MALABO PROTOCOL GRANTING INTERNATIONAL CRIMINAL JURISDICTION TO THE AFRICAN COURT OF JUSTICE & HUMAN RIGHTS.

2015-01-28

A BRIEF

 ON THE MALABO PROTOCOL GRANTING INTERNATIONAL CRIMINAL JURISDICTION TO THE AFRICAN COURT OF JUSTICE & HUMAN RIGHTS.

 (Adopted in Malabo Equatorial Guinea in June 2014)

 

Introduction

 

The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human and Rights was adopted in Malabo, Equatorial Guinea on 27 June 2014. The Malabo Protocol extends the jurisdiction of the African Court to include an international criminal mandate. Once the Protocol enters into force - after gaining the requisite 15instruments of ratification - the Court will be vested with three distinct but interconnected jurisdictions. These are: human and peoples’ rights; ‘general affairs’ as well as individual criminal responsibility and corporate criminal liability for a wide range of international crimes.

The process of elaborating a Draft Protocol granting international crimes jurisdiction to the African Court was initiated by Assembly Decision, Assembly/AU/Dec.213 (XII), on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, adopted at its Twelfth Ordinary Session held in Addis Ababa from 1- 3 February 2009. The decisionrequested the AU Commission, in consultation with the African Commission on Human and Peoples’ Rights, and the African Court on Human and Peoples’ Rights, to examine the implications of the Court being empowered to try international crimes such as genocide, crimes against humanity and war crimes, and report thereon to the Assembly in 2010. Thus, the initial conceptualization of the African Court exercising such competence was based on the grave concern by African states at the growing judicial adventurism in European states, notably France and Spain, where national authorities were initiating criminal prosecutions against African leaders and citizens for offences that allegedly occurred in Africa, by abusively applying the principle of universal jurisdiction.

The motivation for Assembly decision can also be found in the process of putting Hissen Habre on trial in Africa for atrocities committed in Chad, when the Assembly considered than an African judicial mechanism was the best option but was not feasible because it would entail amending the Protocol on the African Court and waiting until it enters into force before trying Hissen Habre. Much later, the process gained momentum within the context of concerns that the ICC was targeting Africa.

Current Status of the Malabo Protocol

Since it adoption on 27 June 2014, the Malabo Protocol has neither been signed nor ratified by any State Party. This state of affairs arose partly because the Protocol was not opened for signature, as is the usual practice, immediately after its adoption in Malabo, Nevertheless, it is understood that the Protocol will be opened for signature during the forthcoming Session of the Executive Council and the Assembly.The Protocol and the Statute annexed to it will enter into force thirty (30) days after the deposit of the instruments of ratification by fifteen (15) Member States.In accordance with the Vienna Convention on the Law of Treaties, only the Head of State and government and the Minister of Foreign Affairs are entitled to sign an instrument committing their states without having to produce “Full Powers”.

It would be correct to say that OAU/AU treaties take on average about five to six years to come into force. The only notable exceptions are the Constitutive Act (The Act) of the African Union (20000, which took less than two years to come into force (after receiving the requisite ratification of two thirds of member states and the Protocol to the African Charter on Human and peoples Rights relating to the Rights of Women in Africa(2003)which took about three years to come into force. In both cases there were forces working to ensure early ratification. In the case of the Act, it was none other than Colonel Gadhafi and in the case of the Protocol it was organized women groups (including Equality Now and FEMNET based in Nairobi) that launched innovative advocacy campaigns often intended to name and shame states that had neither signed and ratified or those that had only signed and not ratified.

Accordingly, if no state emerges as a catalyst or sponsor of the Protocol to lead a campaign for early entry into force it is likely to take at least five years before entry into force. 

What AU Commission currently does to encourage signature and ratification.

