The Protocol on Amendments to the Statute of the African Court of Justice and Human Rights (Malabo Protocol) has the potential to play a pivotal role in addressing impunity for international and transnational crimes on the African continent. To deliver on this promise, however, the protocol must be more widely understood. This document aims to address the most frequently asked questions (FAQs) about the Malabo Protocol, providing insight into its provisions, significance, and the opportunities it presents for enhancing accountability across Africa.
1. What is the Malabo Protocol?
The Malabo Protocol is an amendment treaty adopted in 2014 that, if ratified, will expand the current African Court on Human Rights to establish the African Court of Justice and Human and Peoples’ Rights. The new court would be a first-of-its-kind regional court with jurisdiction over three branches of international law: general international law, human rights law, and international criminal law. The court would be the first supra-national court to have jurisdiction over a number of issues, including criminal jurisdiction over corporations.
2. Why was the Malabo Protocol adopted?
The Malabo Protocol was adopted in response to a long-standing need for a tribunal capable of addressing crimes of particular concern to Africa, a need that has been articulated since the 1970s. The protocol includes jurisdiction over crimes such as terrorism, drug trafficking, money laundering, and trafficking in hazardous wastes, among others, which are of concern to Africa. The African Court’s jurisdiction would allow these crimes to be prosecuted for the first time and enable Africa to take the lead in shaping a new agenda in international criminal law.
3. How can the Malabo Protocol improve accountability in Africa?
The Malabo Protocol can enhance accountability in Africa by expanding the number of cases that can be addressed. Not only would it create additional investigative and prosecutorial capacity in a context in which the International Criminal Court (ICC) cannot try all crimes under its jurisdiction. In addition, ratification of Malabo would allow the new court to address crimes that no other supra-national court can try. It would also be able to hold corporations accountable. Designed by Africans for Africans, it also allows the continent to claim ownership over accountability, complementing both national and other international courts. It promotes regional cooperation and solidarity to address impunity and advance rule of law.
The Malabo Protocol creates a new venue for Africans to seek justice, particularly for crimes not addressed by other international courts and rarely prosecuted nationally, thereby fostering a more robust framework for accountability on the continent.
4. How will the Malabo Protocol expand the jurisdiction and structure of the African court?
Malabo Protocol will establish a first of its kind regional court with jurisdiction over three branches of international law: general international law, human rights law, and international criminal law. The international criminal law section will be divided into three chambers: a Pre-Trial Chamber, a Trial Chamber, and an Appellate Chamber.
5. How will the court be accessed?
Several entities will be able to access the court, but this will differ slightly depending on whether the case concerns general matters, human rights, or international criminal law.
For the international criminal law section, a state party, the AU Assembly of Heads of State and Government or the AU Peace and Security Council may refer a case to the prosecutor, or the prosecutor may open it on their own (proprio motu).
The following entities/persons will be able to submit cases concerning all matters other than international criminal law matters (general international law, African Union law, human rights matters)::
- States Parties to the Protocol.
- The AU General Assembly.
- The AU Peace and Security Council.
- Pan-African Parliament.
- AU organs authorised by the AU Assembly.
- AU staff members (on appeals concerning matters under the AU Staff Rules and Regulations).
In addition to the entities in the preceding paragraph, the following entities will be able to submit cases concerning human rights:
- The African Commission on Human and Peoples’ Rights.
- The African Committee of Experts on the Rights and Welfare of the Child.
- African intergovernmental organisations accredited to the AU or its organs.
- African national human rights institutions.
- African individuals or African NGOs with Observer Status with the AU or its organs/institutions, but only concerning a State that has made a Declaration accepting the Court’s competence to receive such cases directly.
6. Who does the court have jurisdiction over?
The court will have jurisdiction spanning criminal law, human rights law, and general international law. Under its criminal jurisdiction both individuals (excluding sitting heads of state and certain senior officials during their time in office) and legal entities such as corporations can be prosecuted.
