Angola becomes first AU state to ratify Malabo Protocol

Angola has officially become the first 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 enters into force, Human Rights Watch (HRW) has noted. The proposed court would also deal with interstate complaints and human rights cases. Once established – and if there is widespread ratification by AU member states – the court could play a crucial role in fighting impunity for serious international crimes across the continent, 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 provides jurisdiction over a number of crimes particularly significant for contemporary challenges and colonial legacies on the continent, including the inclusion of corporate criminal liability.

However, it also raises a number of issues that will need to be resolved for the court to genuinely advance justice in Africa. Most notably, the statute provides for immunity from prosecution of serving African heads of state or government and other senior state officials, a significant retreat from the law and practice of other international tribunals, including the Special Court for Sierra Leone and the ICC. The provision dangerously undermines 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 now international criminal law – with jurisdiction over 14 core crimes, compared to four for the 18-judge ICC. As it stands, the 33 AU member states that ratified the treaty establishing the ICC would have obligations under both the ICC and the African Court. HRW says Angola should take the lead in ensuring that competing and complementary obligations of member states of these two courts, as well as their national courts, are clarified before the Malabo Protocol takes effect.