This unfortunate state of affairs should be looked at in the light of the fact that the AU Commission submits at each ordinary session of the Executive Council a status report on OAU/AU treaties, which highlights what the treaty objectives are and which states have signed and or ratified. In addition, AUC organizes a signature week in December and formally informs member States every time there is a change in the status of ratification. The AU Website (www.au.int) is updated on a daily basis to reflect signatures and the deposit of an instrument of ratification.  The AU elected officials and senior officers are also required to engage senior government officials on the need to sign and ratify AU legal instruments whenever they visit an AU Member state.

Concerned and frustrated by the slow pace of entry into force of AU treaties, the Executive Council adopted in 2009, a decision that was endorsed by the Assembly, requiring member states to initiate the process of ratification of legal instruments adopted under the aegis of the AU within one year of adoption. Almost all AU member States do not appear to have implemented this decision.

 

The Republic of Mali provides a good practice for ratification of Treaties: they have in place a Presidential Decree which stipulates ratification procedures: 6 months for AU treaties, and 12 months for international treaties. In addition, a Cabinet Sub-Committee meets every 3 months for a status review.

 

In 2014, the AU Policy Organs adopted a decision with a mandate to explore ways and means of expediting entry into force of AU treaties.The Rules of Procedure for Committee the were adopted in Malabo, June 2014; they envisage National Steering Committees on Ratification.

 

 

Protocol on the Statute of the African Court of Justice and Human Rights

 

The Malabo Protocol constitutes an amendment to the 2008 (Sharm el Sheikh) Protocol on the Statute of the African Court of Justice and Human Rights, which has been signed by 30 states but ratified by only 5 states. The Protocol was adopted by the Eleventh Ordinary Session of the Assembly of the African Union in Sharm El-Sheikh, Egypt, on 1 July 2008.The African Court of Human and Peoples’ Rights established by the Protocol to the African Charter on Human and Peoples’ Rights relating to the Establishment of an African Court on Human and Peoples’ Rights (1998) and the Court of Justice of the African Union established by the Constitutive Act of the African Union, were merged into a single Court and established as "The African Court of Justice and Human Rights" by the Protocol on the Statute of the African Court of Justice and Human Rights(2008).The Court of Justice is charged with hearing, among other things, all cases relating to the interpretation or application of the Constitutive Act of the African Union or of all other Treaties adopted within the framework of the Union, while the African Human Rights Court is charged with the protection of human and peoples’ rights and other relevant instruments relating to human rights.

 

The merger was made pursuant to Assembly decisions, Assembly/AU/Dec.45 (III) and Assembly/AU/Dec.83 (V), adopted respectively at its Third Ordinary Session  (6-8 July 2004, Addis Ababa, Ethiopia) and Fifth Ordinary Session (4-5 July 2005, Sirte, Libya), respectively, to merge the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union into a single Court.The decision to merge the Courts was motivated by the need to ensureadequate resources are available to fund a single effective continental Court and to avoid duplication.

 

Structure of the Court exercising international criminal jurisdiction.

TheMalabo Protocol building on the Protocol of the Court of Justice and Human Rights (which creates two chambers- General Affairs Section, Human and Peoples’ Rights Section) envisages that there will be a third chamber, namely, the international crimes jurisdiction, which may in turn create one or more chambers.

The Court shall be composed of four organs, namely, the Presidency; the Office of the Prosecutor; the Registry and the Defence Office.

The New Court within the African Governance Architecture

 

There are three (3) intertwined and equally important processes that should be looked at as forming one whole, which would then be greater than the sum total of its parts:

  1. The operationalization of the African Governance Architecture (AGA) provides the context and coordinated framework for the actions of the AU on constitutionalism, democracy, good governance, rule of law, human and peoples’ rights and the fight against impunity. Beyond context and coordination it also provides the ecosystem, in which to enhance cooperation and synergy among the various AU and REC organs and institutions to work together (complementarity and co-operation) in order to move beyond norm-setting and institution-building to effective implementation, and foregrounding of citizens and CSOs in fostering accountability; 
  2. The formulation of a broader African transitional justice policy framework, which summarizes all the measures open to the AU, RECs and Member States, in order to ensure that the twin objectives of justice and peace are pursued holistically in addressing the root causes and triggers of conflicts in a more comprehensive and sustainable manner;
  3. The enlargement of jurisdiction of the African Court is therefore an important (but not the only) mechanism to secure individual and corporate accountability (the international crimes jurisdiction), in addition to state responsibility (the human and peoples’ rights jurisdiction) and also a mechanism for resolving inter-State conflicts and interpreting and developing African international law (the ‘General Affairs jurisdiction.’) For example, the General Affairs jurisdiction, henceforth, enable the African Court to handle African border disputes, e.g. Kenya-Somalia, Tanzania-Malawi, etc.

