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The African Criminal Court pp 11–28Cite as

Historical and Political Background to the Malabo Protocol

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Part of the book series: International Criminal Justice Series ((ICJS,volume 10))

Abstract

In June 2014 the Assembly of the African Union adopted the Malabo Protocol which in its Annex includes amendments to the Statute of the African Court of Justice and Human and Peoples’ Rights empowering the Court with international criminal jurisdiction. This chapter gives an overview of the historical and political background to the Malabo Protocol and discusses the rationales behind conferring on an African regional court international criminal jurisdiction. It also addresses certain constraints that, from the point of view of the author, will prevent the Court from effectively prosecuting international crimes in Africa, even if the protocol ever enters into force.

This chapter is an updated version of an article that first appeared as Abass (2013) European Journal of International Law 24:933–946.

All internet sources in this chapter were last visited on 30 June 2016.

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Notes

  1. 1.

    Assembly/AU/Dec. 397 (XVIII) (2012).

  2. 2.

    Assembly/AU/Dec. 213 (XII) (2012).

  3. 3.

    EX.CL/731 (XXI)a; (2013).

  4. 4.

    Min/Legal/ACJHR-PAP/3(II) Rev. 1.5.

  5. 5.

    Decision on the Protocol on Amendments to the Protocol on the Statute of the African Court on Human and Peoples’ Rights, Assembly of the African Union, 19th Ordinary Session, Assembly/AU/Dec. 427 (XIX) (2012).

  6. 6.

    AfCHPR/LEGAL/Doc. 3, at 4.

  7. 7.

    Ibid., at 5.

  8. 8.

    EX.CL/Dec. 766 (XXII), at 1 Doc. PRC/Rpt (XXV). Although this remit did not form part of the issues the 2012 Summit referred to the Commission, it would appear that the January 2013 Assembly took this issue on board given the extensive attention the Dec. 2012 AU Experts’ Meeting in Arusha gave the issue.

  9. 9.

    Thus far eight countries have signed the Protocol, namely: Benin, Congo, Kenya, Ghana, Guinea-Bissau, Mauritania, Sierra Leon, Sao Tome and Principe, AU, http://au.int/en/sites/default/files/treaties/7804-sl-protocol_on_amendments_to_the_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_19.pdf. See also Amnesty International, Malabo Protocol, Legal and Institutional Implications of the Merged and Expanded African Court, 2016.

  10. 10.

    The Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11; see also Bamba 2003.

  11. 11.

    The only known instance of combined jurisdiction by an international tribunal, though in particular circumstances, is the Caribbean Court of Justice. Article 4 of the Agreement establishing the Court provides that “subject to para 2, an appeal shall lie to the Court with the special leave of the Court from any decision of the Court of Appeal of a Contracting Party in any civil or criminal matter”: available at: www.caribbeancourtofjustice.org/wp-content/uploads/2011/09/ccj_agreement.pdf. But see Viljoen 2012, arguing that the African Union’s proposition in this regard is unprecedented.

  12. 12.

    Article 46 of the Malabo Protocol (Annex). See on this provision the chapter by van der Wilt in this book.

  13. 13.

    See, for instance, Murungu 2011, p. 1073. According to Murungu, “the origin of an African idea or priority to prosecute international crimes in Africa had begun in 2006”. As for Deya 2012, p. 24 “[t]he first body to suggest that due consideration should be given to an additional international criminal jurisdiction for the African Court was the group of (African) Experts, who were commissioned by the African Union (AU) in 2007–2008 to advise it on the ‘merger’ of the African Court of Human and Peoples’ Rights with the African Court of Justice”. While Murungu clearly erred in thinking that 2006 was the first attempt ever for Africans to contemplate the idea of international prosecution, Deya limited his dateline to only when the idea was first suggested in the context of the proposed African Court.

  14. 14.

    See M’Baye 2002, p. 65.

  15. 15.

    Ibid.; see also Viljoen 2004, pp. 4–5.

  16. 16.

    28 UN GAOR Supp. (No. 30), at 75, UN Doc. A/9030 (1974), 1015 UNTS 243, entered into force 18 July 1976.

  17. 17.

    “Rapporteur’s Report of the Ministerial Meeting in Banjul, The Gambia, Organization of African Unity”, at para 13, OUA Doc. CAB/LEG/67/Draft. Rapt. Rpt (II) Rev. 4, reprinted in Heyns (ed.) 2002, p. 95 (emphasis added).

  18. 18.

    UN GA Res 2202 A (XXI), 16 Dec. 1966.

  19. 19.

    UN Doc. S/RES/556 (1984) adopted 23 Oct. 1984.

