2014 | Malabo Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol)
This Protocol and its annexed Statute were adopted in 2014 and ensue from multiple instruments adopted at different stages. In particular they should be read in conjunction with the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (1998), the Protocol of the Court of Justice of the African Union (2003) and the Protocol on the Statute of the African Court of Justice and Human Rights (2008) replacing the latter.
The Malabo Protocol changes the name of the “African Court of Justice and Human Rights” into “African Court of Justice and Human and People’s Rights”.
International criminal jurisdiction
Most noticeable is the extended jurisdiction of this Court encompassing - in addition to General Affairs and Human Rights, crimes under international law and transnational crimes (Article 3 of the Protocol, Article 16 of the Statute). While extensively borrowing from the statutes of other international courts and tribunals, Article 28A of the Statute endows the Court with the competence to hear all cases related to the following 14 crimes:
- Crimes against Humanity
- War crimes
- The Crime of Unconstitutional Change of Government
- Money Laundering
- Trafficking in Persons
- Trafficking in Drugs
- Trafficking in Hazardous Wastes
- Illicit Exploitation of Natural Resources
- Crime of Aggression.
Clearly, this list contains crimes over which the International Criminal Court (ICC) and other international courts and tribunals have no jurisdiction. Moreover, through its Article 28A(2), the Statute provides for new crimes to be added. Significantly, part IVA of the Statute, containing provisions specifically applicable to the international criminal jurisdiction of the Court, grants immunity to heads of African Union (AU) States or Governments, to anybody acting or entitled to act in such capacity, and to other senior state officials based on their functions, during their tenure of office (Article 46A Bis of the Statute). De facto, the Protocol grants immunity to a large category of persons who have no immunity under the ICC Statute.
Jurisdiction & remedy
Chapter III of the Statute states that the Court may hear all cases and all legal disputes (submitted to it in accordance with the present Statute) that relate to the nature or extent of the reparation to be made for the breach of an international obligation (Article 28(i)). Without prejudice to this provision or to the rights of victims under domestic or international law, Article 45(1) of the Statute determines that “the Court shall establish in the Rules of Court, principles relating to reparations to or in respect of victims, including restitution, compensation and rehabilitation”. On this basis, the Court may determine - whether upon request or (exceptionally) on its own motion - the scope and extent of any damage, loss or injury to or in respect of victims. Moreover, paragraph 2 provides that in international criminal procedures, the Court may decide that a convicted person must repair the harm he/she has caused to or in respect of, victims, including restitution, compensation and rehabilitation. The Statute further provides for a Trust Fund for legal aid and assistance and for the benefit of victims of crimes or human rights violations and their families (Article 46M).
Individuals seeking justice for a violation of their human rights, however, have limited access to the Court, given that their claim must concern a violation of a right under a specific human rights treaty, i.e. the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relevant to human rights ratified by the States Parties concerned). Beyond this, Article 30 (f) of the present Protocol determines that only African individuals are eligible to submit cases to the Court, provided that a State Party has made a declaration accepting the competence of the Court to receive such cases, which arguably constitutes a narrower scope than the persons with access to the Court under the 2008 Protocol on the Statute of the African Court of Justice and Human Rights, that refers to “individuals”.
The Malabo Protocol will come into force after ratification by 15 member states. Since by mid June 2017 only 9 (nine) signatures and 0 (zero) ratifications were counted for, this Protocol has not (yet) entered into force.