A conversation worth having...

The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the “Malabo Protocol”) has been the subject of vociferous criticism that has been mainly focused on the immunities provision.  This provision provides that sitting heads of state and other senior state officials may not be prosecuted before the African Court.  Another controversy is related to the access provision which limits the types of individuals and NGOs that may bring human rights cases before the African Court.  Concerns also have been raised about the definitions of some of the crimes, the relationship of the expanded African Court with the International Criminal Court (ICC), and the staffing and financing of the Court, among others.  To a large extent, many of the concerns are important and the criticisms understandable.  However, the criticisms and concerns have emerged from incomplete information about the current state of international law and emerging Transitional Justice commitments in Africa.  Some have focused on the overly narrow focus on a single provision, without a deeper analysis of how that provision might interact with other provisions in order to form a cohesive and progressive assemblage of international law in Africa. Others have insisted that the Malabo Protocol departs from efforts to end impunity.  They insist the advent of a regional criminal court in Africa was solely to be understood as foil to the ICC to serve as a shield for high-ranking perpetrators.

The reality is that the lack of information regarding the Malabo Protocol for the African Court and how the expanded African Court will function has raised understandable concerns that deserve attention.  This forum attempts to provide the comprehensive and holistic analysis that has thus far been missing in the debate over the Malabo Protocol, addressing both the aforementioned concerns and others.

Immunity vs Impunity

Is an African Court with jurisdiction over international crimes a threat to the International Criminal Court?

African Court vs ICC

Does the Immunity clause in the Malabo Protocol for the African Court mean impunity for those who commit serious crimes in Africa? How do we know that the African Court will not just be a sham for leaders wanting to evade justice?

African Court & Civil Society

Does the African Court reduce civil society participation in the pursuit of justice?

Peace & Justice Sequencing

Is the African Union’s peace and justice sequencing consistent with international law?

Unconstitutional change of Government vs Immunity

How might the crime of Unconstitutional Change of Government (UCG) be used against the abuse of the Immunity Provision, 46A Bis?

Funding

Can Africa afford an African Court with three Jurisdictions?  Does it have the funding that it will need in order to be functional? How will it be financed?

Malabo Protocol/Merger Protocol

Is the African Union’s peace and justice sequencing consistent with international law?

Criminalization of Popular Protests

How might the crime of Unconstitutional Change of Government (UCG) be used against the abuse of the Immunity Provision, 46A Bis?

Triggers of the African Court

What are the triggers for the jurisdiction of the African Court? Is it possible that they might conflict with those of the ICC?