 

Accordingly the three on-going processes are mutually reinforcing and desirable within the African Governance Architecture (AGA) and African Peace and Security Architecture (APSA) ecosystem.

 

Key elements of the new Protocol

 

The entire value proposition of the new Court is predicated on principles of pragmatism, gradualism and flexibility. Many features of the Court are revolutionary, and unprecedented in international law. The International Crimes Protocol is the first ever-international legal instrument to: -

 

  1. Vest international criminal jurisdiction in a regional court
  2. Explicitly includes the crime of rape within the statutory definition of the crime of genocide.[1]
  3. Establish an independent and separate Defence Office (the Public Defender) as a fourth, separate, independent Organ of a permanent international judicial tribunal (and not a mere Department within the Registry of the Court)[2]
  4. Expand the list of crimes within the jurisdiction of an international court beyond the four crimes that are, for instance, under the jurisdiction of the ICC (International Criminal Court), i.e. genocide, war crimes, crimes against humanity and (potentially) the crime of aggression. The Protocol provides for ten (10) additional crimes that are of serious concern to Africa (if not to others in the world), i.e. Unconstitutional change of government; Piracy; Terrorism; Mercenarism; Corruption; Money laundering; Trafficking in persons; Trafficking in drugs; Trafficking in hazardous wastes, and Illicit exploitation of natural resources.
  5. Refine the definitions of war crimes to include genocidal rape and to include other elements from international humanitarian law[3].
  6. Provide for corporate criminal liability (in addition to individual criminal responsibility) for serious crimes. The real tectonic shift  lies in the fact that African countries have indeed accepted the existence of individual criminal responsibility and corporate criminal liability for crimes of mass atrocity and other crimes such as illicit exploitation of natural resources, drug trafficking, etc.

 

  1. Situate an international criminal tribunal within a larger “ecosystem” of other intergovernmental organs and institutions, i.e. the African Governance Architecture (AGA). As such, co-operation and complementarity are not the sole obligation of the Court, but would be shared with these other organs and institutions.

 

As is usual with criminal legislation, the Protocol provides for the principle of non-retrospectivity.

 

The controversial issue of (limited) immunities at the Court

 

Article 46A of the new Protocol has raised the most controversy in the entire instrument and is in fact at the heart of this opinion. It stipulates as follows: “No charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

 

The article was inserted in response to a directive by the AU Assembly, the highest decision-making authority of the AU. The AU justifies it as being consistent with its policy on sequencing peace and justice. The concern by the AU is that removal of the Head or a senior official in government, without fully providing for how the country will be managed in the transition, is a recipe for total collapse of law and order, as was witnessed in Somalia, or, more recently, in Libya. According to the AU, peace and stability in a country, is at the heart of eventual pursuit for justice. It is therefore critical that the central authority enjoys some (even if only partial) legitimacy and credibility. Indeed, it has been argued that the average American soldier enjoys more protection from prosecution abroad than the average African Head of State, since Americans are largely protected by the Bilateral Immunity Agreements they signed around the World.

 

Some AU Officials cite the cases of Hissene Habre, Charles Taylor and Laurent Gbagbo, as examples where the Head of State was removed from office first, and then prosecutions commenced, sometimes with a lull in between, to prevent a relapse to total insecurity. Granted this issue requires a much more detailed examination and will in fact invite and should be the subject of much more rigorous academic discourse and writings.

