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  • The African Court of Justice and Human and Peoples' Rights in Context
  • Development and Challenges
  • Online publication date: May 2019
  • pp 1055-1124
  • Publisher: Cambridge University Press

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Part V Funding the African Court and the Role of Civil Society

37 Financing and Sustaining the African Court of Justice and Human and Peoples’ Rights

Vincent O. Nmehielle
1. Introduction

The resolve of the African Union (AU) to merge the currently existing African Court on Human and Peoples’ Rights (ACtHPR or Human Rights Court)1 with the African Court of Justice (ACJ)2 to form the African Court of Justice and Human Rights (ACJHR) through the adoption of the Protocol on the Statute of the African Court of Justice and Human Rights3 (hereafter, Merger Protocol), no doubt began the redefinition and streamlining of the African Union organs, bodies or mechanisms. This streamlining or rationalization of institutions, or what this author would call the Merger Project, was predicated on the increasingly diminishing resources available to the continental body as this author has alluded to elsewhere.4 The further decision that the AU Assembly took in 2014 in Malabo, Equatorial Guinea5 to extend the jurisdiction of the ACtHPR to include international crimes (the so-called Malabo Protocol) is the latest dimension of the AU judicial institutions rationalization process. This decision thus creates one single court to be known as the African Court of Justice and Human and Peoples’ Rights (ACJHPR).6 The extension of criminal jurisdiction to the Court has generated and continues to generate ample debates from a number of commentators – debates that range from the propriety and legality of such decision in the era of the International Criminal Court (ICC), the resource questions, to the political ramifications of the decision.7

It is not the intention in this chapter to delve into the debate on the propriety, legality or otherwise of the AU decision to merge the ACJ with the ACtHPR, or its extension of the jurisdiction of the Human Rights Court to include international crimes. That debate is now stale and would therefore, serve no more meaningful purposes. This author had amply dealt with the issue in the years past.8 Rather, this chapter, as the title suggests, focuses on the resources question relative to the significance of the African Union judicial mechanism as the composite judicial body of the Union. In other words, we must emphasize the reality that the ACJHPR when fully constituted, will be the main judicial organ of the African Union. The importance of this phenomenon cannot be overstated; it is indeed a big deal. While the composite court is not yet in force, it is important to engage at the strategic level on financing and sustaining the Court taking into account its significance and enormous role as a single Court. There may be the temptation to focus only on the resources needed to effectively sustain the criminal arm of the Court. That would not do justice to the significance and importance of the Court, as the holistic financing of the court must be the focus. It is also in the interest of continental norm creation and dispute resolution that a holistic emphasis is placed on the development of a robust continental judicial process that is adequately resourced. Thus, the chapter will be forward–looking; perhaps to provide the AU policy makers some food for thought in their planning in the continental body’s new scheme to ensure autonomous financing of the African Union and its institutions. The chapter will not go into the dollar and cents requirements of the ACJHPR, or the numerical staffing needs of the Court, as that would be practically impossible to do in this limited piece. That would require a holistic resource-focused study. The chapter will, however, provide a thematic discussion and evaluation of the resource needs of the Court taking into account its structure and applicable international practice and standards.

The chapter is divided into seven (7) sections. Following the above introductory section, section two deals with the notion of the ACJHPR as a single Court. The section flags the holistic nature of the court particularly because there may be a tendency to have a segregated view of the African Union’s judicial mechanism in the form of a separate Court of Justice, a Human Rights Court and more emphatically, an international criminal tribunal. Section three examines the adoption of the Malabo Protocol and tries to make sense of its adoption without a prior determination of the cost implication of the endeavour. Section four takes a thematic overview of the ACJHPR from a resource perspective. It examines the organic structure of the Court and juxtaposes that structure against the kind of resources that should be envisaged. In this regard, it highlights the Presidency of the Court, the Registry, Office of the Prosecutor and the Defence Office in terms of the enormity of the judicial project and its resource implications. Section five briefly discusses applicable examples of other judicial mechanisms in terms of the financial implication of organizing them. Such examples include the International Court of Justice (ICJ), the United Nations-backed Special Court for Sierra Leone (SCSL), the United Nations International Criminal Tribunal for Rwanda (ICTR), and the current African Court on Human and Peoples’ Rights (ACtHPR). Section 6 delves into what could be done to sustainably finance the ACJHR leveraging on the current reform of the African Union funding mechanism – the 0.2 per cent import levy on eligible imports into the continent. Section 7 concludes the chapter, emphasizing the significance of the current AU financing mechanism reform – the 0.2 per cent levy on eligible imports into the continent, as a great opportunity for effectively financing and sustaining the ACJHPR. The section calls on the AU to make provisions for the funding of the Court through a regular budget from member states’ assessed contributions, an endowment or trust fund from surpluses, and provision for voluntary contributions from willing member states and partners to cater for ad hoc needs and short-term resource requirements.

2. The ACJHPR as a Single and Composite Court

It must not be lost on any observer, commentator, or policy maker that the ACJHPR is a single Court and the main judicial organ of the African Union. As a result, any evaluation of its resource needs must begin from that perspective. The court as a single and composite court will have four Organs – a Presidency, an Office of the Prosecutor, a Registry and a Defence Office.9 The Court will be made up of three Sections – ‘a General Affairs Section, a Human and Peoples’ Rights Section and an International Criminal Law Section’.10 Specifically, the International Criminal Section is endowed with ‘a Pre-Trial Chamber, a Trial Chamber and an Appellate Chamber’.11 Similarly, all the Sections are allowed to ‘constitute one or more Chambers in accordance with the Rules of [the] Court.’12 The General Section of the Court has jurisdiction over disputes other than human rights questions and international crimes, which are accordingly within the purview of the Human Rights and International Criminal Law Sections, respectively. The reality of the above configuration of the Court is that, in effect, you have three courts fused into one. The strategic leadership of the Court revolves around the four organs enumerated above. The President of the Court would be assisted by a Vice President13; the Prosecutor will have two Deputies.14 The Registry of the Court would be overseen by one Registrar who in turn would be assisted by three Assistant Registrars.15 The Defence Office would be presided over by the Principal Defender16 with requisite staff complement to ensure the rights of accused persons or others that may require legal assistance.

The above structure of the Court shows the enormity of the African Union’s ambitious judicial project. It is in the interest of the African Union that this judicial project is realized if it should be taken seriously in fully implementing the noble aspirations contained in the AU Constitutive Act. The fact that the African Court of Justice was not operationalized despite the entry into force of the Protocol on the ACJ17 adopted pursuant to Article 18 of the Constitutive Act – due to the Merger Project, calls for a meaningful engagement and credible efforts to bring the Malabo Protocol into force.

3. Adopting the Malabo Protocol without Cost Implications

Some may, for argument sake, contend that it was imprudent on the part of the African Union to adopt the Malabo Protocol without first ascertaining the cost implications of implementing the objectives and provisions of the Protocol, which was mainly to extend the jurisdiction of the merged African Court of Justice and Human Rights to include international crimes. The same argument could be made regarding any other treaty negotiated by the African Union or any other interstate institution such as the United Nations (UN) or other regional organizations. It is not usually very easy to fully appreciate the cost implications of adopting any international agreement before such an agreement is adopted. Where such a forwarding financial thinking exists, it will no doubt make life very easy for the eventual implementation of the objectives of an intended treaty. This author would, however, think that the paramount issue would be whether there is a strong collective will to undertake a particular objective through the adoption of a treaty or an international agreement. The crystallization of that objective through the actual adoption of the treaty should provide the impetus for working out the cost implication of its implementation within the timeline of preparation for its entry into force.

In the case of the Malabo Protocol, this is even more so applicable. It needs recalling that the implementation of the Protocol on the Court of Justice of the African Union despite its entry into force, was aborted by the Merger Project leading to the adoption of the Merger Protocol, which also is yet to enter into force18 and which also had its own structures. During preparations for the adoption of the Malabo Protocol that eventually brought everything together, there was an attempt to evaluate the final implication of its implementation. When the Protocol was presented during the AU Summit of January 2013, it was not decided upon by the AU Assembly. The Executive Council, which normally prepared for the meeting of the Assembly rather decided that a report on the financial and structural implications of adopting the Protocol, among other issues, should be prepared and reported on at the following midyear Summit.19 The eventual adoption of the Protocol in Malabo in July of 2014 was not faced with the same fate of first elucidating on the financial and structural implications before it was adopted. The urgency of adopting the Protocol in the face of the increasing strong concerns of the African Union Assembly about the activities of the International Criminal Court (ICC) in Africa would have primarily worked on the minds of the Assembly in this regard. This author who had become Legal Counsel of the African Union during the period in November 2013, was also of the opinion that it would not be very helpful to hurry a report on the structural and financial implications of the Protocol before its adoption. The reason was simple; it was necessary that the report on the financial implications should be well informed by a thorough study between the adoption of the Protocol and its entry into force based on the finally adopted Protocol. I was of the view that an initial assessment hurriedly put together by a Consultant was not thorough enough and could not have taken adequate account of the Protocol that eventually emerged having regard to the composite character of the Court and available best practices. It mainly focused on the financial implications of extending criminal jurisdiction to the existing ACtHPR.20 In terms of the structural implications of the Court, the court’s structure is now very clear based on its organic composition from which a clear assessment of personnel and resource needs could be made taking into account international courts of a similar nature.

While awaiting the ratification and entry into force of the Malabo Protocol, it is now vital for a comprehensive study on the financial implications of the ACJHPR to be undertaken where an evaluation of the resource needs of the various sections of the Court would be made. That study will now benefits from an adopted Protocol, whose structure is set. Thus, the General, Human Rights and International Crimes Sections as the fused components of the Court would be thoroughly examined to ensure effective resource allocation. This is even more important now that the African Union has launched its reform agenda with a strong focus on effectively and adequately financing the African Union. At its Twenty-Seventh Ordinary Summit in Kigali, Rwanda in 2016, the AU Assembly took a Decision to finance the African Union ‘in a predictable, sustainable, equitable and accountable manner with the full ownership by its Member States’.21 The Decision created a new mechanism for funding the African Union – instituting and implementing ‘0.2 percent Levy on all eligible imported goods into the Continent to finance the African Union Operational, Program and Peace Support Operations Budgets starting from the year 2017’.22 A committee of African Union Ministers of Finance made up of ten ministers, two from each AU region (referred to as the F10) is charged with working out the implementation of the 0.2 per cent levy to ensure adequate and sustainable funding of the African Union by being involved in the budgetary process.23 This reform of the AU is led by President Paul Kagame of Rwanda who recently became the Chairperson of the AU Assembly. President Kagame presented his report to the AU Assembly in January 2017.24

There is no doubt that the reform of the African Union, particularly the way it is funded has implications for the financing of the judicial arm of the African Union – the ACJHPR, and in a more sustainable manner. It becomes imperative for AU policy makers to look at Financing the Union in a very holistic way that pays deliberate attention to the Court in the same manner as it does to peace support operations within the renewed emphasis on the ‘Peace Fund’, which the Assembly financing Decision recognizes as having ‘three (3) thematic windows, namely Mediation and Preventive Diplomacy; Institutional Capacity; and Peace Support Operations’25 The Merger Project is a huge initiative and must be realized. It will involve enormous resources, which resources need to be available based on a deliberate, proper and systematic planning. The question then is how does the AU assess such resource requirements to sustainably finance the Court? In this regard, there is need for a systematic evaluation of what the composite Court involves. This will bring out a clear picture of the various compartments of the Court from where a sense of the resource requirements could be established.

4. Thematic Overview of the ACJHPR’s Structure from a Resource Implications Perspective

While I continue to emphasize that the ACJHPR is a single Court, it is indeed a composite court that literally combines three courts together – the initially planned Court of Justice of the African Union, the currently existing African Court on Human and Peoples’ Rights, and the Malabo Protocol’s creation – the International Criminal arm. An appreciation of this composite nature of the Court will be very helpful in evaluating the resource needs of the Court because of the diverse expertise needed for the Court to fully perform its role and to achieve its mandate. It will thus be useful to examine the organs of the Court and each of the Sections and juxtapose them against what may be required in its sustainable financing.

A. The Presidency

The Presidency is the organ that represents the judicial and political leadership of the Court and generally oversees the strategic operation of the Court. It oversees the judges of the Court. It is a collective of the judges of all the Sections of the Court – the General Affairs, Human Rights and International Criminal Law Sections. The Court when fully constituted will be made up of 16 Judges elected by the African Union Assembly from its five AU Regions who would serve for a single term of nine years.26 In the configuration of the Court and based on how the Judges are elected, the General Affairs and Human Sections will be composed of five (5) Judges each while the International Criminal Law Section will have six (6) Judges27. The Presidency will be led by the President of the Court who together with the Vice President will be elected by all the judges for a terms of two years renewable once.28 Of the 16 Judges of the Court, only the President and the Vice President would initially serve full-time.29 It is envisaged that all the Judges of the Court could serve on a full-time basis but at such a time that would be determined by the AU Assembly based on the Court’s recommendation.30

From a resource perspective, it means that, taking into account Article 23 of the Protocol on the Statute of the African Court of Justice and Human Rights on the remuneration of the Judges, provisions have to be made for the Presidency in a manner that firstly takes into account the salaries or allowances of the Judges for the initial period where they are largely expected to serve on a part-time basis except for the President and the Vice President who would always serve full-time and also envisaging the resource needs for when all the judges would be required to serve full-time. There is no doubt that the caseload of the Court, among other considerations, would determine whether the Court continues to function on a part-time basis over a long term or a much shorter period in terms of the salaries and allowances of the Judges. If the experience of the currently existing African Court on Human and Peoples’ Rights is anything to go by, it can provide some lessons for the future.31 Only the President of the Human Rights Courts serves on a full-time basis and in just 12 years of its existence, the caseload and other activities of the Court have increased tremendously. In 2016 alone the Court received 59 cases and 2 advisory opinion requests32. Effectively delivering on its judicial mandate and timely so, may be impacted by the part-time nature of the Judges’ work, as they are also generally involved in other occupations. Secondly, the Presidency would require formidable administrative support befitting of its role and mandate. The 16 Judges will require competent legal officers, assistants and secretaries, among other essential personnel. Such support staff complement for the Presidency must be clearly assessed taking into account the various stages of the Court’s development. Extrapolating from the currently existing Human Rights Court would be helpful even though the current Human Rights Court is only made up of 11 Judges, five Judges shy of the 16 required for the ACJHPR.

