THE MALABO PROTOCOL: AN ANALYSIS OF THE IMPLICATIONS OF THE MERGED AND EXPANDED AFRICAN COURT.
Keywords:
protocol, ACJHPR Amendment, Human Rights, African Court of Justice, CriminalAbstract
On 27 June 2014, African Heads of States and Governments meeting in Malabo, Equatorial Guinea, adopted a protocol on Amendments to the protocol on the statute of the ACJHR (known as ACJHPR Amendment). This amendment revises the (not yet in force) protocol on the statute of the African Court of Justice and Human Rights (the ACJHR Protocol) which was adopted in 2008 to merge the African Court on Human and Peoples rights with the proposed African Court of Justice. The court will have jurisdiction to try international crimes and could play a significant role in a continent afflicted withconstant conflicts and impunity.
However, a number of concerns are raised with regard to the expansion of the African Court’s jurisdiction. Some of these concerns are the court’s ambitiousjurisdictional reach and its capacity to fulfill not only its newfound International Criminal obligations, but also the effect that this extra burden will have on the courts’ ability to deal with its general and Human Rights obligations.
The paper calls on Civil Society Organizations and citizens to engage with their governments and the AU to address these concerns in order to make this court the most effective regional court. The paper also calls on member states to amend specific provisions of the protocol.
References
1. Decision on the Draft Legal Instruments, Assembly/AU/Dec. 529(XXIII).
2. Malabo Protocol, Preamble, paragraphs 9, 10, 11, 12, and 16.
3. Amnesty International, ‘Our job is to shoot, slaughter and kill’: Boko Haram’s reign of terror in north -east Nigeria (Index: AFR 44/1360/2015), April 2015; Amnesty International, Stars on their shoulders, blood on their hands: War crimes committed by the Nigerian military (Index: AFR 44/1657/2015), June 2015.
4. Amnesty International, Human rights under fire: Attacks and violations in Cameroon’s struggle with Boko Haram (Index: AFR 17/1991/2015), September 2015.
5. Final report of the African Union Commission of Inquiry on South Sudan available at www.peaceau.org/uploads/auc iss.final.report.pdf (Last accessed on 19 November 2016).
6. See for example Amnesty International, Crying for justice: Victi ms’ perspectives on justice for the post -election violence in Kenya (Index: AFR 32/001/2014), July 2014.
7. See for example ‘Immunity before the African Court of Justice and Human and Peoples’ Rights – The potential outlier’ available at www.justsecurity.org/ 12732/immunity-african-court-justice- human-peoples-rights-the-potential- The Malabo Protocol: An Analysis of the Implications Carles and Penda JHRLP (2019) 56–69 © Law Journals 2019. All Rights Reserved Page 67 outlier/ (Last accessed on 4 January 2016); G Abraham ‘Africa’s evolving continental court structures: At the crossroads? SAIIA Occasional Paper 209, January 2015, available at www.sa iia.org.za/occasional- papers/africas-evolving-continental-court- structures-at-the-crossroads (Last accessed 4 January 2015); ‘Protecting the powerful: The African Union’s response to allegations of human rights violations’ available at http://cjicl.org.uk/2015/02 /02/protecting-powerful-african-unions- response-allegations-human-rights- violations/ (Last accessed 4 January 2015).
8. Amnesty International, Open letter to the heads of state and government of the African Union, Ref: AFR 01/012/2014; Amnesty Interna tional, African Union: Establishment of independent African Court on Human and Peoples’ Rights must be top priority’, available at www.amnesty.org.au/news/comments/943 / (Last accessed 7 January 2016); Amnesty International, International Criminal Court: Th e contribution Africa can make to the review conference, AFR 01/017/2009, October 2009.
9. OAU CAB/LEG/67/3 rev 5, 21 ILM 58 (1982), entered into force 21 October 1986.
10. Draft African Charter on Human and Peoples’ Rights, prepared for the Meeting of Experts in Dakar, Senegal, 28 November – 8 December 1979, OAU/CAB/LEG/67/1, introduction, para 4; reprinted in C. Heyns (ed), Human Rights Law in Africa 1999, Kluwer Law International, at p.65.
11. Protocol of the Court of Justice of the African Union, Article 2(2).
12. Report on the Decision of the Assembly of the Union to merge the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, Executive Council, Sixth Ordinary Session, 24 -28 January 2005, Abuja, Nigeria, EX.CL/162, pp. 1-2.
13. Decision on the seats of the organs of the African Union, Assembly/AU/Dec.45(III). See also Decision on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, Assembly/AU/Dec.83(V).