 

Some critics argue, not without some merit that such a provision only encourages incumbents to stay in office for eternity, as they know that prosecution awaits them when they step down. But it is also worth considering that the African Charter on Democracy, Elections and Governance (ACDEG), its robust provisions, which – among other things – also establishes the African Governance Architecture (AGA) exists precisely to ensure that leaders are only in office constitutionally; after free, fair and regular elections; that they govern well; and that they leave office constitutionally. Further that those who attain or retain power through unconstitutional means are punished for it.[4] Over the last decade, the AU and its Regional Economic Communities (RECs) have become increasingly bold and consistent in applying sanctions for unconstitutional changes of government.[5]

 

In the final analysis, the Court will have to determine who – and who is not – a ‘Senior State Official’ for purposes of the International Crimes Protocol, shall be made by the Court, on a case-by-case basis.The Protocol therefore leaves room for the Court to interprete who is entitled – or not – the immunities and thus leaves room for progressive development, through the Court’s jurisprudence, of this principle.

 

It is worth noting that the African governments’ and the AU position on sequencing peace and justice is not static. In the case of South Sudan, the Peace and Security Council of the African Union (AU-PSC) ordered a Commission of Inquiry into Human Rights Violations committed by both sides, including the sitting Government, even while it was supporting and superintending a mediation process in South Sudan, led by the Intergovernmental Authority on Development (IGAD). This implies that the AU’s position on sequencing could evolve, just like many other aspects of the AU approach on governance, democracy, human and peoples’ rights, and combatting impunity have evolved over time. Should that happen, one could take comfort in the fact that the Assembly of Heads of State and Government could amend the ‘International Crimes Protocol’ to reflect anyagreed new position.[6]

 

The Politics of International criminal justice and double standards

 

While Western powers opposed the AU’s request for deferral under Article 16 of the Rome Statute of the application for indictment against President Bashir of The Sudan, it is known that less than less than two weeks after the Rome Statute entered into force on 1 July 2002, and before the ICC had been put in place at the Hague, Article 16 of the Statute was invoked at the behest of the USA. By resolution 1422 adopted at its 4572nd Session on 12 July 2002, the UN Security Council acceded to American threats to veto the renewal of UN mandates in Bosnia & Herzegovina as well as all other peace keeping missions, unless American soldiers were exempted from prosecution under the ICC.  The resolution was renewed again on 12 June 2003 at the 4772nd session of the UN Security Council.

 

Why ratification is Necessary

It is important to ratify this instrument so as to establish a single competent African Court, replacing the African Court of Justice and the African Human Rights Court. This will alleviate the financial as well as human resource constraints that would otherwise face the two courts if operationalized separately. The establishment of the African Court of Justice and Human Rights will assist in the achievement of the goals pursued by the African Union and the attainment of the objectives of the African Charter on Human and Peoples’ Rights, which requires the establishment of a judicial organ to supplement and strengthen the mission of the African Commission on Human and Peoples’ Rights as well as the African Committee of Experts on the Rights and Welfare of the Child.

Furthermore, the Court will supplement the mandate and efforts of other continental treaty bodies as well as national institutions in protecting human and peoples’ rights.

 

Implications of the Malabo Protocol for a State Party:

 

In the case of Kenya, it will not be necessary to amend its Constitution or national criminal laws, as they are pretty progressive already.

 

Benefits of signing and ratifying the Protocol

 

Signing and ratifying the Malabo Protocol would send a strong signal of commitment to fight impunity on the continent in line with the AU’s The first sate to ratify would have the prestige of being the first State to sign; strengthening national laws to combat mass atrocities and other major international crimes; benefitting from capacity-building to national judicial systems that may arise from being a State Party, i.e. that the African Court’s Outreach Programme will prioritise States that have signed. Such a state would also be entitled to nominate Judges, Prosecutor, Registrar, Public Defender and their Officers. It should be pointed that signing or ratifying the Protocol does not affect a state’s Rome Statute obligations.  