B. The Registry

In the workings of a judicial institution such as a Court, the Registry is literally the engine room where the administrative functioning of the Court is overseen. Without an effectively equipped and functioning Registry it will be very difficult for a court to deliver on its mandate. For the ACJHPR, the Registry is a vital organ of the Court. Article 22B (1) of the Statute of the ACHPR provides for a Registrar to lead the Registry supported by three Assistant Registrars. It is no coincidence that the Statute makes provision for three Assistant Registrars within the Registry. The three distinct Sections of the Court that have various jurisdictional mandates will surely require jurisdiction-specific attention in the way the Registry functions. The General Affairs Section, which is mainly a civil jurisdiction arm of the Court would require registry expertise in civil processes thus requiring an Assistant Registrar to oversee that arm. In the same vein, the Human Rights Section would need an Assistant Registrar to manage the human rights processes of the Court in the same way that the International Criminal law Section would require an Assistant Registrar versed in criminal processes. The Registrar would serve for a single term of seven (7) years while the Assistant Registrars would for a term of four (4) years renewable once.

Because of the importance of the Registry to the holistic administrative operations of the Court, it is important to properly assess its resource needs. There will be such departments or units within the Registry that are a sine qua non to a composite Court in the nature of the ACJHPR. Apart from the immediate office of the Registrar, there is the larger administrative services department that will be responsible for general recruitment/human resources, finance and budget, facility maintenance, procurement and the like. There will also be the language services department that will be responsible for ensuring translation of documents and the interpretation of proceedings in the various working languages of the African Union. The importance attached to a judicial process that makes for effective participation by litigants or respondents from various legal and language traditions cannot be over-emphasized. There will also be a witness and evidence unit or department that would further be arranged in terms of the civil, Human Rights and criminal dimensions of the Court. This will require a Victims and Witness Unit as well as a Detention Management Unit to specifically account for the international criminal law requirements of the Malabo Protocol33.

The various components of the Registry highlighted above require enormous resources that must be deliberately put in place for a credible ACJHPR to exist and to be taken seriously. It is therefore very important that AU policy makers pay attention to the detail. The detail from the beginning is important for a sustainable financing model to be arrived and applied over the years taking into account the stage of the Court in terms of its caseload and other activities over time.

C. Office of the Prosecutor

The extension of the jurisdiction of the African Court of Justice and Human Rights to international crimes that led to the adoption of the Malabo Protocol effectively created an international criminal tribunal of the African Union. In contemporary international criminal adjudication, enormous resources are required to run such courts. Article 22A of the Malabo Protocol provides for the Office of the Prosecutor which is composed of a Prosecutor and two Deputy Prosecutors who would all be elected by the Assembly of the African Union.34 The Prosecutor’s term of office will be one term of seven (7) years while the terms of office of the Deputy Prosecutors will be for four (4) years each, renewable only one.35 The Statute vests the Office of the Prosecutor with the responsibility to prosecute and investigate the proscribed crimes.36 The Statute requires the Prosecutor to be assisted by such staff as are necessary for the effective and efficient discharge of the mandate and responsibility of the office.37

For the ACJHPR to be a credible Court from the perspective of its criminal justice mandate, it must be equipped to deliver quality justice through the efficiency of its prosecutorial arm. The ability of the Office of the Prosecutor to do this is dependent on how it is resourced on two fronts – it investigative and prosecution mandates. It is in this regard that the Prosecutor is assisted by two Deputy Prosecutors – one to oversee investigations and the other the prosecution. The experience of the United Nations-backed Special Court for Sierra Leone (SCSC)38, the United Nations International Criminal Tribunal for Rwanda (ICTR)39, the United Nations International Criminal Tribunal for Yugoslavia (ICTY)40, the International Criminal Court (ICC)41, the Special Tribunal for Lebanon (STL), and most recently, the Extraordinary African Chambers (EACs)42, clearly shows that the work of the prosecutor is dependent on robust investigations and efficient prosecution of the alleged crimes. Apart from the general staffing and resources for the immediate or front office of the Prosecutor, ample resources will be required for properly equipping both the investigations and prosecutions departments. The number of staff as well as resources required for the various departments in the Office of the Prosecutor would of course be dependent on the stage of the Court’s work, requiring a short-term and a long-term outlook. Thus, conscious preparations must be made to determine what would be need in the short, immediate and long terms for the office of the Prosecutor.

D. The Defence Office

A lot of emphasis is usually placed on the Prosecution of accused persons resulting in enormous resources being at the disposal of the Prosecutor with little attention paid to defence issues. The importance of ensuring the rights of accused persons in international criminal justice adjudication necessitated the need to interrogate the level of attention paid to those who undergo criminal trials in international justice mechanisms as envisaged in the Malabo Protocol. The initial main and substantive attention in this regard was the eventual creation of the Office of the Principal Defender of the Special Court for Sierra Leone, which I had referred to elsewhere as the watershed in international criminal justice adjudication.43 The mandate of the SCSL Defence Office in accordance with Rule 45 of the Rules of Procedure and Evidence of the SCSL was to ensure ‘the rights of suspects and accused’ persons. That office carried out its mandate by providing initial advice, attending detention issues, providing legal assistance as may be ordered by the court, ensuring that facilities were made available to counsel for the defence of the accused, maintaining a roster of counsel that could be called upon to defend the accused and its personnel acting as duty counsel for the accused as me required, among various other things.44 While the SCSL may have blazed the trail in flagging the importance of defence issues in international criminal justice, its Defence Office was not independent but subject to the administrative oversight of the Registrar of the Court. The ICC would later establish the office of the Principal Counsel for the Defence in the mould of the Principal Defender of the SCSL. It is the Special Tribunal for Lebanon that established a fully independent Defence Office as an Organ45 within the principle of equality of arms between the Prosecution and the Defence.

The Malabo Protocol has followed in the footsteps of the STL to make the Defence Office of the ACJHPR an Organ of the Court.46 Article 22(C) of the amended Statute of the ACJHPR establishes the Defence Office as an independent Organ under the oversight of the Principal Defender, who would be appointed by the Assembly of the African Union. He or she would be assisted by such staff members as are required to enable the office to effectively and efficiently deliver on its mandate.47 As envisaged in the Statute of the of the ACJHPR, the Defence Office, just like other Organs of the Court would require enormous human and other resources to be able to fulfil its mandate of watching over the rights of accused persons including acting as public defender for indigent accused persons or such accused persons that the interest of justice would require the provision of legal assistance. There is nowhere else that the functions of the Defence Office would be more useful than in Africa where the average accused person is generally indigent requiring the need for elaborate legal assistance. In operationalizing the ACJHPR, attention must be paid to fully resourcing the Defence Office, as it is expected to play a vital role right from the beginning of the process in the same way as the Prosecution.

The organic structure of the ACJHPR as described above is indicative of what operationalizing the Court involves and should inform what resource measures to put in place to have a credible court. For the African Union to be able to do this, it must evaluate the Court’s resource needs in the context of what the Court is expected to do, drawing lessons from what has been done elsewhere. In this regard, it may be important to look at the Court, though a single court, from its composite nature of three courts fused into one. From this perspective, it could be said that the General Affairs Section of the Court is a mini International Court of Justice (ICJ); the Human Rights Section, a mini Human Rights Court; and the International Criminal Law Section, a mini International Criminal Court. It is thus important to study and draw lessons from similar endeavours for indicative resource needs and how that could be sustained.

5. Resource Needs and Applicable Lessons

Sustainably providing for the ACJHPR is a huge endeavour and requires a deliberate effort on the part of the African Union. The continental organization must draw lessons from similar institutions such as the ICJ, the SCSL, the ICTR and the ACtHPR, to name a few. The ICJ was operationalized in 1947 as the principal judicial organ of the United Nations. It is composed of 15 judges and has more or less a general affairs jurisdiction with no Human Rights and international criminal justice jurisdictions as envisaged under the ACJHPR. Structurally, it has a Presidency and a Registry. In the almost 71 years of it existence, the ICJ had had only 168 cases listed in it General List.48 The two-yearly budget of the ICJ for 2016 to 2017 was $ 52,543,90049 and that of 2018 to 2019 is $46,963,70050. There is no doubt that the ICJ has had limited judicial work compared to regional courts of a similar nature. It is generally funded within the United Nations system and thus through the regular general member states assessment.51 Funding the ICJ through member states assessment ensures stability in the ability of the Court to function and to carry out its mandate.

The SCSL as an international criminal justice mechanism only dealt with international crimes. It had a somewhat similar structure as the International Criminal Law Section of the ACJHPR. While it dealt with and convicted only ten persons, its average annual budget was not low. As I have observed elsewhere, ‘As small as the SCSL operation was relative to the other [international criminal] tribunals, its annual budget averaged between 26 and 30 million dollars’52 It is important to note that the funding of the SCSL was based on voluntary contributions – a not so good way of funding or sustaining any judicial or justice mechanism. The voluntary nature of funding the SCSL created an unhealthy anxiety from time to time regarding whether or not the Court would have adequate resources to continue to carry out its mandate.

The ICTR was the most significant international criminal justice mechanism to have operated on the African continent. As a mechanism designed to ensure legal accountability for the atrocities arising from the Rwandan genocidal war, it received enormous support having been established pursuant to a United Nations Security Council Resolution.53 The ICTR indicted 93 individuals of which 62 were convicted and sentenced.54 The Tribunal as an ad hoc measure operated for a period of over twenty years from 1994 to 2015 when it officially wound up and entered into a residual mechanism and it had an army of professional and general service staff. The proposed budget of the ICTR for the period 2004–2005 was $251.4 million,55 which meant that the resources required for the functioning of the Court from its inception to when it formally wound up end entered into a residual mechanism phase was quite enormous.

The experience of the currently existing ACtHPR is very instructive in deciphering the resource requirements of the ACJHPR. In its 12 years of existence, the Human Rights Court has received 161 applications or cases56. The total 2016 budget of the present Human Rights Court stood at USD 10,386.101.57 Seventy-Six percent of the said budget, representing USD 7,934,615, is from the assessed contributions of member states of the African Union while 24 per cent of the budget in the amount of USD 2,451.486 came from ‘international partners’58. This budget outlay needs to be considered within the context of the present characteristics of the ACtHPR as purely a part-time court that deals with Human Rights cases without the complexities inherent in criminal prosecutions of international crimes, or complex international civil claims between member states as could be envisaged in the International Criminal Law and General Affairs Sections of the ACJHPR, respectively.

The above overview of lessons from various judicial mechanisms provides a glimpse into what it may take to adequately resource the ACJHPR if it is to fulfil its mandate as a credible judicial arm of the African Union. It must be a court that should remain financially sustainable and fully financed by the resources of the African Union. How this could be done is the focus of the next section of this chapter, taking the current AU reform agenda into account.

6. Sustainably Financing the ACJHPR

As an institution that fuses three jurisdictional and legal competencies into one operation, the ACJHPR must be provided with adequate financial and human resources that are competitive, and sustainably so. The Court would complete the organic structure of the African Union as one of the most vital and permanent organs of the Union. It is not therefore, a body that is envisaged to fizzle out soon; in fact not at all. It thus becomes important that in the current mood of an AU reform as an organization that needs to take the financing of the Union much more seriously, the sustainable financing of the ACJHPR should occupy a central place in AU fiscal arrangements. Within this reform and under the funding mechanism envisaged in the AU 0.2 per cent levy on eligible imported goods into the continent, the AU must deliberately address the funding of its judicial arm in a forward looking manner. This it could do in three ways – through a regular budget, an endowment or a trust fund, and voluntary contributions from member states and willing partners. A regular budget would provide for the functioning of the Court based on predictable judicial and other activities from year to year from a predictable member states assessed contributions. A trust fund or an endowment fund would provide a reliable and sustainable source of funding for the future through proper investment channels. This would ensure that the court is placed in a position where it can be sure of its financial stability knowing the volatility of African economies that are dependent on commodities. This will enable the Court to continue to adequately function in circumstances of unforeseen financial drought. Voluntary contributions on the other hand, would assist the court to deal with ad hoc projects or activities, or enable it to bring on board short-term expertise that it may require to enhance its capacity from time to time.

It is envisaged that the new AU funding formula, if truly and fully implemented, would result in the Union generating more resources than it may immediately need or require. The situation where, in applying the 0.2 per cent import levy, member states would have the prerogative to keep for their domestic needs proceeds that are over and above their assessed contributions59, should be rethought. Those surpluses should be the source for the seed money for the endowment or trust fund for the Court.