  20. 20.

    Article V of the Apartheid Convention.

  21. 21.

    See Dugard 2008. See also Article V of the Apartheid Convention.

  22. 22.

    See AU Committee of Eminent African Jurists 2006.

  23. 23.

    See Human Rights Watch 2005.

  24. 24.

    Ibid.

  25. 25.

    See Assembly/AU/Dec. 127 (VII) (Doc. Assembly/AU/3/VII).

  26. 26.

    See Amnesty International 2016.

  27. 27.

    See AU Committee of Eminent African Jurists 2006, para 22 et seq.

  28. 28.

    But see Decisions of the Committee Against Torture Under Article 22 of the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment, Committee Against Torture, 36th Session, Communication No. 181/2001 (2001), where the Committee condemned Senegal for refusing to extradite Habré to Belgium and held that the country had violated Articles 5(2) and 7 of the Torture Convention to which Senegal is a party.

  29. 29.

    Decision on the Hissène Habré Case and the African Union, Assembly of the African Union, 6th Ordinary Session, Assembly/AU/Dec. 103 (VI) (2006).

  30. 30.

    See AU Committee of Eminent African Jurists 2006.

  31. 31.

    Ibid., para 31.

  32. 32.

    Ibid., para 34.

  33. 33.

    On this crime see the chapter by Kemp and Kinyunyu in this book.

  34. 34.

    Assembly/AU/Dec. 147 (VIII) (2007).

  35. 35.

    See also Article 28(E)(1)(D) of the Malabo Protocol (Annex).

  36. 36.

    See preamble to the Charter on Democracy, Election, and Governance.

  37. 37.

    OAU Doc. AHG/Dec. 141 (XXXV) (1999); OAU Doc. AHG/Dec. 142 (XXXV). Both decisions condemned unconstitutional changes of government in Africa.

  38. 38.

    OAU Doc. AHG/Dec. 5 (XXXVI) (2000).

  39. 39.

    OAU Doc. AHG/Dec. 1 (XXXVII) (2001).

  40. 40.

    AU Doc. AHG/Dec. 235 (XXXVIII), Annex 1 (2002).

  41. 41.

    OAU Doc. AHG/Dec. 1 (XXXVIII) (2002).

  42. 42.

    See, for instance, Murungu 2011, p. 1081.

  43. 43.

    Ibid.

  44. 44.

    Abraham 2015, p. 8.

  45. 45.

    Murungu 2011, p. 1075.

  46. 46.

    Emphasis added.

  47. 47.

    Murungu 2011, p. 1081.

  48. 48.

    Ibid.

  49. 49.

    See App. No. 001/2011, Femi Falana v. African Union, Judgment of 26 June 2012.

  50. 50.

    See Murungu 2011, p. 1081.

  51. 51.

    See Article 16 of the Malabo Protocol (Annex).

  52. 52.

    Hirsch 2012.

  53. 53.

    Article 19bis of the Malabo Protocol (Annex).

  54. 54.

    See on this issue the chapter by van der Wilt in this book.

  55. 55.

    The Economic Community of West African States was founded on 28 May 1975, with the signing of the Treaty of Lagos.

  56. 56.

    The Community of Sahel-Saharan States, established on 4 February 1998 with its seat in Libya. See http://www.au.int/en/recs/censad.

  57. 57.

    The Common Market for Eastern and Southern Africa was established in December 1994, with its head-quarters in Lusaka, Zambia. See http://www.comesa.int/overview-of-comesa/.

  58. 58.

    The Southern African Development Community was established on 1 April 1980, and has its seat in Gaborone, Botswana. See www.sadc.int/.

  59. 59.

    Judgment, Communication No. 001/2008 (African Court on Justice and Human Rights, 30 July 2010).

  60. 60.

    On this issue see the chapter by Tladi in this book.

  61. 61.

    On this issue see Werle et al. (eds.) 2014.

  62. 62.

    Asylum (Colombia v. Peru) [1950] ICJ Rep 266.

  63. 63.

    Ibid., at 277.

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  1. Office of Overseas Affairs and Investment, Lagos State, Nigeria

    Ademola Abass

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  1. Faculty of Law, Humboldt-Universität zu Berlin, Berlin, Germany

    Gerhard Werle

  2. Faculty of Law, Humboldt-Universität zu Berlin, Berlin, Germany

    Moritz Vormbaum

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Abass, A. (2017). Historical and Political Background to the Malabo Protocol. In: Werle, G., Vormbaum, M. (eds) The African Criminal Court. International Criminal Justice Series, vol 10. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-150-0_2

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