 

Options and Entry Points for the Republic of Kenya in pushing for speedy ratification of the Malabo Protocol

 

  1. Lead from the front by calling for signature by all states within the next one-year in accordance with Executive Council decision EX.CL\Dec.459 (XIV) adopted in January 2009, by which States undertook to commence the process of ratification of AU instruments within one year of adoption. This may also necessitate Kenya leading by example by signing and commencing the process of obtaining parliamentary approval to ratify as required under the new Constitution. Signing the Protocol is in keeping with the other "progressive" reforms to international justice sphere that Kenya has been seeking at the ICC-ASP.  

 

  1. Promoting signature – and later ratification – for the East African Community (EAC) group of States, and perhaps simultaneously or later for the IGAD Group as well.

 

  1. Ensure that the decision that will be adopted at the Summit contains language calling for urgent formulation by the AU Commission of a Model Ratification Instrument and a robust and innovative advocacy campaign for the Protocol as well as formulation of a Model Domestication Law for the Protocol.

 

  1. There will be two agenda items under which the Republic of Kenya could intervene.

 

                                            i.            Report of the Commission on the Activities of the Commission  - which gives an overview of the activities of the Commission and calls for speedy ratification of AU treaties. I recommend this option, as although the ICC issue brings urgency to the need to cat swiftly in signing and ratifying, the connection between the two issues is not highlighted.

 

                                         ii.            This morning (20th January 2015), the Permanent Representatives Committee called for a separate report and item on the International Criminal Court on the agenda of the executive Council. In effect, Council will discuss and adopt recommendations for consideration by the Summit;

 

                                       iii.            The Annual Report of the African Court. However, this will not be the most appropriate as the new Protocol was not adopted by the Court.

 

 

 

 

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[1]Art. 28B(f) of the Statute: Genocidal rape was NOT defined in the Statute of the International Criminal Tribunal for Rwanda (ICTR). The Judges of that Tribunal creatively interpreted provisions of the Statute to establish this crime in their jurisprudence. Some Scholars have argued that it is precisely because the ICTR Statute did not have an Elements of Crimes document that the Judges were able to do this.

[2]Hybrid Tribunals, such as the Special Court for Sierra Leone (SCSL) have a Defense Office. But this is the first tribunal that is both international as well as permanent to incorporate this provision.

[3]In the process of drafting the various elements of the crime of genocide, war crimes and crimes against humanity, recourse was had to what exists in the Rome Statute and the Statutes of the various Ad hoc International Tribunals (ICTR, ICTTY, Grand Chambers of Cambodia, Lebanon Tribunal, etc.) well as other relevant international instruments. In the course of the research, it became evident that the definition of war crimes in the Rome Statute does not take into account certain aspects of the GravebreachesofAdditionalProtocolIandotherseriousviolations ofthelawsand customsofwarapplicableininternationalarmed conflicts; and other seriousviolationsofthelawsandcustomsof war applicablein non-international armedconflicts.

 

In this regard, AUC worked with the ICRC to improve the definitions of war crimes, crimes against humanity and genocide. Thus, the final version of the definitions has taken account of not only the Statute and relevant jurisprudence ofthe ICC, ICTR, ICTY and the Special Court of Sierra Leone but also therulesofcustomaryinternationalhumanitarian law as well as the amendments adopted at the ICC Kampala Review Conference of 2010. Accordingly, the Malabo Protocol is very much up to date.

 

[4] See, for instance, Art. 25 of the African Charter on Democracy, Elections and Governance (ACDEG), which provides sanctions for perpetrators of Unconstitutional Change of Government (UCG). These include suspension from participating in the activities of AU; punitive economic measured; strenuous efforts by the AU to restore democracy; provision for prosecution of perpetrators in other States – under the principle of Universal Jurisdiction – or at the African Court; etc.

[5]Ref, for instance, Cote d’Ivoire, Egypt, Guinea, Madagascar, Mali, Niger

[6] Art. 12(3) of the Protocol provides that: “The amendments shall come into force for each State Party which has accepted it thirty (30) days after the Chairperson of the Commission has received notice of the acceptance.”

 


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