The AU reform agenda provides an unmatched opportunity for the Union to really address how its institutions are funded. To ensure adequate financial accountability and to match the needs of those institutions with essential resources - particularly as it affects the ACJHPR, the AU must take a needed proactive step. As discussed earlier, it is essential to evaluate through a comprehensive study, the resource needs and requirements of the ACJHPR among other AU organs. This study should analyze the Malabo Protocol in terms of the structure of the Court and the resources for the optimal functioning of each of the structures – the sectional aspects of the Court – the General Affairs Section, the Human Rights Section and the International Criminal Law Section. In the same vein, the study should look at the organic structure – the Presidency, the Registry, the Office of the Prosecutor and the Defence Office. A clear assessment of resource needs that is specifically and holistically made, will provide a chance for getting it right in the sustainable financing of the ACJHPR.

It must not be business as usual where haphazard provisions are made for African Unions institutions without adequately thinking and really being alive to the needed resource requirements. For the ACJHPR, the significance of the situation cannot be overstressed – without the operationalization of the mechanism under the Malabo Protocol, a reputable and holistic judicial arm of the African Union will remain lacking. I would not want to imagine a United Nations without the International Court of Justice to articulate and interpret the norms established over the years by the United Nations systems when the need arises. Thus, an African Union without the operationalization of its judicial mechanism that is envisaged in its Constitutive Act for a continuously long period does not support the ideals that resulted in the transformation of the Organization of African Unity to the African Union.

7. Conclusion

Indeed, the adoption of the Malabo Protocol in 2014 was the ultimate streamlining of African Union’s judicial institutions that innovated the fusion of what could ordinarily stand as three separate courts – a Court of Justice of general jurisdiction, a Human Rights Court and an International Criminal Tribunal into a single judicial institution - the African Court of Justice and Human and Peoples’ Rights. The adoption of the Protocol was one thing; in fact, the simplest thing - all things considered; but operationalizing the Court that the Protocol created remains the most difficult. And the Court must be operationalized, as the AU cannot afford not to have a respectable judicial entity that should be relied on to resolve legal disputes within the African Union system. That is the significance of the ACJHPR. The need to operationalize the Court therefore must evoke serious thinking and concrete action on the financial sustainability of the institution, which has been the preoccupation of this chapter. Granted that there was no concerted effort to fully assess the financial implications of adopting the Malabo Protocol before it was adopted, this chapter sees it as a blessing in disguise, as it would have been nearly impossible to clearly articulate what would or would not be adopted by the AU Assembly at the time. Now that the Protocol has been adopted with clear organic structures and opened for ratification, it presents an opportunity for the AU to proactively take the next step to make the financial sustainability of the Court a cardinal point of emphasis and action. The chapter sees the current reform embarked upon by the AU on how its institutions are financed as the greatest singular opportunity in this regard. The strong resolve of the African Union to take its financial future into its own hands rather than overly relying on international partners to fund its programmes and institutions could not have come at a better time. The 2016 Kigali decision by the AU to impose 0.2 per cent import levy on eligible imports into the continent as way for member states to support the financing of AU institutions rather than from state treasury has the potential of making the AU financially sustainable. In this effort, the Court must therefore be prioritized, as the fused judicial institution would require enormous and sustainable resources to be able to fulfil its mandate. To get it right, the AU must take steps to embark on a post Malabo Protocol adoption study on the comprehensive resource needs of the Court so as to be able to place its financial requirements within the 0.2 per cent import levy financing mechanism just like the AU peace support operations. A concerted effort in this regard would ensure sustained financing for the Court through a regular budget from assessed contributions, an endowment or trust fund from surpluses as well as through voluntary contributions from partners to cater for ad hoc or short-term requirements of the Court.

The views expressed in this chapter are solely those of the author and not necessarily of the African Development Bank, the African Union Commission, or any other organ or agency of the African Union with whom the author worked closely during his time as the Legal Counsel of the African Union.

1 The ACtHPR was created pursuant to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (OAU/DOC.CAB/LEG/66.5) adopted on 10 June 1998 during the Organization of African Unity (OAU) Summit in Ouagadougou, Burkina Faso. It entered into force on 24 January 2004.

2 The ACJ is one of the institutions created by the Constitutive ACT of the African Union, which was adopted by the Thirty-Sixth Ordinary Session of the Assembly of the OAU in Lome, Togo on 11 July 2000. Article 18 of the Constitutive Act specifically establishes the Court, whose ‘statute, composition and functions … shall be defined in a protocol relating thereto.’

3 Decision on the Single Legal Instrument on the Merger of the African Court on Human and Peoples Rights and the African Court of Justice (Assembly/AU/Dec. 196(XI). See specifically DOC. Assembly/AU/13(XI)).

4 V. O. Nmehielle, ‘“Saddling” the New African Regional Human Rights Court with International Criminal Jurisdiction: Innovative, Obstructive, Expedient?7 African Journal of Legal Studies (AJLS) (2014) 742, at 9.

5 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. Adopted at the Twenty-third Ordinary Session of the Assembly, held in Malabo, Equatorial Guinea, 27th June 2014 (Hereafter, the Malabo Protocol). The Protocol is not yet in force. Pursuant to the provisions of Article 11 of the Protocol, it would enter into force 30 days after 15 Member States have ratified it. As at February 2018, the period of writing, only 10 AU Member States (Benin, Chad, Comoros, Congo, Ghana, Guinea Bissau, Kenya, Mauritania, Sierra Leone, and Sao Tome and Principe) have signed the Protocol. See Status List available at https://au.int/en/treaties (last visited 18 February 2018). There are no ratifications so far.

6 See the Malabo Protocol, Art. 1 that defines the term ‘Court’. See also Art. 8 on the nomenclature of the Court.

7 See generally, Nmehielle, note 4, 7–42; C.B. Murungu, ‘Towards a Criminal Chamber in the African Court of Justice and Human Rights’, 9 Journal of International Criminal Justice (2011), 1067–88; A. Abass, ‘The Proposed International Criminal Jurisdiction for the African Court: Some Problematical Aspects’, 60 Netherlands International Law Review (2013), 2750; P. Manirakiza, ‘The Case for an African Criminal Court to Prosecute International Crimes Committed in Africa’ (hereinafter The Case for an African Criminal Court ), in V.O. Nmehielle (Ed.), Africa and the Future of International Criminal Justice (Eleven International Publishers, The Hague, 2012), p. 375, among various others.

8 See Nmehielle, note 4.

9 Malabo Protocol, Art. 2.

10 St. of the African Court of Justice and Human and Peoples Rights, Art. 16(1).

11 Id., Art. 16 (2).

12 Id., Art. 9(1).

13 Id., Art. 22.

14 Id., Art. 22A.

15 Id., Art. 22B.

16 Id., Art. 22C.

17 Protocol of the Court of Justice of the African Union; adopted in Maputo, Mozambique, on 11 July 2003. The Protocol entered into force on 11 February 2009, having garnered the required 15 ratifications. As at February 2018, there are 18 ratifications. See List of Countries which have Signed, Ratified/Acceded to the Protocol of the Court of Justice of the African Union.

18 The Merger Protocol has only 6 ratifications as at February 2016 (Benin, Burkina Faso, Congo, Liberia, Libya and Mali) out of the 15 ratifications required by Article 9. See Ratification Status List available https://au.int/en/treaties (last visited 18 February 2018).

19 See Decision on the Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Doc. EX.CL/Dec.766(XXII; Doc. PRC/Rpt (XXV)), p. 1, para. 2; also cited in Nmehielle, note 4 at 41.

20 See Report on the Final and Structural Implications of Extending the Jurisdiction of the African Court of Justice and Human Rights to Encompass International Crimes, EX.CL/773(XXII) Annex II, 1–7.

21 Decision on the Outcome of the Retreat of the Assembly of the African Union, Assembly/AU/Dec.605 (XXVII), 1–2, at 1.

22 Id.

23 Id. at 2.

24 See H.E. Paul Kagame, The Imperative to Strength our Union: Report on the Proposed Recommendations for the Institutional Reform of the African Union, Presented to the African Union Assembly on 29 January 2017. On file with this author and also available at https://au.int/en/au-reform (last visited on 18 February 2018).

25 Assembly/AU/Dec.605 (XXVII), supra note 21 at 2.

26 See the St. of the African Court of Justice and Human Rights, Art. 3 as amended by Art. 2 of the St. of the St. of the African Court of Justice and Human and Peoples’ Rights.

27 See Id., Art. 6(1) as amended by Art. 4 of the St. of the Statute of the African Court of Justice and Human and Peoples’ Rights.

28 See the St. of the African Court of Justice and Human and Peoples’ Rights, Art. 22.

29 See the St. of the African Court of Justice and Human Rights, Art. 8(4) as amended by the St. of the African Court of Justice and Human and Peoples’ Rights, Art. 5.

30 Id., Art. 8(5) as amended by the St. of the African Court of Justice and Human and Peoples’ Rights, Art. 5.

31 See generally V.O. Nmehielle, ‘Seven Years in Business: Evaluating Developments at the African Court on Human and Peoples’ Rights17 Law, Democracy and Development (LDD) 317–41 (2013).

32 See 2016 Activity Report of the African Court on Human and Peoples’ Rights, EX.CL/999(XXX), 1–24, at 19, para. 47.

33 See St. of the African Court of Justice and Human and Peoples’ Rights, Art. 22(9) (a) and (b).

34 Id., Art. 22(A) (1) and (2).

35 Id., Art. 22(A) (3) and (4).

36 Id., Art. 22(A) (6).

37 Id., Art. 22(A) (7).

38 The SCSL was established by ‘An Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone’ pursuant to United Nations Security Resolution 1315 of 14 August 2000.

39 The ICTR was created by UN Security Council Resolution 955 of 8 November 1994 in response to the Rwandan genocide of the same year.

40 Pursuant to SC Res. 827, 25 May 1993, the United Nations Security Council established the ICTR for judicial accountability arising from the atrocities from the conflicts in former Yugoslavia.

41 The STL was established by an ‘Agreement between the United Nations and the Lebanese Republic’ pursuant to SC Res. 1757, 20 May 2007 to deal with terrorist activities that led to the killing of Prime Minister Rafiq Hariri among others.

42 The EACs were created pursuant to an ‘Agreement between the Government of the Republic of Senegal and the African Union on the establishment of the Extraordinary African Chambers’ signed on 22 August 2012. The agreement established the EACs within the judicial system of Senegal to for criminal accountability for international crimes committed in Chad from 7 June 1982 to 1 December 1990 when Hissene Habre was the president of Chad.

43 See V.O. Nmehielle, ‘The Defence Office of the Special Court for Sierra Leone: A Watershed in Realizing the Rights of Accused Persons International Criminal Justice’ in Charles Chernor Jalloh (ed), The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge: Cambridge University Press, 2013) 527–49.

44 See Rules of Procedure and Evidence of the Special Court for Sierra Leone, Rule 45(A)–(F).

45 See St. of the Special Tribunal for Lebanon, Arts. 7 and 13.

46 See The Malabo Protocol, Art. 2.

47 See St. of the African Court of Justice and Human and Peoples Rights, Art. 22(C) (1)–(8).

48 See www.icj-cij.org/en/cases (last visited 3 March 2018).

49 See Report of the International Court of Justice 1 August 2015 to 31 July 2016, at 10.

50 See Report of the International Court of Justice 1 August 2016 to 31 July 2017, at 10.

51 According to Article 33 of the Statute of the International Court of Justice, ‘The expenses of the Court shall be borne by the United Nations in such a manner as shall be decided by the General Assembly’.

52 Nmehielle, note 4, at 35.

53 UNSC Res. 955 of 8 November 1994.

54 See United Nations Mechanism for International Criminal Tribunals’ website – http://unictr.unmict.org/en/tribunal (Last visited 4 March 2018).

55 UN General Assembly Fifth Committee Press Release, GA/AB/3594, 24 November 2003 available at www.un.org/press/en/2003/gaab3594.doc.htm (last visited 4 March 2018).

56 ACtHPR, Press Release – African Court on Huma on Human and Peoples’ Rights begins 48th Ordinary Session, Arusha 23 February 2018.

57 2016 Activity Report of the African Court on Human and Peoples’ Rights, supra note 32 at 16.

58 Id.

59 According to the implementation discussions on the 0.2 per cent levy, ‘Any surplus collected by Member States after the fulfillment of obligations under the assessed contribution are to be retained by the State …’ See Financing of the Union by Africa for Africa (a Summary Note on the financing reform on file with the author) at 7.

38 Between Hope and Doubt The Malabo Protocol and the Resource Requirements of an African Criminal Court

Stuart Ford
1. Introduction

In the nearly twenty years since the Organization for African Unity became the African Union (AU),1 it seems the AU has been in a state of perpetual reorganization, expansion, or modification.2 The pace of change has sometimes been dizzying. Just in 2016, the AU committed to creating the African Minerals Development Centre, the African CDC, the African Science Research and Innovation Council, the Pan African Intellectual Property Organization, the Africa Sports Council, and the African Observatory in Science Technology and Innovation.3

But many of these institutions exist only on paper.4 For example, the AU formally adopted a constitutive document for all of the organizations listed in the paragraph above, but those documents have not been ratified by enough member states for them to enter into force.5 The result is that the organizations exist in limbo waiting for the state support they need to come into being. Once their constitutive documents come into force, the AU will still have to give them the resources they need to succeed.

