2024 marks ten years since the African Union (AU) states adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol), which would create a regional criminal court for Africa. The Protocol would add a criminal section alongside the general and human rights sections of the AU’s planned African Court of Justice and Human Rights (ACJHR), which would be established when the Sharm El Sheikh Protocol enters into force.
The Protocol is ambitious in many ways, largely due to the influence of the Pan African Lawyers Union (PALU) on the drafting process. It includes ten additional crimes (Article 28A), such as unconstitutional changes in government, piracy, terrorism, and corruption, beyond the four core crimes of genocide, crimes against humanity, war crimes, and aggression covered by the Rome Statute of the International Criminal Court (ICC). It also would introduce corporate criminal liability (Article 46C) alongside the standard individual criminal responsibility (Article 46B) in international criminal law. However, the Protocol also includes an immunity clause (Article 46A bis) that protects heads of state and government and senior government officials from prosecution while they are in office.
When adopted in 2014, the Malabo Protocol and the prospective “African Criminal Court” was widely seen as African leaders’ means of opposing the ICC, given its intense focus on Africa, by creating an alternative institution. Article 46A bis was also frequently criticized for enabling African leaders to evade international criminal legal accountability and promoting impunity. For example, in 2014, Human Rights Watch and 140 other civil society organizations (CSOs) issued a joint letter strongly condemning this immunity clause. (Other similarly critical statements are available here, here, and here.) Criticism of the Protocol drowned out the limited advocacy promoting its ratification and entry into force.
The 10th anniversary of the Protocol’s adoption, however, has revived African-led advocacy for the Protocol’s ratification and the creation of an African Criminal Court. While 15 states had already signed the Malabo Protocol, 2024 was a landmark year in which Angola provided the first ratification of the 15 required for the Protocol to enter into force. The renewed advocacy has, in turn, prompted opposition from key players on the continent. While the Protocol’s future remains uncertain, the debates over the Malabo Protocol and the future of the AU’s court reflect African agency more than ever before.
Advocacy from African Civil Society Organizations and the Protocol’s First Ratification
Recent civil society mobilization at the continental and national levels contributed to the Protocol’s first ratification in 2024. Supported by funding from the Open Society Foundations (OSF), the Coalition for an Effective African Court on Human and Peoples’ Rights (African Court Coalition) launched a campaign in 2022 to advocate, in collaboration with partners at the national level, for states to ratify the Malabo Protocol. Mobilized by this campaign, the Centre for Human Rights and Rehabilitation (CHRR Malawi) hosted an event to sensitize Malawian officials regarding the Protocol and promote Malawi’s ratification. In 2014, CHRR Malawi had signed the aforementioned letter criticizing the Protocol’s immunity clause, but in 2022, it was strongly advocating for ratification.
Nevertheless, it was the Angolan CSO KUTAKESA whose advocacy successfully secured the Protocol’s first ratification in May 2024. KUTAKESA worked closely with the Angolan Secretary of State for Human Rights and Citizenship in a persistent campaign that involved informing legislators, translating articles, and engaging media.
This success strengthened other CSOs’ advocacy. Several African CSOs celebrated Angola’s example and called on other states to follow suit. For example, Patrol-Africa, the Pan-African Alliance for Transparency and Rule of Law, despite the Protocol’s limitations with its immunity clause, encouraged states to ratify the Protocol, as well as the other three protocols regarding the AU’s judicial organs.
Leadership by the Office of the Legal Counsel of the African Union
The AU’s Office of the Legal Counsel, which centralizes advice on legal instruments for the AU’s organs and Member States, also recently exhibited unprecedented leadership in advocating for states to ratify the Protocol. The AU’s Legal Counsel at the time of the Protocol’s adoption, Vincent Nmehielle, had openly questioned the necessity of an international criminal jurisdiction and the AU’s financial commitment to the new court (see, e.g., his comments in 2014 and 2019). In contrast, the new AU’s Legal Counsel Hajer Gueldich, who started her position this year, has repeatedly promoted ratification of the Malabo Protocol.
