Malabo Protocol shouldn’t be used to compromise justice

African leaders shoulder guardianship over human rights. [iStockphoto]

The signing of the protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament by President William Ruto on July 24, 2023, is a significant stride in Africa’s pursuit of justice and human rights.

Adopted by the African Union in June 2014, this protocol opens the door to ratifying the African Court of Justice and Human Rights (ACJHR) and is commonly known as the Malabo Protocol. This grants ACJHR the jurisdiction to address crimes under international law and transnational offenses.

While this advancement holds promise for Africa’s criminal justice system and the global fight against impunity, it also ushers in a complex weave of implications that African leaders must thoughtfully address.

According to Article 11 of the Protocol, it comes into force 30 days after 15 members deposit instruments of ratification with the court. Other African states that have signed the protocol include Benin, Cameroon, Chad, Equatorial Guinea, Gambia, Ghana, Madagascar, Mali, Niger, Sahrawi Arab Democratic Republic, Sierra Leone, Somalia, Togo, Morocco, and Central African Republic.

Its origins trace back to 2013 when President Uhuru Kenyatta and his deputy Ruto faced indictments in crimes against humanity following the 2007/2008 post-election violence and stood trial at the International Criminal Court (ICC) in The Hague, Netherlands.

This protocol, stemming from concerns raised by several African states regarding the bias of the ICC, demonstrates Africa’s determination to preserve its sovereignty while shaping its course in addressing international crimes. The aspirations of justice and sovereignty are intertwined, and it falls on the shoulders of African leaders to uphold both. Amid efforts to empower African institutions, it’s essential to remember that authentic sovereignty flourishes when justice isn’t compromised.

The protocol introduces a distinctive take on immunity, particularly for Heads of State and senior state officials from prosecution for international crimes while in office. These provisions offer immunity from ICC processes unless referred by the African Union.

These provisions have ignited diverse opinions, both supportive and critical. Internationally recognised immunities are vital for enabling effective leadership, but careful navigation is necessary to avoid immunity becoming a veil for impunity. While the protocol’s intent is shielding leaders from politicised processes, it’s crucial they don’t inadvertently obstruct justice and accountability.

By upholding justice and accountability, African leaders shoulder the guardianship over human rights. This commitment transcends legal obligations, echoing their shared duty to prevent the recurrence of heinous crimes causing anguish for citizens.

The ACJHR’s expanded jurisdiction underscores our collective resolve to combat crimes eroding humanity’s essence. African leaders bear the significant task of proving the past doesn’t dictate the future. The protocol signifies their pledge to end the impunity era. This commitment extends beyond the international community, resonating more deeply with the citizens they honourably serve. The protocol respects sovereignty while holding leaders accountable for justice.

However, the intricate balance between sovereignty and justice necessitates cautious navigation. Leaders must ensure that their actions shield victims’ rights to redress and reparations.

The coexistence of immunity and jurisdiction provisions with justice principles is essential. Leaders owe this to their citizens and to the legacy they leave behind. As Africa navigates uncharted terrain, it stands at pivotal juncture. The protocol’s provisions beckon a redefinition of accountability, sovereignty, and justice.

Ms Momanyi is a governance, risk and compliance specialist. [email protected]


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