Even some older institutions still exist only on paper. For example, the Protocol on the African Investment Bank (adopted 2009), the Agreement for the Establishment of the African Risk Capacity Agency (adopted 2012) and the Protocol on the Establishment of the African Monetary Fund (adopted 2014) have not been ratified by enough states to enter into force.6 In fact, of the three financial institutions that were specifically listed in the AU’s Constitutive Act in 2001 as being core components of the AU,7 none of them exist yet.8 The repeated failure of the AU to create functioning institutions has raised legitimate questions about whether the AU has the political will and capacity to follow-through on its many commitments.9

These questions about the AU’s ability and desire to create functioning institutions are particularly relevant to its recent adoption of the Malabo Protocol.10 The Malabo Protocol adds an international criminal law component to the jurisdiction of the African Court of Justice and Human Rights (ACJHR).11 The addition of criminal jurisdiction to the ACJHR represents a significant increase in the court’s subject matter jurisdiction.12 It also greatly increases the difficulty of the court’s work and necessitates a more complex organizational structure.13 But can this new and improved ACJHR be successful? Will the AU have the political will to make it a reality? This chapter argues that the resources that the AU eventually devotes to the ACJHR will shed light on whether to be hopeful or doubtful about the court’s eventual success.

Building a functioning international criminal court is not easy. It requires substantial investigative and adjudicative resources.14 If the AU does not devote sufficient resources to the ACJHR, it will not be successful.15 Of course, having sufficient resources is not a guarantee of success, but if the AU devotes sufficient resources to the international criminal law component of the ACJHR that would be a very hopeful sign. First and foremost, it would indicate that the AU is committed to the ACJHR’s success. This is incredibly important as the ACJHR will not be successful if it does not have the financial and political support of the AU.16

Thus, this chapter will explore the resources that will be needed to give the ACJHR a functioning international criminal law component. The International Criminal Court (ICC) will be used as a comparator. The ICC has publicly released information about the resource requirements of its own work and that will form the basis for predicting the eventual requirements of the ACJHR. While it is impossible to know exactly what resources are needed to carry out the Malabo Protocol, this chapter estimates that a fully operational ACJHR will need about 370 full-time personnel and a budget of approximately 50 million euros per year.17 It is unlikely that the Malabo Protocol can be successful in the long-run with dramatically fewer resources than this. When the Malabo Protocol comes into force, the resources that the AU devotes to its implementation will give us insight into whether the expanded ACJHR can be successful.

2. The Development of the AU’s Judicial Bodies

In general, the evolution of the AU’s judicial bodies looks similar to the rest of the AU in that they have undergone rapid and extensive changes.18 It also looks similar to the rest of the AU in that there has been a lack of follow-through. The first judicial body within the AU was the African Court of Human and Peoples’ Rights (the ACHPR). It was created to foster the “attainment of the objectives of the African Charter on Human and Peoples’ Rights.”19 The protocol establishing the ACHPR was opened for signature in June 1998 and entered into force in January 2008.20

In addition, the AU’s Constitutive Act called for the establishment of a Court of Justice21 to serve as the “principal judicial organ” of the AU.22 A protocol for the establishment of the African Court of Justice (ACJ) was adopted in July 2003 and entered into force in February 2009.23 Almost as soon as the ACJ’s constitutive document had been adopted, the AU began talking about merging the ACHPR and the ACJ into a single court.24 This was premised, at least in part, on the desire to reduce the cost of supporting two separate international courts.25

In 2008, the AU issued the Protocol on the Statute of the African Court of Justice and Human Rights.26 This protocol merges the two existing courts to create the ACJHR.27 While the protocol to establish the ACJHR was adopted in 2008, it has never come into force. It requires fifteen ratifications to enter into force,28 but has only been ratified by six states.29

Yet even though the protocol establishing the ACJHR had not come into force, in 2009 the AU began discussing modifying the ACJHR to add an international criminal component.30 This was driven largely by the indictment of African government officials by European states and the ICC.31 The indictments were seen by the AU as inappropriate interference in African affairs.32 By adding a criminal component to the ACJHR, the AU hoped to take control of the indictment and trial of African leaders.33 These discussions culminated in 2014 in the adoption of the awkwardly-named Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human rights (hereafter called the “Malabo Protocol” because it was adopted in the city of Malabo in Equatorial Guinea).34 Entry into force of the Malabo Protocol requires fifteen ratifications,35 but, as of July 2017, it had not been ratified by a single country.36

The story of the AU’s judicial bodies has been one of over-commitment and under-delivery. Almost ten years ago, the AU decided to merge the ACHPR and the ACJ to form a single court – the ACJHR. Progress toward that goal has been slow. But despite the fact that the ACJHR had not been established yet, the AU almost immediately began discussions to greatly expand the planned ACJHR by adding an international criminal law component.

At the rate that ratifications are currently being received, it could be another five or ten years before the protocol establishing the ACJHR comes into force.37 At that point, it would require another fifteen ratifications of the Malabo Protocol before the amendments to add a criminal component to the ACJHR would take effect. As a result, it is not clear when or if the Malabo Protocol will come into effect, but it is unlikely to occur in the near future.38

3. A New African Criminal Court?

Assuming that, at some point in the future, the Malabo Protocol comes into force, what would happen? The Protocol makes a number of significant changes to the ACJHR. First, it alters the structure of the ACJHR. As originally conceived, the ACJHR would have two sections: a Human Rights Section that would hear all cases relating to “human and/or peoples’ rights” and a General Affairs Section that would hear all other eligible cases.39 The Malabo Protocol adds a new International Criminal Law Section,40 which has jurisdiction over “all cases relating to the crimes specified” in the statute.41

The addition of a criminal component to the ACJHR required other structural changes. For example, it necessitates the creation of an Office of the Prosecutor, and a Defence Office.42 The Office of the Prosecutor will be responsible for “the investigation and prosecution” of crimes43 while the Defence Office will be responsible for “protecting the rights of the defence [and] providing support and assistance to defence counsel.”44

The Malabo Protocol also lays out the crimes the expanded ACJHR will have jurisdiction over. First, it will have jurisdiction over the core crimes under international law: genocide, war crimes, and crimes against humanity.45 It will also have jurisdiction over the crime of aggression.46 The definitions of these four crimes appear to have been largely based on the definition of those crimes in the Rome Statute of the International Criminal Court, although some changes have been made to expand them at the margins.47 The ACJHR will also have jurisdiction over a number of crimes that are not within the jurisdiction of the ICC like piracy, terrorism, corruption, money laundering, drug trafficking, human trafficking, and the exploitation of natural resources.48 These new crimes represent a potential source of problems as some of them do not have well-established definitions.49

The overall result is a significant change in both structure and jurisdiction for the ACJHR. The resulting court will be unique in its attempt to incorporate the components of a regional international court, a human rights court, and an international criminal court into a single institution.50 But will the new and expanded ACJHR be successful? This question will be explored below.

4. Between Hope and Doubt

The adoption of the Malabo Protocol has left many observers unsure whether to be hopeful or doubtful. On the one hand, there are reasons to be hopeful that the Malabo Protocol will make a positive impact.51 First, having a regional court capable of investigating mass atrocities committed in Africa could help shrink the impunity gap on the continent.52 Second, there may be some benefit in having cases arising out of African situations prosecuted in Africa.53 Third, the Malabo Protocol will grant to the ACJHR the ability to prosecute some crimes that are outside the jurisdiction of the ICC, but are relevant in an African context.54 Fourth, it says all the right things.55 In the Preamble to the Malabo Protocol, the AU reiterated its commitment to “peace, security and stability on the continent” and to protecting human rights, the rule of law and good governance.56 The members of the AU also stressed their “condemnation and rejection of impunity” and claimed that the changes in the Malabo Protocol will help “prevent[] serious and massive violations of human and peoples’ rights … and ensur[e] accountability for them wherever they occur.”57 In short, the stated goals of the Malabo Protocol are very positive. They hold out hope of preventing atrocities and ensuring accountability. Thus, there are reasons to be hopeful.58

On the other hand, there are also reasons to be doubtful.59 The first concern is that the AU often appears to lack the political will and capacity to implement its vision for the organization.60 This can be seen with the AU’s financial institutions. Despite being identified as key to the organization in the Constitutive Act, more than fifteen years later they still do not exist.61 Something similar may happen to the Malabo Protocol.62 Even if the Malabo Protocol does come into force, will the AU have the political will and resources to adequately fund the expanded ACJHR?63

A second concern is whether the AU really intends the Malabo Protocol to be successful. The AU has a tense relationship with the ICC.64 The ICC has brought charges against a number of African leaders and this has upset many AU member states.65 The indictments of Presidents Al-Bashir of Sudan and Kenyatta of Kenya “galvanized [the] AU’s resolve to establish an African regional criminal court to basically serve as a substitute and operate parallel to the ICC.”66 Thus, one way to view the Malabo Protocol is as a mechanism to prevent the ICC from exercising jurisdiction over senior government officials accused of committing crimes in Africa.67 And indeed, there are some signs that the drafters of the Malabo Protocol hoped that the addition of criminal jurisdiction to the ACJHR would have this effect.68

Creating a regional court whose work would prevent the ICC from exercising jurisdiction over violations of international criminal law committed in Africa would be fine if the AU intended the ACJHR to fairly and impartially prosecute violations committed by African leaders.69 But there is also the possibility that the AU intends to use the Malabo Protocol to try and shield African leaders from accountability for human rights violations.70 For example, the Malabo Protocol has a worrying provision on immunities.71 It prevents the ACJHR from instituting or continuing cases against “any serving AU Head of State” or “other senior state officials.”72 This has led to fears that the Protocol is designed, not to end impunity, but to shield African leaders from accountability.73

Given that there are reasons to be both hopeful and doubtful about the Malabo Protocol, how should we view it?74 The answer may lie in what happens if and when the Protocol enters into force. At that time, the AU will have the difficult task of turning the blueprint in the Malabo Protocol into a functioning international criminal court. It will have to staff the court and give it the resources and support it needs to be successful. This will not be an easy task.75

One key indicator of the AU’s intentions toward the new and improved ACJHR will be the resources it devotes to the court. For it to live up to the hopeful vision of a successful regional court that reduces impunity and prevents atrocities, the ACJHR will have to have sufficient resources to carry out both its investigative and its adjudicative functions. On the other hand, if the court is mainly intended to insulate African leaders from accountability for human rights abuses, it will probably not be given the resources to conduct robust investigations and prosecutions. Thus, one way to evaluate the court will be to look at the resources it receives.

Of course, adequate resources are not a guarantee of success, but they are a prerequisite for it.76 It will be extremely difficult for the court to be successful if it lacks the resources to carry out its functions. The rest of this chapter will examine what sort of resources one would expect the new ACJHR to need to be successful. Section 5 will look at the scope of the crimes usually investigated by international criminal courts, while Section 6 explores the investigative resources necessary to meaningfully investigate those crimes. Section 7 describes a typical trial at an international criminal court, while Section 8 explores the adjudicative resources necessary for such a trial. Section 9 presents an estimate of the staffing needs and costs of a fully operational ACJHR, while Section 10 compares those estimated costs to the AU’s early projections of the expense of the court. Finally, this chapter’s conclusions are presented in Section 11.

5. International Crimes

Most domestic crimes involve a single perpetrator, a single victim and a single crime site.77 And very few domestic crimes involve the most serious offenses like rape and murder.78 International crimes, at least the ones that are investigated and tried before international courts, look nothing like the typical domestic crime.

First, the kinds of crimes that are investigated and prosecuted at international tribunals are almost always perpetrated by large hierarchically organized groups working together.79 Most often the perpetrators are military or paramilitary units of various sorts. In addition, the majority of international crimes take place as part of an armed conflict, with all the systematic violence that entails.80 Even when there is not an armed conflict, there is still usually extensive politically-motivated violence aimed at civilians.81 International crimes are also usually much larger in geographic and temporal scope than domestic investigations. The typical ICC investigation involved crimes committed at dozens of different crime sites over time periods that ranged from several months to several years.82

International crimes also tend to be extremely serious and involve the widespread commission of rape, torture, murder, inhumane treatment and forcible displacement. For example, at the ICC, the average investigation covered the unlawful deaths of more than a thousand people83 and the forcible displacement of huge numbers of civilians.84 Systematic rape is a common feature of international crimes.85 International crimes also tend to be marked by extreme cruelty, often against vulnerable groups like women, children, and the elderly.86

As a result of these features, international crimes are vastly more complex than the average domestic crime. They involve a larger number of victims, more serious offenses, and take place over larger areas and longer time periods. They also take place during periods of systematic violence and tend to be carried out by large hierarchically organized groups. As a result, they require substantial resources to investigate.87

6. Investigative Resources

Assuming the ACJHR undertakes criminal investigations that are similar in gravity to those undertaken by the ICC,88 the ICC’s experience can be a guide to the investigative resources the ACJHR will need. The typical ICC investigation lasts about three years.89 The investigative team varies in size over the course of the investigation, with fewer in the first few months and the last few months. But for at least two years, during what the ICC calls the “full investigation” phase, the investigative team is composed of about 35 personnel.90

This team includes investigators and analysts, as well as a handful of lawyers, legal assistants and case managers.91 It also includes specialists in forensics and digital evidence, and personnel to provide field support and security.92 Over the course of three years, this team will screen hundreds of potential witnesses, interview about 170 of them, and collect thousands of pieces of physical and digital evidence.93 It will then analyze this information so that the Prosecutor can decide whether to issue charges and, if so, who to charge, and what to charge them with.