14. Report of the Committee of Eminent African Jurists on the Case of Hissene Habre, paras. 35 and 39. The Report is available at www.hrw.org/legacy/justice/ habre/CEJA_Report0506.pdf (Last accessed on 5 January 2016).
15. Ibid, paras. 40-42.
16. In 2007, a French judge indicted a number of Rwandan state and military officials for their alleged roles in the 1994 genocide. This led to, inter alia, the November 2008 arrest in Germany of Rose Kabuye, the Chief of Protocol of Rwandan President Paul Kagame. In February 2008, a Spanish judge similarly issued international arrest warrants against 40 senior Rwandan state offices for their alleged involvement in the 1994 genocide. For a detailed list of indictments issued by European courts against senior Af rican state officials see The African Union -European Union Expert Report on the Principle of Universal Jurisdiction, Council of European Union, Brussels, 16 April 2009, 8672/1/09. REV 1, available at www.africaeupartnership.org/sites/default/ files/documents/rapport_expert_ua_ue_co mpetence_universelle_en_0.pdf (Last accessed 5 January 2017).
17. The ICC issued the first warrant of arrest against Sudanese President Omar Hassan Ahmad Al Bashir on 4 March 2009. It issued a second warrant of arrest against him on 12 July 2010. Al Bashir is alleged to have committed as an indirect co - perpetrator acts amounting to crimes against humanity, war crimes, and genocide, in the Darfur region of Sudan. The situation in the Darfur was referred to the ICC by the UN Security Council on 31 March 2005. The ICC made the decision to open investigations on 6 June 2005.
18. The ICC issued its authorization to the Prosecutor to open investigations into the situation in Kenya on 31 March 2010. This led to the indictment of six Kenyans for their alleged role in the 2007/2008 post - election violence. Eventually, charges were opened against three of the initially JHRLP (2019) 56–69 © Law Journals 2019. All Rights Reserved Page 68 indicted individuals: Muigai Uhuru Kenyatta, the current President of Kenya; William SamoeiRuto, the current Deputy President of Kenya; and Joshua arap Sang, a radio journalist. On 13 March 2015, the ICC withdrew charges against Kenyatta on the basis of an application by the Prosecutor. Kenyatta had been charged with the crimes against humanity of murder, deportation or forcible transfer, rape, persecution, and other inhumane acts. The trial of William Ruto and Joshua arap Sang is pending before the ICC. Ruto and Sang are charged with the crimes against humanity of murder, forcible transfer, and persecution.
19. Decision on the progress report of the Commission on the Implementation of Decision Assembly/AU/Dec.270 (XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.296 (XV); Decision on the Application by the International Crimi nal Court (ICC) Prosecutor for the Indictment of the President of the Republic of Sudan, Assembly/AU/Dec.221 (XII), 2009; Solemn Declaration of the Assembly of the Union on Sudan, Assembly/AU/Decl.3 (XVI), Jan 2011, para 5. See also re Libya, Decision on t he Implementation of the Assembly Decisions on the International Criminal Court, Assembly/AU/Dec.366 (XVII); Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245 (XIII), Rev.1; Decision on the Implementation of the Assembly Decisions on the International Criminal Court, Assembly/AU/Dec.366 (XVII); Decision on International Jurisdiction, Justice and the International Criminal Court (ICC), Assembly/AU/Dc.482 (XXI).
20. Decision on the implementation of the Assembly Decision on the abuse of the principle of universal jurisdiction, Decision Assembly/AU/Dec. 213(XII), 4February 2009. See also Decision on the Implementation of the Assembly Decisions on the International Criminal Court, Ass embly/AU/Dec.366 (XVII), para 8.
21. See for example M. du Plessis, ‘A new regional international criminal court for Africa?’ 2 SACJ (2012) 286; F Viljoen ’AU Assembly should consider human rights implications before adopting the Amending Merged African Court Protocol’, Afric an Law, 23 May 2012, http://africlaw.com/2012/05/23/au- assembly-should-consider-human-rights- implications-before-adopting-the- amending-merged-africancourt- protocol/ (Last accessed 5 January 2016); Institute for Security Studies, Implications of the AU decision to give the African Court jurisdiction over international crimes’, Paper No. 235, J une 2012, available at www.issafrica.org/uploads/Papers235- AfricaCourt.pdf (accessed on 4 January 2017).