Only state parties may be brought before the court for violations of general international law and international human rights law on matters concerned with treaties ratified by the state.
7. Where does the court have international criminal jurisdiction?
The court may hear cases if the alleged crime was committed on the territory of a state party; if the alleged crime was committed by a national of a state party or against a national of a state party; or outside the territory of a state party and by non-nationals of a state party if the alleged crime threatens a vital interest of a state party.
8. When does the court’s jurisdiction begin?
The court’s criminal jurisdiction will apply only to crimes committed after the protocol enters into force for the first 15 who ratify. Thereafter the court can only try crimes committed in new states parties after that state has ratified it.
9. What crimes does the Malabo Protocol cover?
The Malabo Protocol covers fourteen crimes, some of which are not included in the mandates of any other supra-national court significantly expanding the number of perpetrators who can be held accountable. These crimes include:
Core international crimes:
- Genocide (also under the mandate of the ICC)
- Crimes against humanity (also under the mandate of the ICC)
- War crimes (also under the mandate of the ICC)
- The crime of aggression (also under the mandate of the ICC)
- The crime of unconstitutional change of government
Transnational crimes:
- Piracy
- Terrorism
- Mercenarism
- Corruption
- Money laundering
- Trafficking in persons
- Trafficking in drugs
- Trafficking in hazardous wastes
- Illicit exploitation of natural resources
The protocol also enables the AU Assembly, with the consensus of state parties, to extend the African Court’s jurisdiction to cover additional crimes.
10. What is the importance of including transnational crimes?
Including transnational crimes in the Malabo Protocol is vital for addressing accountability on the continent. The importance of African states playing a proactive and prominent role in addressing the continent’s challenges is particularly relevant, as the international community has often struggled to address the specific challenges Africa faces. By establishing an expanded African Court with international criminal jurisdiction, the protocol provides a dedicated forum for prosecuting these crimes, filling a significant gap in accountability.
11. What is the importance of the inclusion of corporate criminal liability?
Grave abuses by corporations are common, yet these entities are rarely prosecuted for their actions. The Malabo Protocol marks the first time that corporate criminal liability is addressed at the regional level, granting the court the jurisdiction to try these actors.
This not only directly benefits the victims/survivors of such abuses and deter future violations. It may also influence the evolution of international law and encourage other jurisdictions to hold corporations accountable.
12. How does the Malabo Protocol relate to the Merger Protocol?
The 2008 Protocol on the Statute of the African Court of Justice and Human Rights (the Merger Protocol) was designed to merge two previously separate judicial bodies, the African Court on Human and Peoples’ Rights (established in 1998) and the Court of Justice of the African Union (which has not yet been operationalised), into a single institution which would have a general international law section and a human rights section. Although this protocol has not yet entered into force, the Malabo Protocol seeks to expand the proposed court’s jurisdiction to include prosecution of international crimes.
While amendments to treaties not yet in force are uncommon, nothing in international law prohibits it and there are precedents demonstrating that it is possible to amend such treaties. This means that the Malabo Protocol can come into effect even if the underlying protocol hasn’t itself entered into force.
13. What is the relationship between the Malabo Protocol and existing international law?
The Malabo Protocol recognises current standards of international law, including international customary law. The definitions of the crimes in the protocol closely align with those in major treaties, such as the Genocide Convention, the Rome Statute of the ICC, and the African Charter on Democracy, Elections and Governance, to name a few. This alignment ensures that the definitions reflect international law and maintain consistency with the jurisprudence of the African Court. The Malabo Protocol effectively captures the current state of international law, ensuring that it remains relevant to address contemporary issues.