It might be tempting to conclude that the ACJHR needs only one investigative team, but then it would only be able to undertake one investigation every three years. This would almost certainly not be enough. For example, the ICC anticipates opening nine new preliminary investigations and one new full investigation every year.94 This is on top of the six active investigations it will have in any given year.95

The ACJHR will probably need at least two investigative teams. Given that investigative teams only need to be at full strength during the middle of the investigation, it seems plausible that two teams could handle three investigations every three years (assuming that the start of the investigations was staggered). This would give the ACJHR the capacity to undertake approximately one new investigation every year. Thus, in any given year, the ACJHR would have two investigations ongoing, one that was being wrapped up, and have the ability to open one new one, if necessary. This is less investigative capacity than the ICC has, but would probably be sufficient, at least initially.

7. International Trials

Of course, completing an investigation is only the first step in a long process. The most visible part of the process comes next: the trial. International trials are complex undertakings that can take years to complete. For example, at the International Criminal Tribunal for the former Yugoslavia (ICTY), the average trial took 176 court days to complete.96 During the trial, an average of 120 witnesses testified and more than 2,000 exhibits were entered into evidence.97 While some have criticized international trials as too long and too slow,98 it appears that this complexity is necessary.99

International trials feature a number of factors that increase their complexity relative to the average domestic trial. First of all, they often involve multiple defendants accused of acting together, which increases trial complexity.100 International trials also tend to involve a large number of charges against each accused, which also increases complexity.101 Finally, another hallmark of international trials is that the accused tend to be senior military or political leaders, which also increases the length of the resulting trial.102

This latter point is particularly important as it generates significant additional trial complexity.103 This complexity appears to be a result of the difficulty of attributing responsibility for mass atrocities to senior leaders who are both geographically and organizationally distant from the crimes.104 Attributing responsibility requires establishing evidence that links the charged persons to the crimes carried out by the direct perpetrators. International criminal lawyers refer to this as the “linking evidence” and it is critical to demonstrating the guilt of the accused. Establishing this link, however, is complex and time-consuming. This complexity is necessary, however, if courts are serious about ending impunity for those most responsible for mass atrocities.105

One result of the length and complexity of international trials is that courts need significant resources to carry them out. This is true both in the Office of the Prosecutor and Chambers. If adjudicative resources are insufficient, then trials may be delayed. In a worst case scenario, prosecutions may fail for lack of evidence or accused may have to be released because of the delay in bringing them to trial.

8. Adjudicative Resources

So, what adjudicative resources does the new ACJHR need to conduct successful trials? Again, the experience of the ICC will be used as a guide. The Office of the Prosecutor at the ICC estimates that the average trial takes about five and a half years from the completion of the investigation until the conclusion of the appeal. This includes half a year of pre-trial preparation, three years for the actual trial, and two years for the appeal.106 The core trial team is composed of about 15 personnel. The majority of these personnel come from the prosecution division and includes lawyers, legal assistants, and case managers.107 They are supported by a small number of investigators who provide support for cross-examination of defense witnesses and investigation of defense theories.108 This team has to be in place for about three and a half years to complete a single trial. Assuming that the ACJHR closes one investigation each year109 and that (like the ICC) the majority of new investigations result in immediate trial proceedings,110 then there will be approximately one new trial beginning each year. Given that each trial lasts three years, the ACJHR would need at least three trial teams to staff those trials.

The Office of the Prosecutor at the ACJHR will also need a group of lawyers and support staff dedicated to appeals. If one trial finishes each year, and appeals last two years, then on average there will be at least two final appeals going on at any time. To handle two final appeals plus a small number of interlocutory appeals arising out of ongoing cases, the ICC requires seven personnel.111 It seems likely that the ACJHR would need an appeals section of about the same size.

In addition to the required personnel within the Office of the Prosecutor, the ACJHR will also require the necessary staff within Chambers. The new International Criminal Law Section will have within it three Chambers: a Pre-Trial Chamber, a Trial Chamber and an Appellate Chamber.112 But, it appears the International Criminal Law Section as a whole will have only six judges.113 This is almost certainly inadequate.114

The Pre-Trial Chamber requires one judge, the Trial Chamber requires three judges, and the Appellate Chamber requires five judges. Even if only one trial was going on at a time six judges would be inadequate because it would be impossible to staff all three chambers unless judges sat on multiple chambers for the same case. This would be problematic as it would require a judge who sat at an earlier stage of a case (say as a trial judge) to then adjudicate a later stage (say as an appellate judge). Having the same judge sit at different stages of the same case undermines the defendants’ fair trial rights.115 So, for this reason alone, the ACJHR would need at least nine judges so that no judge would have to sit at different stages of the same case.

But even nine judges would probably not be enough. Assuming that one new trial begins each year and that each trial lasts about three years,116 the ACJHR will need to constitute three Trial Chambers. This would require nine judges on its own. Even if the existing Appellate Chamber could handle all of the appeals and a single Pre-Trial Chamber judge could handle all pre-trial matters that would still mean that the ACJHR would need fifteen judges just in the International Criminal Law Section.117

In addition to 15 judges, the International Criminal Law Section would also need the necessary legal personnel to support those judges. The ICC estimates that it needs five full-time legal personnel assigned to Chambers per trial.118 If the ACJHR has similar needs, it would require fifteen legal personnel to staff the three Trial Chambers. Again, following the ICC’s model, the Appellate Chamber would need a staff of ten legal officers119 while the Pre-Trial Chamber would require only two personnel (assuming that only a single judge is assigned to it).120

Finally, the Chambers will need something like the ICC’s Court Management Section, which maintains the official records of the proceedings, distributes orders and decisions and maintains the Court’s calendar, including the scheduling of all hearings.121 The ICC employs 33 people in the Court Management Section122 to support the work of 18 judges.123 This chapter argues that the ACJHR will eventually need fifteen judges in the International Criminal Law Section. This is on top of the judges in the Human and Peoples’ Rights Section and the General Affairs Section. Accordingly, it seems likely that the ACJHR will need a similarly sized court management section to support the work of those judges.

9. Staffing a New International Tribunal

As the previous sections have demonstrated, building a functioning international criminal court is far from simple. First, it will need to have the staff to carry out its investigative functions. Within the new ACJHR’s Office of the Prosecutor this will probably mean two investigative teams of about 35 personnel each. This will include a mix of investigators, analysts, forensics experts, and legal personnel.

The court will also have to have sufficient personnel to carry out its adjudicative functions. This will almost certainly mean in increase in the number of judges assigned to the International Criminal Law Section to 15 or so judges. They would need to be supported by at least twice that number of legal officers. In addition the prosecutions division within the Office of the Prosecutor will need three trial teams of about 15 personnel each plus an appeals team of about 7 or 8 personnel. Finally, there must be some organ like the ICC’s Court Management Section to create the official record and handle all of the scheduling issues.

And these are just the core personnel tasked with carrying out the investigations and trials. In practice, international courts need additional personnel to support the core tasks. For example, the OTP at the ICC contains a Services Section that contains the Information and Evidence Unit and the Language Services Unit.124 These are important units that help control and preserve evidence and provide the interpretation and translation services that are almost certainly going to be needed by the investigative and prosecutorial teams.125 The Services Section at the ICC is about one-third the size of the Investigation Division and half the size of the Prosecutions Division.126

In addition, the Amended Statute of the new ACJHR specifically says that the Registrar must create a Victims and Witnesses Unit to provide “protective measure and security arrangements, counselling and other appropriate assistance” for victims and witnesses.127 It also requires the Registrar to set up a Detention Management Unit to “manage the conditions of detention of suspects and accused persons.”128 Finally, the Amended Statute provides for an independent Defence Office that will be responsible for “protecting the rights of the defense, providing support and assistance to defence counsel … .”129 These units will have to be staffed. At the ICC, the Office of Public Counsel for the Defence has similar functions to the ACJHR’s Defence Office and has five personnel.130 Similarly, the ICC’s Detention Section has five staff members.131 The ICC office most similar to the ACJHR’s Victims and Witnesses Unit is the Victims and Witnesses Section.132 The ICC employs 63 people in this task.133

It is also highly likely that the new ACJHR will need other more general support services. At the ICC, these are located within the Registry. It is likely the same would be true at the ACJHR.134 At the ICC, the Registry includes functions like a Human Resources Section,135 a Budget Section,136 a Finance Section,137 a Security and Safety Section138 and a General Services Section.139 While the ACJHR would not necessarily need to be structured in the exact same way, it will need the same services. It will need to have staff that provide security, clean and maintain the buildings, and pay the bills. Even if we assume that the new ACJHR would only need about half as many personnel in these functions as the ICC, it would still need something like 80 people in these support positions.

The following organizational charts make an educated guess about what resources the new and expanded ACJHR will need to successfully investigate and prosecute international crimes once it is fully operational.140 These are not meant to be exact predictions. For example, it may be possible to make the investigations teams slightly smaller. Or it might be possible to have fewer legal officers in Chambers and fewer personnel in the Victims and Witnesses Unit. Perhaps the court can get by with fewer personnel in support roles. Of course, cutting corners on resources can be counter-productive, as the ICC has discovered.141

Figure 38.1
Figure 38.2
Figure 38.3

These figures suggest a court with about 145 personnel in the Office of the Prosecutor. The majority of the personnel in the OTP would be working on investigations. The Presidency would be composed of 25 judges and 50 legal officers. Their primary function would be to hear the trials and appeals. Finally, the Registry would require about 145 personnel to provide the needed support services to the court. In addition, the Defence Office will have five or six staff members. This assumes that there will be no permanent interpretation/translation office in the Registry and that interpretation and translation services will be provided under service contracts rather than through the hiring of full-time personnel.142

Overall, the expanded ACJHR would have a staff of about 370 personnel. This would make it roughly one-third the size of the ICC, which currently has about 1,100 personnel.143 This implies an expected cost of about 48 million euros per year for the new ACJHR.144 This is many times the current budget of the AU’s judicial bodies.145

10. Early AU Estimates of the ACJHR’s Needs

The AU’s member states have been concerned about the consequences of expanding the ACJHR’s jurisdiction.146 So, for example, at a meeting of Ministers of Justice in 2012, various delegations asked about the “financial and budgetary implications” of expanding the jurisdiction of the court.147 This concern has resulted in a small number of documents that discuss the expected resource requirements of the ACJHR. Unfortunately, these documents are from 2012, so it is unclear whether they still represent the position of the AU.148 But given that they are the only financial projections from the AU that are available, this chapter will discuss them.

The reports discuss whether there are existing courts that could be used as examples of the resources the ACJHR will need. For example, the report of the meeting of Ministers of Justice notes that the Special Court for Sierra Leone (SCSL) cost $16 million per year in 2011 and employed slightly more than 100 personnel.149 It also notes that the International Criminal Tribunal for Rwanda (ICTR) cost $130 million per year in 2010 and employed 800 staff.150 But it takes no position on whether either of them is a good model for the ACJHR. Another report suggests that the trial of the former President of Chad, Hissène Habré, in Senegal, which reportedly cost about 7 million euros over three years, represents the “most appropriate” comparison.151

All of these comparisons are flawed. The ACJHR probably does not need to be as big as the ICTR at its height.152 Nor is the trial of a single individual – Hissène Habré – likely to represent the experience of the ACJHR, which may need to open one new investigation and begin one new trial every year.153 The SCSL in 2011 is not a particularly good comparison either. By 2011, the SCSL had almost completed its mandate. The only significant legal activity that year was the trial of Charles Taylor.154 There were no new investigations155 and minimal activity by the Appeals Chamber.156 The expanded ACJHR will have to undertake complex investigations and be able to deal with more than one trial and appeal at a time. The most obvious contemporaneous comparator is the ICC. The omission of references to the ICC in the AU’s documents may stem from its difficult relationship with the ICC.157

If the SCSL is to be used as a comparator, however, then the SCSL in 2007 is a better choice. In that year, the SCSL was engaged in the CDF trial, the RUF trial, and the AFRC trial.158 There was also substantial activity in the Appeals Chamber.159 The Office of the Prosecutor, in addition to participating in the ongoing trials, was also engaged in the investigation of the Charles Taylor case.160 This is more like what a fully operational ACJHR can expect. But it is worth noting that the SCSL cost $36 million in 2007 and employed more than 400 people.161 This is similar to the projections in this chapter.162

Besides looking for appropriate comparators, one of the AU’s reports also contains a proposed staffing table for the expanded ACJHR.163 A summary of that information is contained below in Table 38.1.164 One noticeable (and presumably deliberate) omission is any entry for the judges and their salaries. But beyond that, there are some staffing assumptions that are simply unrealistic.