On June 25 this year, the AU’s Office of the Legal Counsel, in collaboration with PALU and Atrocities Watch Africa, hosted representatives from AU member states as well as the legal, civil society, and academic communities in Addis Ababa for an event celebrating the 10th anniversary of the Malabo Protocol’s adoption. Gueldich’s speech, while acknowledging widespread criticism of the Malabo Protocol’s immunity clause, campaigned to “intensify efforts” towards obtaining the 14 remaining ratifications for the Protocol to enter into force. Other speakers at the AU event, such as Donald Deya of PALU, and the academics Chidi Odinkalu and Owiso Owiso, echoed Gueldich’s call for ratification.
Gueldich continued to use her first months as AU Legal Counsel to promote the Malabo Protocol among the legal and academic communities by giving lectures focused on the Protocol at the African-German Research Network for Transnational Criminal Justice in July and at an intensive course on human rights and international criminal law at the Université Technologique Bel Campus in Kinshasa in August. Most recently in November, Gueldich promoted the Protocol during a panel discussion commemorating the Protocol’s 10th anniversary in Kigali.
Opposition from African Court judges
In contrast to this recent momentum towards ratification from civil society and the AU Legal Counsel, judges of the current African Court on Human and Peoples’ Rights (AfCHPR) have been voicing significant concerns regarding the planned ACJHR with general, human rights, and criminal jurisdictions. Two AfCHPR judges, who spoke at the AU’s 10th anniversary celebration of the Protocol, were the dissenting voices among the speakers advocating for ratification of the Malabo Protocol. The judges argued against ratifying the Protocol based on its numerous legal and institutional issues and the challenges it poses for the current AfCHPR.
One AfCHPR judge framed the promotion of the Malabo Protocol as compromising the successful operation of the current AfCPHR. The judge cautioned that advocating for ratifying the Malabo Protocol for the planned ACJHR could divert civil society and states’ focus away from ratifying the current AfCHPR’s Protocol. The AfCHPR has been campaigning to gain further state ratifications of its founding Protocol as well as Article 34(6) declarations which enable individuals and NGOs to directly access the AfCHPR. The judge believed that simultaneously campaigning for ratifying the Malabo Protocol could cause confusion regarding which court state officials should support and undermine the AfCHPR’s costly and extensive sensitization efforts in African states. The judge also observed this split focus within the AU, where officials have opted to delay suggested reforms for the current ACtHPR (under Article 35 of the Court’s founding Protocol) until the planned ACJHPR is established.
Both judges raised numerous legal and institutional issues with the planned ACJHR and Malabo Protocol beyond the standard critique of the immunity clause. A judge raised how the planned ACJHR with criminal jurisdiction would have less human rights expertise and likely be slower to resolve cases, as the ACJHR would only have 5 human rights judges (Article 4, Malabo Protocol), compared to the current AfCHPR’s 11. Creating the ACJHR with new judges and registrar (Article 4, 6, Sharm El Sheikh Protocol) would also sacrifice valuable institutional memory. Another judge detailed how the coexistence of the 1998 Ouagadougou Protocol establishing the current AfCHPR, the 2008 Sharm El Sheikh Protocol for the proposed ACJHR, and the 2014 Malabo Protocol for the ACJHR’s criminal jurisdiction has created significant legal issues in terms of the law of treaties. Rather than encourage ratification, the judge advocated for the AU Assembly to withdraw and reconsider the latter two protocols. Both judges called for better support of the current AfCHPR instead of pursuing the ACJHR with criminal jurisdiction.
The African Criminal Court’s uncertain future
The prospects for an African Court with criminal jurisdiction remain uncertain. It remains to be seen whether advocates for the Protocol’s ratification will maintain the momentum generated during the Protocol’s tenth anniversary year and achieve the other 14 ratifications required for creating a criminal jurisdiction for the ACJHR. To make an African Criminal Court a reality, the Sharm El Sheikh Protocol establishing the ACJHR would also require another 8 ratifications to enter into force. As the debates during this anniversary year have indicated, generating consensus regarding the value of creating a new African Court with general, human rights, and criminal jurisdictions—as opposed to better supporting the existing African Court on Human and Peoples’ Rights—will be challenging.