14. What are the immunity provisions and what are some of the concerns about them?
The immunity provisions of the Malabo have sparked significant attention. Article 46 indicates that “no charges shall be commenced or continued before the Court against any serving AU Head or State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”
Some have argued that this is a regressive provision in that it provides immunity for functioning state leaders in a way that has not been accepted by the ad hoc tribunals or the International Criminal Court. Although this is a valid concern, establishing an African Criminal Court is an important step forward in advancing justice on the continent. Moreover, these provisions are in line with customary international law on the question of personal immunity (immunity ratione personae) for heads of state and government and ministers of foreign affairs (the trio). It is important to keep in mind that the Malabo Protocol’s recognition of personal immunity of sitting heads of state does not translate to absolute immunity for these persons or indeed to immunity for their crimes (immunity ratione materiae). Rather, the immunity recognised in the Malabo Protocol is immunity from prosecution only during their term of office; these persons can still be prosecuted once they leave office for international crimes committed during their time in office. In addition, the Malabo Protocol does not preclude other accountability mechanisms. Leaders may still be subject to prosecution in domestic courts and other supra-national courts during their time in office.
Further, regardless of the provision on personal immunity, the Malabo Protocol also complements existing fora by allowing for prosecution of private citizens or corporations, who do not themselves enjoy immunity of any sort, as the Protocol represents a substantial move toward reducing impunity by extending criminal jurisdiction over ten new international and transnational crimes and including corporations as potential perpetrators. Thus the assertion that the Malabo Protocol undermines accountability is misleading as it rather reflects an effort to expand accountability for various actors and crimes.
15. How will the African Court of Justice and Human and People’s Rights complement other regional and international tribunals, including the ICC?
The African Court of Justice and Human and Peoples’ Rights has complementary jurisdiction. States (and courts of regional economic communities with such jurisdiction) are primarily responsible for investigating and prosecuting crimes within their jurisdictions. The African Court will only step in when these bodies have not acted.
One key benefit of the criminal section of the African Court is its broader jurisdiction, which aims to reduce impunity by addressing a wider range of crimes than the ICC. The African Court will address perpetrators that the ICC cannot reach, such as corporations and those involved in transnational crimes, thereby strengthening overall accountability. In specific situations regarding core international crimes that have occurred after the establishment of the court, states, the AU Assembly or the AU PSC may refer cases to either court, providing new options for accountability.
16. Will the court have sufficient resources to carry out its mandate?
Concerns have been raised about whether the expanded African Court will have sufficient resources and judges to effectively carry out its mandate. Although the number of judges increases from 11 to 16, many worry that this won’t be enough to manage the workload across three different sections. It is important to note that the current number of judges is sufficient to begin operations, but more will likely be needed as trials and appeals move forward.
Operating the expanded African Court will require a budget that exceeds the current funding of the African Court on Human and Peoples’ Rights. However, funding issues should not hinder ratification of the protocol. These challenges can be addressed by the AU as they arise, and the court’s funding may be influenced by its ability to achieve its objectives.
17. What are the challenges regarding ratification?
The Malabo Protocol will take effect thirty days after fifteen AU Member States deposit their instruments of ratification. Currently, fifteen countries have signed the Protocol, but only one (Angola) has ratified it. It is important to note that signing a treaty indicates agreement with its terms, but it does not create a binding legal obligation.
The slow ratification process is influenced by a variety of complex factors, including practical challenges and political considerations which may affect current perceptions of the protocol. There has been significant backlash against the immunity provision, which is often mischaracterised and misunderstood. Moreover, it is important to note that the protocol was adopted at a time of strong sentiments against the ICC, when there was a strong push to create an alternative framework for accountability. However, since then, those sentiments have calmed.
Noting the potential of the Malabo Protocol and understanding its implications are essential for states to understand the key role it can play in ensuring accountability for crimes on the African continent.
For more information, see for example:
Clarke, K. (2018, July 27). Strategy for ratification of the Malabo Protocol: A research project of the African Court Research Initiative (ACRI)
Oyugi, P. and Owiso, O. (2024, May 23). Why is the Malabo Protocol still on the shelf?, Africa Briefing,