Table 38. 1 AU’s Proposed Staffing for ACJHR

OfficeComponentsNo. of StaffEstimated Cost
Registrar
Office of the Registrar18$420,791
Information and Communication3$89,403
Languages Unit41$1,127,451
Sub-Total62$1,637,645
Legal Division
Office of the Division1$45,551
Legal Unit16$511,568
Library, Archives, and Documentation14$266,692
Sub-Total31$823,811
Finance, Admin. and HR
Office of the Division2$91,102
Finance, Budgeting, and Accounting6$131,838
HR and Administration8$169,668
Procurement, Travel, and Transport11$144,809
IT Services10$254,860
Security and Safety30$326,022
Protocol Unit9$168,546
Sub-Total76$1,286,845
Office of the Prosecutor
Office of the Prosecutor6$189,696
Prosecution Division5$161,511
Investigation Division1$38,489
Sub-Total12$389,696
Total181$4,137,997

For instance, the Office of the Prosecutor does not have sufficient capacity. Apart from the Prosecutor and two Deputy Prosecutors, it has only four legal officers in the Prosecution Division. This might be enough to conduct a single, relatively simple trial, but even then it lacks sufficient support in the form of legal assistants and case managers.165 It would not permit the ACJHR to undertake complex trials or try more than one case at a time. There is also no provision for an appellate team. This may not be needed at start-up, but at some point the Office of the Prosecutor will need staff devoted to appeals.166

A bigger problem is the lack of investigative capacity. The staffing table only provides for a single individual in the Investigation Division. This is inadequate, even at start-up. International criminal investigations are enormously complex and require substantial resources.167 The typical ICC investigation team is composed of 35 personnel, including investigators, analysts, lawyers, legal assistants, case managers, and specialists in forensics and digital evidence.168 Without a robust investigative capacity, the ACJHR cannot be successful.

There are also problems in other organs of the court. For instance, there appears to be only a single person assigned to the Defence Office and a single person assigned to the Victims and Witnesses Unit. Both of these units will almost certainly need additional staff. The ICC has five personnel in the Office of Public Counsel for the Defence and 63 people in the Victims and Witnesses Section.169 The ACJHR may not need this many personnel, but two people is almost certainly insufficient.

In addition to omitting the judges and their salaries, the proposed staffing table does not provide for any legal officers in Chambers. The ICC averages almost two legal officers per judge, which implies a need for approximately 30 legal officers in Chambers.170 A final issue is that the proposed staffing table does not appear to provide for a large enough court management section. It indicates that there will be 9 personnel assigned as either court recorders, assistant court recorders, or court clerks. This is probably not enough.171

While the staffing proposal is presented as the ACJHR’s staff requirements at the “outset,”172 it would not be sufficient even at start-up. As soon as the ACJHR received its first case, which would likely occur during the court’s first year of operation, the problems would begin. Without any investigative capacity it would not be able to conduct an investigation. The court would likely be overwhelmed with victims and witnesses that it is ill-prepared to accommodate. It also seems to lack the legal officers and court management personnel necessary to support the judges in their work.

It may be a mistake to read too much into the AU’s early projections. Nevertheless, if the expanded ACJHR’s staffing ends up looking like the 2012 proposal, it is unlikely that it will be successful. Such a court might be able to try one small case every two or three years, but it would not be able to live up to the AU’s expectations. The Malabo Protocol states that the expanded ACJHR is intended to prevent serious violation of human and peoples’ rights and ensure accountability for those violations.173 For it to achieve these goals, the ACJHR will need robust investigative, prosecutorial, and adjudicative capacity. Furthermore, If it does not have sufficient resources to investigate and prosecute those situations which would otherwise fall under the purview of the ICC, it will not be able to achieve the AU’s goal of depriving the ICC of jurisdiction over situations in Africa either.174

11. Conclusion

The main takeaway from this chapter is that operating an international criminal court is not cheap. Investigating and prosecuting mass atrocities takes significant resources. Thus one way to evaluate the expanded ACJHR will be to look at the resources the AU assigns to the court. If the AU does not assign it sufficient resources to carry out complex in-depth investigations and difficult multi-year trials and appeals, then it is extremely unlikely that the court will be successful in shrinking the impunity gap or preventing atrocities. If, on the other hand, the AU does provide the ACJHR with the resources and political support it needs to carry out its mandate, then there will be reason to be hopeful about its eventual success.175

1 See Corinne A. A. Packer & Donald Rukare, ‘The New African Union and Its Constitutive Act’, 96 American Journal of International Law 365 (2002) 365–379 (describing the formation of the AU); Konstantinos D. Magliveras & Gino J. Naldi, ‘The African Union – A New Dawn for Africa?’, 51 International and Comparative Law Quarterly 415 (2002) 415–425 (same).

2 See Tiyanjana Maluwa, ‘Ratification of African Union Treaties by Member States: Law, Policy and Practice’, 13 Melbourne Journal of International Law 636684, at 638 (2012) (arguing that the increase in the rate of treaty adoption after 2002 was the result of the AU’s “realization that these treaties are critical to the acceleration of African economic and political integration”).

3 See OAU/AU Treaties, Conventions, Protocols & Charters, available at https://au.int/web/en/treaties (last visited June 22, 2017).

4 See Maluwa, supra note 2, at 639–40 (noting that the AU has been far more successful at creating new treaties than it has been in getting member states to ratify those treaties so that they can enter into force).

5 See OAU/AU Treaties, Conventions, Protocols & Charters, available at https://au.int/web/en/treaties (last visited June 22, 2017).

6 Id.

7 See Constitutive Act of the African Union, Art. 19 (listing the AU’s financial organs as the African Central Bank, the African Investment Bank and the African Monetary Fund)

8 The constitutive documents for the Investment Bank and the Monetary Fund have been adopted but have not yet come into force, while the constitutive document for the Central Bank is still being drafted. See The Financial Institutions, available at https://au.int/web/en/organs/fi (last visited June 22, 2017).

9 See Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court (2016) at 29–31 (noting the difficulty the AU has had in providing sufficient resources to sustain its institutions).

10 See infra Part 2 (describing the Malabo Protocol).

11 Id.

12 See infra Part 3.

13 Id.

14 See infra Parts 6–8.

15 Cf. Stuart Ford, ‘What Investigative Resources Does the International Criminal Court Need to Succeed?: A Gravity-Based Approach’, 16 Washington University Global Studies Law Review 170 (2017) (arguing that the ICC has insufficient resources and that is one of the reasons it has not been as successful as its supporters had hoped).

16 Cf. Stuart Ford, ‘The ICC and the Security Council: How Much Support Is There For Ending Impunity?’, 26 Indiana International and Comparative Law Review 33–67, at 62–3 (arguing that the ICC is weak compared to states and that it cannot be successful without the political support of the international community).

17 See infra Part 9. Less than this would be needed during the court’s startup phase, but eventually these resources will be necessary.

18 See Amnesty International, supra note 9, at 7–11 (describing the development of the AU’s judicial bodies). See also Firew Kebede Tiba, ‘Regional International Criminal Courts: An Idea Whose Time Has Come?’, 17 Cardozo Journal of Conflict Resolution 521, at 539–545 (2016); Vincent Nmehielle, ‘‘Saddling’ the New African Regional Human Rights Court with International Criminal Jurisdiction: Innovative, Obstructive, Expedient?’, 7 African Journal of Legal Studies 742, at 12–23 (2014).

19 See Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court of Human and Peoples’ Rights, Preamble, available at https://au.int/web/en/treaties/protocol-african-charter-human-and-peoples-rights-establishment-african-court-human-and.

20 See OAU/AU Treaties, Conventions, Protocols & Charters, available at https://au.int/web/en/treaties.

21 See Constitutive Act of the African Union, art. 18(1).

22 See Protocol of the Court of Justice of the African Union, art. 12, available at https://au.int/web/en/treaties/protocol-court-justice-african-union.

23 See OAU/AU Treaties, Conventions, Protocols & Charters, available at https://au.int/web/en/treaties.

24 See Amnesty International, supra note 9, at 8.

25 See Nmehielle, supra note 18, at 9.

26 See OAU/AU Treaties, Conventions, Protocols & Charters, available at https://au.int/web/en/treaties.

27 See Protocol on the Statute of the African Court of Justice and Human Rights, art. 2, available at https://au.int/web/en/treaties/protocol-statute-african-court-justice-and-human-rights (“The African Court of Human and Peoples’ Rights … and the Court of Justice of the African Union … , are hereby merged into a single Court and established as ‘The African Court of Justice and Human Rights.’”).

28 Id. art. 9(1).

29 See List of Countries Which Have Signed, Ratified/Acceded to the Protocol on the Statute Of The African Court Of Justice And Human Rights, available at https://au.int/web/en/treaties/protocol-statute-african-court-justice-and-human-rights.

30 See Amnesty International, supra note 9, at 9.

31 See Nmehielle, supra note 18, at 18–22.

32 Id.

33 Id.

34 See Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, available at https://au.int/web/en/treaties.

35 Id. art. 11(1).

36 See List of Countries Which Have Signed, Ratified/Acceded to the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, available at https://au.int/web/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-rights.

37 But see Christopher Isike and Olusola Ogunnubi, ‘The Discordant Soft Power Tunes of South Africa’s Withdrawal from the ICC’, 44 Politikion 173–9 (2017) (suggesting that the withdrawal of African states from the ICC could speed up the process of adopting the ACJHR protocol and the Malabo protocol).

38 See Ademola Abass, ‘The Proposed International Criminal Jurisdiction for the African Court: Some Problematical Aspects’, 60 Netherlands International Law Review 27, 37–42 (2013) (noting several reasons why African states may be reluctant to ratify the Malabo Protocol); Maluwa, supra note 2, at 659 (arguing that the slow pace of ratification of treaties related to the AU human rights courts is the result of “the ambivalence of most member states toward the idea of a pan-continental judicial body empowered to stand in judgment over alleged human rights violations by these states”). But see Tiba, supra note 18, at 547 (arguing that it is a “foregone conclusion that a regional international criminal court will be up and running in Africa in the not too distant future”).

39 Original Statute of the African Court of Justice and Human Rights, arts. 16, 28.

40 Amended Statute of the African Court of Justice and Human Rights, art. 16.

41 Id. art. 17(3).

42 See Malabo Protocol, art. 2.

43 See Amended Statute of the African Court of Justice and Human Rights, art. 22A(6).

44 Id. art. 22C(2).

45 Id. art. 28A.

46 Id.

47 See Amnesty International, supra note 9, at 16–17.

48 See Amended Statute of the African Court of Justice and Human Rights, art. 28A. See also Nmehielle, supra note 18, at 29–30.

49 See Amnesty International, supra note 9, at 16–18. See also Abass, supra note 38, at 32–5.

50 See Nmehielle, supra note 18, at 23.

51 See Amnesty International, supra note 9, at 5–6.

52 Chacha Bhoke Murungu, ‘Towards a Criminal Chamber in the African Court of Human Rights’, 9 Journal of International Criminal Justice 1067, at 1081 (2011).

53 See Stuart Ford, ‘The International Criminal Court and Proximity to the Scene of the Crime: Does the Rome Statute Permit All of the ICC’s Trials to Take Place at Local or Regional Chambers?’, 43 John Marshall Law Review 715, 715–16 (2010); Murungu, supra note 53, at 1085 (2011) (“It would be good for Africa to establish a court which will be close to the African people and which might have access to victims and areas where crimes have been committed.”).

54 See Munguru, supra note 52, at 1085–6; Nmehielle, supra note 18, at 29–30.

55 See Amnesty International, supra note 9, at 5.

56 Malabo Protocol, Preamble.

57 Id.

58 See, e.g., Matiangai Sirleaf, ‘The African Justice Cascade and the Malabo Protocol’, 11 International Journal of Transitional Justice 71 (2017) (offering a guardedly optimistic evaluation of the Malabo Protocol’s future).

59 See Abass, supra note 38 (offering an essentially pessimistic evaluation of the Malabo Protocol’s future); Murungu, supra note 52, at 1082–85 (noting many obstacles to the success of the Protocol).

60 See Amnesty International, supra note 9, at 29–33 (noting concerns about whether the AU has the capacity to make the Malabo Protocol a success).

61 See supra text accompanying notes 78.

62 See supra text accompanying notes 317.

63 See Murungu, supra note 52, at 1084.

64 See Amnesty International, supra note 8, at 23; Abass, supra note 38, at 28–9; Murungu, supra note 52, at 1077–9.

65 See Amnesty International, supra note 9, at 9; Benson Chinedu Olugbuo, ‘The African Union, the United Nations Security Council and the Politicisation of International Justice in Africa’, 7 African Journal of Legal Studies 351, 352–4 (2014).

66 See Amnesty International, supra note 9, at 9. See also Nmehielle, supra note 18, at 18–22 (arguing that the AU adopted the Malabo Protocol to reassert control over investigations and prosecutions of violations of international law committed in Africa).

67 See Amnesty International, supra note 9, at 6 (noting that “[s]ome commentators argue that the proposal is an attempt by the AU to shield African heads of state and senior officials from being held to account when there is reasonable grounds to believe that they are criminally responsible for crimes under international law”).

68 For example, the Malabo Protocol references the AU’s Decision on the Abuse of the Principle of Universal Jurisdiction. See Malabo Protocol, Preamble. The AU has long been concerned with what it considers the abuse of the principle of universal jurisdiction, which seems to mean the charging of senior African government officials in non-African courts with crimes under a theory of universal jurisdiction. See Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, Assembly/AU/Dec.199(XI), dated July 1, 2008 (describing the use of universal jurisdiction to charge African official in non-African courts as endangering international law and order and a “clear violation of the sovereignty and territorial integrity” of African states). See also Nmehielle, supra note 18, at 21–2.

69 Cf. Rome Statute, art. 17(1) (noting that the ICC lacks jurisdiction in situations where a case is being investigated or prosecuted by a state unless that state is “unwilling or unable to genuinely carry out the investigation or prosecution”). While the Rome Statute refers only to states in Article 17, others have argued that this can be extended by analogy to regional organizations such that an investigation or prosecution by a regional organization would properly deprive the ICC of jurisdiction unless that investigation or prosecution was not genuine. See Murungu, supra note 52, at 1081; Nmehielle, supra note 18, at 25. Under this reading, the creation of a regional court with jurisdiction over international criminal law would be consistent with the Rome Statute’s principle of complementarity.

