Africa represents the largest block of parties to the International Criminal Court (ICC) Statute. African countries enthusiastically took part in the process that led to the adoption of the statute. That enthusiasm soon melted away. The relationship between the court and Africa is at an all time low.
This can be traced to a whole series of events. Firstly, the indictment of the Sudanese President Omar Al Bashir in 2009 and secondly, the commencement of cases against the President of Kenya, Uhuru Kenyatta and his deputy, William Ruto only complicated matters.
Thirdly, the loud African protests against what it deems the bias and colonial elements of the ICC have never truly been addressed, thereby leading to a sense of justification for Africa’s rather radical stance against the ICC. To this date, the African Union has churned out several statements and declarations highlighting its displeasure with the court.
Perhaps the most dramatic shake of the fist in ICC’s face is the adoption of what has come to be called the Malabo Protocol which grants criminal jurisdiction to the merged and expanded African Court of Justice and Human Rights.
The Protocol has received a fair share of flak both at home and abroad. The choicest words have been reserved for Article 46A which states: 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.”
Article 46A has been described as shambolic, shameful and symbolic, its adoption without good faith, vindictive, and in contradiction with the culture of accountability. In other words…here are African leaders again…shielding themselves. Malabo is therefore flawed. In any case most of the men and women, who gathered in Malabo for its adoption in 2014, and indeed the big men leading the anti ICC rhetoric, do not necessarily bleed democracy, rule of law and justice.
Progressive steps have been taken in Africa since the turn of the century firstly with the adoption of the Constitutive Act of the African Union. This was followed by the establishment of the African Court on Human and People’s Rights.
The setting up of the Extraordinary Chamber to try Hussein Habre, a former head of State of Chad. Although without its short falls, is equally unprecedented. In addition, the International Criminal Tribunal for Rwanda and the Special Court for Sierra-Leone have provided rich case law on international crimes. The recent adoption of Agenda 2063 with Aspiration Number 3 dedicated to human rights, rule of law and good governance is also positive.
These may be signs of Africa’s willingness to develop a solid human rights and criminal justice system. The desire to create an African Court with jurisdiction over international crimes which would otherwise be handled by the ICC is not a bad idea per se.
A solid judicial system capable of handling international crimes within Africa is actually more advantageous. After all, the ICC is the court of last resort. But how would such a court work with the ICC considering that the ICC was created to complement national and not continental courts. To make matters worse, Malabo is completely, and maybe conveniently, silent on the ICC.
The question remains, therefore, whether calamity Malabo can be saved to represent Africa’s evolving continental criminal justice system. Despite the speedy adoption of Malabo, there is very little enthusiasm to get this court up and running. So far few countries have signed the protocol and no country has ratified the protocol. There is a sense that despite all the rhetoric against the ICC, there is some reluctance about the African Court too.
Malabo seems to be a hastily assembled protocol such that questions have been raised about the practicability of the court. The protocol grants to the court jurisdiction over a whopping fourteen international crimes. Too much? The much talked about immunity provision in Article 46A would perhaps be the protocol’s undoing.
Can Malabo be saved? May be…just may be.
The author is chief State advocate and head of human rights unit in the Ministry of Justice. He writes in his personal capacity. Email: firstname.lastname@example.org