Why is the Malabo Protocol still on the shelf?

Ten years after African leaders adopted a document in Equatorial Guinea that aimed to provide the continent with the most expansive and ambitious understanding and definition of international crimes, reflecting both the progressive development of international criminal law and awareness of the unique and debilitating impact that some of these crimes have had and continue to have on Africa and its peoples, it has still not entered into force. Phoebe Oyugi and Owiso Owiso look at why ratification has been slow

On June 27, 2014, leaders at the African Union (AU)) summit in Malabo, Equatorial Guinea adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, popularly referred to as the Malabo Protocol.

Before and around the time of the adoption, there was mounting tension between the AU and the International Criminal Court (ICC). The AU criticised the ICC for purportedly targeting the continent unduly by politicising and misusing its prosecutorial powers against African leaders; for operating in a manner that undermined the sovereignty and stability of African states; and which was antithetical to sustainable peace.

This tension was first clearly expressed in the AU summit decision in July 2009 directing member states not to cooperate with the ICC in arresting or surrendering the then President of Sudan, Omar Al Bashir, and its earlier decision in February 2009 to consider expanding the jurisdiction of the African Court on Human and Peoples’ Rights (ACHPR) to include an international crimes chamber.

The summit decided in 2013 to fast-track the expansion of the ACHPR’s jurisdiction, resulting in the adoption of the Protocol in June 2014 as a continental response to international crimes. This shift was intended to be a departure from reliance on global mechanisms, signalling Africa’s desire for autonomy and primacy over justice and accountability processes on the continent.

Ten years after its adoption, the Protocol is, however, yet to enter into force. Under Article 11, the Protocol will come into effect 30 days after the deposit of instruments of ratification by 15 member states. As of the latest information available, 15 states (Benin, Chad, Comoros, Congo, Equatorial Guinea, Ghana, Guinea Bissau, Guinea, Kenya, Mozambique, Mauritania, Sierra Leone, Sao Tome & Principe, Togo and Uganda) have signed the Protocol but only one has ratified it.

However, signature of a treaty is merely an expression of agreement with the provisions. At best it only signifies an intent to undertake at a future date the process of being bound by the treaty.

Ratification confirms the consent of a state to be bound by a treaty and typically requires formal approval from organs of the government, followed by the deposit with the Chairperson of the AU Commission of the instrument of ratification authorised by the President or Prime Minister. On March 5, 2024, Angola informed the AU Commission that it had approved the ratification of the Protocol and would soon deposit its instrument of ratification.

The reasons for the slow ratification of the Protocol are complex and multifaceted, reflecting both practical challenges and political considerations. As the 10th anniversary of the adoption of the Protocol approaches, it is important to recall the reasons why it should be ratified and to advocate for states to do so swiftly.

The Protocol established the ACJHPR by merging the existing African Court on Human and Peoples’ Rights and the yet-to-be-established Court of Justice of the African Union. Annexed to the Protocol is the Statute of the ACJHPR, Article 28A of which provides for the international criminal jurisdiction of the Court.

The provision bestows upon the ACJHPR jurisdiction over a wide category of crimes: genocide, war crimes, crimes against humanity, as well as crimes of aggression, unconstitutional change of government, piracy, terrorism, mercenaryism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes and illicit exploitation of natural resources.

Thus, the Protocol provides the most expansive and ambitious understanding and definition of international crimes since the dawn of international law, reflecting both the progressive development of international criminal law and awareness of the unique and debilitating impact that some of these crimes have had and continue to have on the African continent and its peoples. By ratifying the Protocol, African states would therefore be demonstrating their commitment to accountability for these serious crimes and to fostering stability, peace and the rule of law across the continent.

Due to their cross-border nature, crimes such as human trafficking, drug trafficking, trafficking in hazardous wastes, terrorism, and money laundering pose significant challenges to African states by undermining security, stability and development. Organised criminal networks exploit weak borders and governance structures, fuel violence, and strain resources. Effectively combating transnational crimes and mitigating their effects, therefore, require regional and global cooperation. By expanding the jurisdiction of the ACJHPR to include these crimes and providing reasonably detailed and clear definitions of these crimes, the Protocol has made a significant contribution to Africa’s efforts to combat transnational crimes. Ratifying it would, therefore, demonstrate African states’ commitment to addressing these complex challenges through regional cooperation and collective action.

The African continent continues to grapple with intractable conflicts rooted in historical injustices; communal tensions; political instability; external interference; competition for, and illicit exploitation of, resources; weak governance systems; and corruption. These challenges threaten peace and security in Africa, which are essential prerequisites for sustainable development and prosperity.

Some of these challenges affect the African continent in unique ways that the existing global legal and institutional frameworks and mechanisms have so far either underappreciated or neglected altogether. The Protocol uniquely translates these challenges into actionable legal commitments and provides an institutional framework for ensuring individual criminal accountability for them.

The ACJHR, in particular, can play a vital role in holding perpetrators of violence accountable and supporting efforts to build sustainable peace in conflict-affected states. By ratifying the Protocol, therefore, African states will contribute to strengthening the mechanisms for conflict prevention and resolution and to addressing root causes and post-conflict reconstruction.

Many African states continue to grapple with unconstitutional changes of government and corruption which undermine good governance, stability and democratic processes. These challenges often also hinder progress towards accountable governance and respect for human rights and fundamental freedoms.

The Protocol defines unconstitutional change of government and serious corruption as international crimes and establishes a judicial mechanism to ensure individual criminal accountability for such threats to democracy, thereby helping to safeguard political stability, good governance and democratic institutions. Ratifying it would therefore send a clear signal that African states are committed to upholding democratic governance and protecting the rights of African peoples.

The concept of “African solutions to African problems” is deeply rooted in Africa’s history of foreign domination, exploitation and imposition of external “solutions” that often disregarded local context, needs and cultures. As a result, there is a strong aversion among most Africans towards foreign intervention and neo-colonialism, which perpetuate dependency and undermine self-determination.

Embracing indigenous approaches to problem-solving is seen as a means to reclaim agency, sovereignty and cultural autonomy; to counter the legacies of colonialism and subjugation, and promote autochthonous development. The AU is deeply committed, at least in theory, to strengthening and affirming the validity of its responses to challenges facing the continent. The Protocol can, therefore, be considered as a response crafted by the AU in repudiation of acontextual one-size-fits-all global responses to international crimes. The Protocol reflects the principle of “African solutions to African problems”.

By creating a regional mechanism for criminal justice and accountability, the Protocol demonstrates Africa’s capacity to address its own problems and challenges without external interference, thereby asserting the primacy of African agency in shaping the continent’s future. The Protocol represents a significant opportunity for African states to strengthen human rights, justice and the rule of law on the continent. By ratifying this Protocol, AU member states will demonstrate their commitment to combating impunity, protecting human rights and fundamental freedoms, enhancing regional integration, and fostering peace and security.

On the 10th anniversary of its adoption, it is imperative that African states take concrete steps to ratify and implement the Malabo Protocol for the benefit of all African peoples.

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