70 Cf. Maluwa, supra note 2, at 659 (noting that many AU member states are very ambivalent about creating a “pan-continental judicial body” that would have the power to investigate their own human rights abuses).

71 See Amnesty International, supra note 9, at 11, 26–7; Tiba, supra note 18, at 533.

72 See Amended Statute of the African Court of Justice and Human And Peoples’ Rights, art. 46A bis.

73 See Amnesty International, supra note 9, at 27 (noting that the immunity provision “promotes and strengthens the culture of impunity that is already entrenched in most African countries”); Abass, supra note 38, at 49–50; Murungu, supra note 52, at 1086–1087.

74 Cf. Nmehielle, supra note 18, at 32–5 (acknowledging that the actions of AU member states in the past have raised legitimate concerns about whether the Malabo Protocol is intended to facilitate or obstruct human rights in Africa but arguing that the AU is not monolithic and that individual states want different things out of the court). Professor Nmehielle implicitly takes the position that it is too soon to know whether the Malabo Protocol is intended to be promote or obstruct justice.

75 The AU is aware of the difficulties. It twice delayed adoption of the Malabo Protocol because of concerns about the “financial and structural implications” of the changes to the ACJHR. See Nmehielle, supra note 18, at 39–41.

76 See supra text accompanying note 15.

77 See Stuart Ford, ‘What Investigative Resources Does the International Criminal Court Need to Succeed?: A Gravity-Based Approach’, 16 Washington University Global Studies Law Review 1, 37–8 (2017).

78 Id.

79 Id. at 32.

80 Id. at 31.

81 Id. at 31–2.

82 Id. at 33.

83 Id. at 34.

84 Id. at 33 (noting that the number of people forcibly displaced in the average ICC investigation ranges from hundreds of thousands to more than a million).

85 Id. at 34.

86 Examples of extreme cruelty include mutilation, disembowelment, gang rapes and abduction into sexual slavery. Id.

87 Id. at 21–4 (arguing that the features of international crimes make them inherently more difficult to investigate than typical domestic crimes).

88 This seems to be a reasonable assumption given that a large number of the ICC’s current investigations are in Africa and the primary purpose of the Malabo Protocol is to permit the ACJHR to assert control over African situations that would otherwise fall under the jurisdiction of the ICC. As a result, the ACJHR will likely face investigations similar in scope to those the ICC has undertaken in Africa.

89 Id. at 50.

90 Id. at 51–3.

91 Id. at 52.

92 Id. While the international criminal law component of the ACJHR will presumably be based in Arusha, Tanzania, it will be expected to carry out investigations anywhere in the AU. As a result, it will probably (like the ICC) need to establish field offices in countries where it is conducting investigations.

93 Id. at 51.

94 Office of the Prosecutor, Report of the Court on the Basic Size of the Office of the Prosecutor, Doc. No. ICC-ASP/14/21, dated Aug. 7, 2015 (hereafter “OTP Basic Size Document”) at 4.

95 Id.

96 See Stuart Ford, ‘Complexity and Efficiency at International Criminal Courts’, 29 Emory International Law Review 1, 28 (2014).

97 Id.

98 Id. at 3–4.

99 See generally Stuart Ford, ‘The Complexity of International Criminal Trials is Necessary’, 48 George Washington International Law Review 151 (2015).

100 Id. at 172.

101 Id.at 173.

102 Id. at 172–3.

103 Id. at 181–2.

104 Id. at 182–3.

105 Id. See also id. at 184–200 (arguing that there are few practical ways to reduce the complexity of international trials without sacrificing their most important goals).

106 See OTP Basic Size Document at 51.

107 Id. at 52–5.

108 Id. at 54.

109 See supra Section 6.

110 See OTP Basic Size Document at 13.

111 Id. at 57.

112 See Amended Statute of the African Court of Justice and Human And Peoples’ Rights, art. 16.

113 The ACJHR as a whole has sixteen judges, but it appears that five are assigned to the General Affairs Section and five to the Human and Peoples’ Rights Section, leaving six to staff the International Criminal Law Section. See Amended Statute of the African Court of Justice and Human And Peoples’ Rights, art. 6.

114 See Amnesty International, supra note 9, at 26.

115 Id.

116 See supra text accompanying notes 1101.

117 At least in 2012, the AU was taking the position that there would “be NO addition of judges beyond the sixteen” provided in the draft protocol. See African Union, Report on the Financial and Structural Implications of Extending the Jurisdiction of the African Court of Justice and Human Rights to Encompass International Crimes, Doc. No. EX.CL/773(XXII) Annex 2 at 2 (copy on file with author). Having said that, the same report also acknowledges that there might be a need to be “flexible” about the number of judges in the future. Id.

118 See Proposed Programme Budget for 2017 of the International Criminal Court, Doc. No. ICC/ASP/15/10, dated Aug. 17, 2016, at 144.

119 Id. at 40 (noting that the ICC’s Appeals Chamber needed ten legal personnel to support the five judges of the Appeals Chamber; a ratio of two legal officers per judge).

120 Id. at 37 (noting that the ICC’s Pre-Trial Chamber needed twelve legal personnel to support the six judges of the Pre-Trial Chamber; a ratio of two legal officers per judge).

121 See Proposed Programme Budget for 2017 of the International Criminal Court, Doc. No. ICC/ASP/15/10, dated Aug. 17, 2016, at 151.

122 Id.

123 Id. at 34.

124 See OTP Basic Size Document at 17.

125 See Proposed Programme Budget for 2017 of the International Criminal Court, Doc. No. ICC/ASP/15/10, dated Aug. 17, 2016, at 56–7.

126 See OTP Basic Size Document at 5 (noting that the Services Section would have 81 personnel, while the Investigations Division would have 255 and the Prosecutions Division would have 142).

127 See Amended Statute of the African Court of Justice and Human And Peoples’ Rights, art. 22B(9).

128 Id.

129 Id. art. 22C.

130 See Proposed Programme Budget for 2017 of the International Criminal Court, Doc. No. ICC/ASP/15/10, dated August 17, 2016, at 158.

131 Id. at 154.

132 Id. at 163 (noting that the Victim and Witnesses Section provides “protective measures and security arrangements, counselling and other appropriate assistance” for victims and witnesses).

133 Id.

134 See Amended Statute of the African Court of Justice and Human And Peoples’ Rights, art. 22B(5) (noting that the Registry “shall be responsible for the non-judicial aspects and servicing of the Court”). See also id. art. 22B(7) (noting that the Registrar “shall be assisted by such other staff as may be necessary for the effective and efficient performance of the functions of the Registry”).

135 This office provides advice on human resources issues, develops human resources policies, helps manage the staff, participates in recruitment and placement, and deals with issues like salaries, benefits, and pensions. See Proposed Programme Budget for 2017 of the International Criminal Court, Doc. No. ICC/ASP/15/10, dated Aug. 17, 2016, at 144. There are 25 total staff in the Human Resources Section. Id.

136 This office prepares and oversees implementation of the budget. Id. at 145. There are six staff members in the Budget Section. Id.

137 This office oversees payments to vendors as well as payment of travel expenses. It also monitors compliance with the budget and prepares the Court’s financial statements. Id. at 146. There are 17 personnel in the Finance Section.

138 This office provides security for the Court facilities and its personnel. Id. at 149. There are 72 personnel in the Security and Safety Section. Id.

139 This office provides building maintenance, utilities services and cleaning services, among other things. Id. at 147. There are 46 staff members in the General Services Section. Id. at 148.

140 These are not the resources that the court would need in its first year of operation. Personnel could be phased in over time as they are needed to lower the startup costs. For example, the court probably will not need two investigative teams in its first year and it will probably not need trial teams until the first investigations are completed, which may take two or three years. Similarly, it will not need to fully staff the Trial and Appeal Chambers until the initial investigations have been completed and the first case is ready for trial. But it will need those resources eventually.

141 The Prosecutor at the ICC initially tried lean investigations, but those resulted in weak cases and she was forced to switch back to more thorough investigations. See Ford, supra note 77, at 66–7.

142 While it may turn out that some in-house interpretation/translation service is required, the large number of languages that will likely be needed and the intermittent demand for those languages probably makes it cheaper to contract for interpretation and translation as a service. Cf. OTP Basic Size Document, at 73 (noting that at the ICC the “requirement for language services is often volatile on account of uncertainty around, amongst other things, … how many and which languages will be encountered in any given situation country, especially regarding insider witnesses and victims whose evidence may need transcribing, and interpreting and translating into a working language and also regarding the accused, who are entitled to translations of evidence in a language they fully understand” and that, as a result, most of this work is done by freelancers rather than permanent staff).

143 See Proposed Programme Budget for 2017 of the International Criminal Court, Doc. No. ICC/ASP/15/10, dated Aug. 17, 2016, at 27 (noting that the ICC is budgeting for 980 permanent posts and 179 GTA positions in 2017).

144 This number was arrived at by taking the ICC’s cost in 2017 (150 million euros for 1,160 positions) and scaling it down to account for the 370 expected positions at the ACJHR. Id. (noting that the ICC budget for 2017 is 150 million euros). Cf. Nmehielle, supra note 18, at 35 (noting that “effectively establishing and sustaining such a court would run into hundreds of millions of dollars”).

145 Id. at 35–6.

146 See supra note 76.

147 See African Union, Report of the Meeting of Ministers of Justice and/or Attorneys General on Legal Matters, dated 14 and 15 May 2012 at 5–7 (copy on file with author).

148 There may be more recent reports that provide updated estimates on the resource requirements of the ACJHR, but if so they do not appear to be publicly available.

149 Id. at 7.

150 Id.

151 See Report on the Financial and Structural Implications of Extending the Jurisdiction of the African Court of Justice and Human Rights to Encompass International Crimes, supra note 117, at 4.

152 See supra Section 9.

153 See supra Sections 6, 8.

154 See SCSL, Eighth Annual Report of the President of the Special Court for Sierra Leone, June 2010 to May2011, at 11–17.

155 Id. at 22–3.

156 Id. at 14–17.

157 See supra text accompanying notes 659.

158 See SCSL, Fifth Annual Report of the President of the Special Court for Sierra Leone, June 2007–May 2008, at 13–18.

159 Id. at 22 (noting that the Appeals Chamber rendered judgments in two appeals).

160 Id. at 28–30.

161 Id. at 44.

162 See supra Section 9.

163 Report on the Financial and Structural Implications of Extending the Jurisdiction of the African Court of Justice and Human Rights to Encompass International Crimes, supra note 117, at 5–7.

164 The AU report is somewhat ambiguous, but it appears that the column titled “Number in ACJHPR” represents the projected staffing of the expanded ACJHR. Id.

165 See supra text accompanying notes 1089 (noting that ICC trial teams are comprised of about 15 personnel including lawyers, legal assistants and case managers supported by a small number of investigators).

166 See supra text accompanying note 112.

167 See supra Parts 5–6.

168 See supra text accompanying notes 913.

169 See supra text accompanying notes 1303.

170 See supra text accompanying notes 11921.

171 See supra text accompanying notes 1213 (estimating that the ACJHR will need about 30 personnel in its court management section).

172 Report on the Financial and Structural Implications of Extending the Jurisdiction of the African Court of Justice and Human Rights to Encompass International Crimes, supra note 117, at 5 (describing the staffing proposal as a “rough tabulation of minimum staff requirements at the outset”).

173 See infra Section 4.

174 See supra text accompanying notes 3133, 648.

175 See Nmehielle, supra note 18, at 36–7 (suggesting that if the ACJHR receives sufficient funding, capable staff, and the political support of the AU, it can be successful).

39 Civil Society and International Criminal Justice in Africa Perspectives on the Proposed African Court of Justice and Human Rights

Netsanet Belay and Japhet Biegon
1. Introduction

Civil Society Organizations (CSOs) have played and continue to play a critical role in the advancement of the international criminal justice system. One of the hallmark of CSOs influence is the establishment of the International Criminal Court (ICC), regarded by some analysts as a creation of civil society.1 Through the non-governmental organization (NGO), the Coalition for an International Criminal Court (CICC), CSOs influenced both the content of the Statute (Rome Statute) and the design of the ICC.2 Following its establishment, CSOs have been actively involved in the implementation of the Rome Statute, and in particular, in bridging the gap between the ICC and local communities,3 pushing member states through advocacy and litigation to respect and enforce the Statute,4 and documenting evidence of international crimes.5

Beyond interaction in global and domestic spheres, civil society’s engagement on international criminal law and justice is increasingly becoming prominent regionally, especially in Africa, where the African Union (AU) has become a critical actor in the field. In the last few years, the AU Assembly – composed of African heads of state and government – has adopted numerous resolutions and policy decisions on the application of the Rome Statute in Africa as well as on the ICC’s intervention in the continent.6 Perhaps more importantly, and partly in reaction to what the AU and some member states see as an unfair and biased global international criminal justice system,7 the AU has sought to establish its own regional criminal justice system.