22. M. du Plessis, ‘A case of negative regional complementarity? Giving the Afri can Court of Justice and Human Rights Jurisdiction over International Crimes’, 27 August 2012, EJIL Talk, http://www.ejiltalk.org/a-case-of-negative- regional-complementarity-giving-the- africancourt- of-justice-and-human-rights- jurisdiction-over-international-crimes/
23. Decision on the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Assembly/A U/Dec. 427(XIX), para 2.
24. Report on the Workshop on the Definition of Crimes of Unconstitutional Change of Government and Financial and Structural Implications, AfCHPR/LEGAL/Doc.3, para. 12.
25. Ibid, para. 16.
26. Decision on the Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, EX.CL/Dec.766 (XXII) para 2.
27. Decision on the Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights Doc. PRC/Rpt(XXV), EX.CL/Dec.766 (XXII) para 3. The Malabo Protocol: An Analysis of the Implications Carles and Penda JHRLP (2019) 56–69 © Law Journals 2019. All Rights Reserved Page 69
28. ‘Press Release: African Union hosts Meeting of Ministers of Justice and Attorneys General’, available at www.au.int/en/sites/default/files/newseven ts/pressrelease/13148-pr-pr- 102__african_union_hosts_meeting_of_mi nisters_of_justice_andattorneys_general.p df (Last accessed on 6 January 2017).
29. Opening statement by Prof. Vincent O. Nmehielle, Legal Counsel and Director for Legal Affairs of the African Union Commission’, 1 st Session of the Specialized Technical Committee on Justice and Legal Affairs (Government Legal Experts), available at www.au.int/en/sites/default/files/newseven ts/workingdocuments/13148-wd-lc- opening_statement-stc_meeting-experts- may_2014_0.pdf (Last accessed 6 January 2017)
30. See, for example, Amnesty International, Open letter to the heads of state and government of the African Union, Ref: AFR 01/012/2014; Human Rights Watch ‘Statement regarding immunity for sitting officials before the expanded African Court of Justice and Human Rights’ available at www.hrw.org/news/2014/ 11/13/statement-regarding-immunity- sitting-officials-expanded-african-court- justiceand (Last accessed on 4 January 2017)
31. Decision on the Draft Legal Instruments, Assembly/AU/Dec.529 (XXIII).
32. Decision on the Progress Report of the Commission on the Implementation of Previous Decisions on the International Criminal Court, Assembly/AU/Dec.547 (XXIV), para 15 and 17(b).
33. Kindiki K, ‘The proposed integration of the African Court of Justice and the African Court of Human and Peoples’ Rights: legal difficulties and merits’ [2007] AJICL 138.
34. Tuinstra J, ‘ defending the defenders: The role of defence counsel in international criminal trials’ [2010] JICL 8, 463–486.
35. Du Plessis M, ‘Shambolic, shameful and symbolic: Implications of the African Union’s immunity for African leaders’ [2014] ISS Paper 278, 4.
36. Institute for Security Studies, Implications of the AU decision to give the African Court jurisd iction over international crimes, issue paper 235, June 2012.
37. Du Plessis M, ‘Shambolic, shameful and symbolic: Implications of the African Union’s immunity for African leaders’ [2014] ISS Paper 278, 6.
38. Decision on the Progress Report of the Commission on the Implementation of Previous Decisions on the International Criminal Court (ICC), EX.CL/Dec. 868(XXVI), para xii.
39. Decision on the Progress Report of the Commission on the Implementation of Previous Decisions on the International Criminal Court (ICC), EX.CL/Dec. 868(XXVI), para xiv (b).
40. ‘EU Statement at the African Judicial Dialogue, 6 November 2015, Arusha, Tanzania’ available at http://eeas.uropa.eu/delegations/african_un ion/documents/press_corner/eu-statement- judicial-dialogue-06-11-2015_en.pdf (accessed on 13 January 2017).
41. Report on the Financial and Structural Implications of Extending the Jurisdiction of the African Court of Justice and Human Rights to Encompass International Crimes, Appendix 1.
42. Malabo Protocol, Preamble, para. 6.
43. Malabo Protocol, Article 4 and 7(1).
44. Malabo Protocol, Article 7(2).
45. Malabo Protocol, Article 6.
46. Protocol on the Establishment of the African C ourt on Human and Peoples’ Rights, Articles 5 and 34(6).
47. Amended ACJHR Statute, Article 30(f). Cite this Article Ngatchou T oto Carles, Akama Samuel Penda. The Malabo Protocol: An Analysis of the Implications of the Merged and Expanded African Court . Journal of Human Rights Law and Practice . 2019; 2(2): 56–69p.
