Angola Leads the Way in Ratifying the Malabo Protocol: African Criminal Court

Angola has officially become the first African Union (AU) member state to ratify the statute of the African Court of Justice and Human Rights, known as the Malabo Protocol. Fourteen other AU countries still need to ratify the statute before it can enter into force.

The Malabo Protocol aims to extend the court’s mandate by adding criminal jurisdiction over certain international crimes. The proposed court would also address interstate complaints and human rights cases. Once established, and with widespread ratification by AU member states, the court could play a crucial role in combating impunity for serious international crimes across the continent, working alongside national courts, special international courts, and the International Criminal Court (ICC). The existing African Court on Human and Peoples’ Rights was created in 2004.

The Malabo Protocol grants jurisdiction over several crimes significant to contemporary challenges and colonial legacies on the continent, including corporate criminal liability.

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However, the Malabo Protocol also presents several issues that must be resolved to ensure the court genuinely advances justice in Africa. Notably, the statute provides immunity from prosecution for serving African heads of state or government and other senior state officials, a significant departure from the practices of other international tribunals, including the Special Court for Sierra Leone and the ICC. This provision dangerously undermines the equal application of the rule of law.

Additionally, under the Malabo Protocol, the court’s 15 judges will oversee three sections—general affairs, human rights, and international criminal law—with jurisdiction over 14 core crimes, compared to four for the 18-judge ICC. This raises questions about whether this number of judges will be sufficient to cover the wide subject-matter mandate.

In particular, the mandate and resources of the existing African Court on Human and Peoples’ Rights need to be fully guaranteed and protected, ensuring they are not diverted to the significantly greater resources that a criminal court will require.

Currently, the 33 AU member states that have ratified the treaty establishing the ICC would have obligations under both the ICC and the African Court. Angola should take the lead in clarifying the competing and complementary obligations of member states to these two courts, as well as to their national courts, before the Malabo Protocol takes effect.

Moving Forward: Ensuring Justice and Accountability

As Africa takes this historic step, it is essential to address the challenges and ensure the effective implementation of the Malabo Protocol. The successful establishment of the African Court of Justice and Human Rights could significantly enhance the continent’s ability to address and adjudicate serious international crimes, promoting justice and accountability. However, achieving this goal requires addressing the issues of immunity for high-ranking officials and ensuring adequate resources and judicial capacity.

By leading the way, Angola sets a precedent for other AU member states to follow, fostering a stronger, united front against impunity and advancing the rule of law across Africa. This pivotal moment calls for concerted efforts to harmonise the roles and responsibilities of the African Court, the ICC, and national courts, ensuring a coherent and effective justice system that serves the continent’s diverse needs.