malabo Protocol takes effect.
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