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The Malabo Protocol: The legal muscle to tackle crimes of dignity in Africa.

“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. In essence, 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 similar to the International Criminal Court (ICC) but within a narrowly defined geographical scope, and over an expanded list of crimes.” Amnesty International

What is the Malabo Protocol?

In June 2014 the African Union adopted the Malabo Protocol, calling on all AU member states to sign and ratify it. The Malabo Protocol, named after the city in Equatorial Guinea where it was signed, is an amendment to the Protocol on the Statute of the African Court of Justice and Human Rights. If implemented, it would establish an African Court of Justice and Human Rights, with extended jurisdiction to hear international criminal cases.

The Malabo Protocol is the first of its kind. It provides for a Victims and Witness Unit,  an independent Defence Office (unlike other tribunals or international courts) and accommodates various crimes of great concern in the international community. Most tribunals or courts accommodate and define crimes such as genocide, crimes against humanity and war crimes. The Protocol would expand the list of crimes to include rape, corruption and human trafficking, money laundering and illicit exploitation of natural resources, among others.

The Protocol may be able to bridge the gap between international crimes that are addressed and those that are not. Those crimes that might be brought into the jurisdiction of the AU include crimes which greatly infringe on human rights in terms of service delivery, access to social welfare, personal dignity, economic prosperity and accountability.

Most of these crimes, left unaddressed, have had major socio-political consequences. Africa has seen an emergence of tax revolts due to lack of service delivery, large foreign corporations have exploited or monopolised local mining or gas industries and states are losing billions to illicit financial flows out of the continent. The Malabo Protocol would give an African Court of Justice and Human Rights the jurisdiction to hear crimes which greatly affect Africa, but which might not be vital for Europe or the West.

Concerns over its implications

Ratification is a sovereign act by a state to submit to an international text. To date only 5 countries have ratified the Protocol out of the 28 needed for it to come into force.

Critics argue that the Malabo Protocol is a political tool to settle scores with the International Criminal Court, that it would be used as a strategic mechanism to shield senior officials from prosecution through diplomatic immunity. The fact that establishing this Court has been mulled over for more than three decades is often blurred by critics and it is vital to note the various successive provisions and legal instruments in the African Union which led to the adoption of the Protocol in 2014.

Critics also contend that merging the African Court of Justice and the African Court of Human and Peoples’ Rights will constitute to gaps in the efficiency of the Court. The African Union, however, has already acted on these concerns and the Protocol has undergone a number of recommendations and draft amendments. These include:

  1. A popular uprising should no longer be considered a criminal offence, under Article 28E.

  2. All parties can communicate crimes to the Court.

  3. The definition of terrorism should be vivid.

  4. Article 46A bis (which provides unlimited immunity for officials) should be amended to be on par with international law. Failure to do so will nulify the Protocol.

The need for enhanced legal powers

It is often the case that we can comprehend the future but not the means to it. Robert Mugabe’s demise can testify to that. There is a gap within a transformative society, Africa needs a surge in justice and peace.

Time after time, Omar al-Bashir evades arrests, Jacob Zuma is dogged by corruption allegations, Joseph Kabila refuses to vacate office, Yoweri Museveni clings to power. In all these, crimes are committed and the main one tends to be a financial crime, either extortion, money laundering and embezzlement. Crimes which induce poverty, debts, stumbling economies and civil wars are inadequately prioritized. Ratifying the Malabo Protocol could change this.

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