In June 2014, the AU Assembly, meeting in Malabo, Equatorial Guinea, adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol). The Malabo Protocol extends the jurisdiction of the yet-to-be established African Court of Justice and Human Rights (ACJHR) to cover crimes under international law and transnational crimes. Through the Malabo Protocol, the AU seeks to establish a regional criminal court, operating in a manner akin to the ICC but within a narrowly defined geographical scope. The regional court will have jurisdiction over a long list of crimes: genocide, crimes against humanity, war crimes, unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources, and aggression. Undoubtedly, the AU’s decision to establish a regional criminal court is bound to have far-reaching legal and institutional implications for various stakeholders involved in the pursuit of international criminal justice in Africa, including the AU, states, and civil society.

This chapter examines the scope of possible interaction between civil society and the future regional criminal court (if it will be established at all) and suggests avenues for civil society engagement in addressing these concerns in order to strengthen the court. In order to understand and contextualize this possible interaction, the first half of the chapter traces the level of participation of civil society in the drafting of the Malabo Protocol. The second half of the chapter is devoted to a discussion of two key areas in which civil society organizations will have to engage in order to contribute toward the strengthening of the future court. The first one relates to the challenge of strengthening the human rights mandate of the court, including the issue of restricted access to civil society as a result of successive amendments to the Court Protocol. The second section focuses on issues raised by civil society with respect to legal standards, competing obligations and challenges of domestication that may arise upon operationalization of the Court. Much of the analysis on the legal and institutional implications of the Malabo Protocol discussed in this chapter is based on a report published by Amnesty International in January 2016.8

2. Civil Society and The Drafting of The Malabo Protocol: A Story of Exclusion

Civil society has traditionally played a relatively active role in the development of AU human rights treaties and normative instruments. Two particular examples of civil society involvement in the formulation of human rights treaties in Africa stand out. First, civil society was instrumental in the initiation and formulation of the Protocol on the Establishment of the African Court on Human and Peoples’ Rights. In particular, the International Commission of Jurists (ICJ), working in conjunction with other NGOs, produced the first draft of the Protocol. It is this draft produced by ICJ that formed the basis of a meeting of government experts held in 1995.9 Second, the Protocol on the Rights of Women in Africa (Maputo Protocol) is regarded as an initiative of civil society. Its origin can be traced back to a 1995 joint meeting between the African Commission on Human and Peoples’ Rights (African Commission) and the Women in Law and Development in Africa (WILDAF), a regional NGO. Banda has addressed how input from civil society was received throughout the various stages of drafting of the Maputo Protocol.10 In recent years, civil society has been engaged in the formulation of the Protocol on the Rights of Older Persons in Africa, Protocol on the Rights of Persons with Disabilities in Africa, AU Draft Transitional Justice Policy Framework, and the four General Comments thus far adopted by of the African Commission.

In what is clearly a retrogression, the process that led to the drafting and adoption of the Malabo Protocol did not include much scope for public debate or civil society consultation. Following the 2009 decision of the AU Assembly, where it requested the AU Commission, in consultation with the African Commission and the African Court of Human and Peoples’ Rights (African Human Rights Court), to examine the implications of the ACJHR being empowered to try international crimes, the secretariat of the Pan African Lawyers Union (PALU) was contracted by the AU Commission in 2010 to study and provide recommendations on a legal instrument which would amend the Protocol on the ACJHR. PALU submitted its reports to the AU Commission in June and August 2010. Validation workshops were held in South Africa in August and November 2010 to discuss the draft prepared by PALU, but these discussions involved only representatives of the AU organs and Regional Economic Communities (RECs). There is no recorded evidence of any regional or national consultations with civil society up until the Protocol was adopted by the AU Assembly in 2014. As such, the drafting process has been described as one that lacked transparency and full participation of relevant stakeholders.11 Given their exclusion in the process of drafting of the Malabo Protocol, civil society had no formal avenues of engagement. They understandably resorted to raising concerns about proposed contents of the Protocol in press releases and open letters. In May 2012, a total of 47 African and international NGOs with a presence in Africa wrote a joint open letter to ministers of justice and attorneys general of African state parties to the Rome Statute asking them to carefully study and address a number of issues of concern arising from the proposal to expand the jurisdiction of the ACJHR to cover crimes under international law as well as transnational crimes.12 In June 2015, after an immunity clause was introduced into the text that would eventually become the Malabo Protocol, several NGOs issued press statements calling for the immunity clause to be deleted.13 From the record of the meetings held by government experts and ministers of foreign affairs to consider initial drafts of the Malabo Protocol, there is no indication that concerns raised by civil society were taken into account.

It is important to note that the failure to consult civil society in the drafting of the Malabo Protocol occurred against the background of an increasingly shrinking space for civil society involvement in the activities of the AU. It is particularly instructive that at the June 2014 summit in Malabo, no invitation was extended to civil society to participate in the session. Instead, the AU Assembly commenced a process that would eventually lead to the exclusion of civil society and developments partners in its June/July sessions or summits.14 In June 2015, the AU Assembly adopted a decision that formalized the exclusion.15 This decision and the emerging practice raises critical questions about the commitment of the AU to abide by its own objectives and principles as enshrined under the Constitutive Act. The Constitutive Act requires the AU to function in a manner that ensures “participation of the African peoples in the activities of the Union.”16 Moreover, a key objective of the AU is to “promote democratic principles and institutions, popular participation and good governance.”17 The decision to exclude CSOs from the June/July summits is undoubtedly incompatible with these stated principles. It worsens an already worrying situation. As Moyo correctly points out:

Although the AU and its organs provide for civil society involvement in their activities, very little engagement actually takes place. There is very little that the AU and its organs have done to make contact with citizens and CSOs, except for a few departments like the Gender Directorate. AU institutions set up for civil society participation remain weak, and at times they are unwilling to involve civil society.18

Outside of the AU summits, the formal and structured channel for civil society engagement with the AU is the Economic, Social and Cultural Council (ECOSOCC). One of its critical functions is to “promote the participation of African civil society in the implementation of the policies and programmes of the Union.”19 ECOSOCC is composed of 150 CSOs drawn from AU member states and the African diaspora. However, criteria for eligibility as a member of ECOSOCC is restrictive. In particular, in order to qualify for membership in ECOSOCC, a CSO must show that at least 50% of its basic resources are “derived from contributions of the members of the organization.”20 Given that the majority of CSOs in Africa depend on donor funding, only a handful of organizations across the continent meet the “50% requirement.” Thus, although the rule was in theory intended to exclude “foreign” or “international organizations”, in practice it excludes NGOs founded in and working exclusively in Africa as well.21 That the AU requires CSOs to meet this criterion is ironic as the AU itself depends on donors, mostly European countries, to fund more than 70% of its budget.22

While access to ECOSOCC is restrictive, civil society have long enjoyed a cordial and dynamic relationship with the African Commission.23 This relationship has allowed CSOs to make immense contributions to the work of the African Commission, including in the area of standard-setting. As Viljoen observes, CSOs have been “crucial in the growth and consolidation of the Commission.”24 Lately, however, the AU Executive Council has issued directives requiring the African Commission to withdraw the observer status granted to specific NGOs. In particular, the Executive Council in June 2015 directed the African Commission to take into account in its work “the fundamental African values, identity and good traditions”, and in this context, to withdraw the observer status granted to “NGOs who may attempt to impose values contrary to the African values.”25 The Executive Council singled out the Coalition of African Lesbians (CAL), an NGO registered in South Africa but with a working presence in several countries on the continent, and asked the African Commission to withdraw its observer status.26 The Executive Council also asked the Commission to review its criteria for granting observer status to NGOs. In January 2016, it went further and asked the Commission to review the representation of “non-African individuals and groups” before it.27 These directives raise questions about the independence and autonomy of the African Commission from AU’s political organs.28 More importantly, the directives signify a trend toward limiting civil society access to the AU in general and specifically to its human rights institutions.

3. Challenges in Strengthening of The Current Human Rights Court and The Future Human Rights Mandate
A. Even More Restricted Access to Civil Society

The expansion of the mandate of the ACJHR to include international crimes has impacted negatively on the ability of individuals and CSOs to access the ACJHR. Presently, the African Human Rights Court “may entitle relevant Non-Governmental Organizations (NGOs) with observer status before the [African] Commission, and individuals to institute cases directly before it”, and if the state against which the case is lodged has made a declaration allowing NGOs and individuals to file cases against it.29 This provision has been criticized for its restrictive approach to limiting cases from NGOs and individuals, and which in part explains the rather limited docket so far of the African Human Rights Court.

The Amended ACJHR Statute is even more restrictive. It allows only “African individuals or African Non-governmental organizations with observer status with the African Union or its organs or institutions’ to submit cases or applications before the ACJHR.30 “African NGOs” are defined in the Protocol as “Non-governmental Organizations at the sub-regional, regional or inter-African levels as well as those in the Diaspora as may be defined by the Executive Council.”31 Whether international NGOs would fall within this definition is debatable and concerning. “African individuals” are not defined in the preamble. In addition to potentially preventing foreign nationals and NGOs from accessing the Court, this personal jurisdiction or standing issue also risks having implications on the material jurisdiction of the Court in cases raising questions regarding extra-territorial obligations and violations.

The Amended ACJHR Statute further limits the range of actors who may request an advisory opinion from the ACJHR. At present, in addition to state parties and AU organs and institutions, “any African organization recognized by the OAU” may request an advisory opinion from the African Human Rights Court. “Any African organization recognised by the OAU” has been interpreted to include NGOs with observer status with the African Commission and several such NGOs have requested for an advisory opinion from the African Human Rights Court.32 Article 53 of the Amended ACJHR Statute provides that:

The Court may give an advisory opinion on any legal question at the request of the Assembly, the Parliament, the Executive Council, the Peace and Security Council, the Economic, Social and Cultural Council (ECOSOCC), the Financial Institutions or any other organ of the Union as may be authorized by the Assembly.

In essence, only AU organs and institutions will be allowed to seek for an advisory opinion under the Malabo Protocol. NGOs have lost the access they enjoyed before the African Human Rights Court. With the capacity of CSOs to request for advisory opinions taken away, it is likely that the advisory role of the African Court will go into disuse and ultimately be rendered redundant. AU organs and institutions have not shown an interest and appetite to request advisory opinions from the African Court. Out of the 13 advisory requests received by the African Court as of this writing,33 only one had been presented by an AU institution. The bulk of the rest were submitted by NGOs.

B. Implications on the Existing Court/Human Rights Mandate of The New Court

One of the concerns expressed by civil society, including in its 2012 joint letter,34 is that the Malabo Protocol and the decision to expand the jurisdiction of the ACJHR to cover international crimes will impact on the operations and future of the African Human Rights Court.

First, the Amended ACJHR Statute reduces the number of judges who will be responsible for human rights issues at the ACJHR. The Human Rights Court has 11 judges at present. The Human Rights Section of the ACJHR will have only five judges with specific expertise in human rights. This will significantly and adversely impact the capacity of the Human Rights Section to expeditiously adjudicate human rights cases.

Second, although the Preamble to the Malabo Protocol notes “the steady growth of the African Court on Human and Peoples’ Rights and the contribution it has made in protecting human and peoples’ rights”,35 the Protocol does not provide for the transfer of judges and the registrar of the African Human Rights Court to the ACJHR. The Protocol provides that the terms and appointment of the current judges and registrar of the African Human Rights Court will terminate on the coming into force of the Malabo Protocol, although they will remain in office until the new judges are sworn in.36 The Protocol also provides that the staff of the African Human Rights Court will be absorbed into the ACJHR but only for the remainder of their subsisting contracts.37 This runs the risk of losing the institutional history, experience and expertise of the judges in the new Court and does not allow for continuity. It will be important to allow for some continuity because the new Court will be required to pick up the cases pending before the African Human Rights Court.38

On a positive note, the Malabo Protocol provides that the seat of the ACJHR would be the seat of the existing African Human Rights Court (Arusha, Tanzania).39 This has the advantage of increasing the ability for the African Human Rights Court to leave a legacy in terms of human rights, as documentation will be available to the ACJHR. This is important because the potential exists that the legacy of the African Human Rights Court and any experience it has attained will be lost in the process of transition to a Court with a broader mandate.

C. Implications and Challenges for the Civil Society Campaign on Universal Ratification of the Protocol on African Court on Human and Peoples’ Rights

The Malabo Protocol may also delay, or actually prevent, any new ratification of the African Human Rights Court Statute. A total of 25 African states have not ratified the African Protocol on the Establishment of an African Court on Human and Peoples’ Rights.40 A group of CSOs, under the umbrella of the African Coalition for an Effective African Court, have been engaged in a campaign for universal ratification of the Protocol.41 However, with the expansion of the jurisdiction of the ACJHR to cover international crimes, those states which would have considered ratifying the African Human Rights Court Statute may reconsider their position. During the 2012 Meeting of Ministers of Justice and Attorneys General, state representatives proposed that “States should be allowed to choose which instrument or section of the Court to belong to”,42 an indication that some states were not willing to be party to a Court with an expanded jurisdiction covering international crimes. This proposal was not taken on board as the Legal Counsel explained that allowing states to pick which section of the Court to belong to was not advisable and would result in “many technical and practical difficulties based on the proposed number and deployment of judges within the Court.”43 Thus, in the end, the Malabo Protocol provides states with “an all-or-nothing option.”44 As a commentator observed when the first draft of the Amended ACJHR Protocol and Statute was adopted in 2012: “When it is faced with an all-or-nothing choice, a state that would be attuned to the protection of human rights or its obligations under the ICC Statute, may decide not to ratify the Amending Court Protocol at all, due to its reticence to accept a court that deals with international criminal justice issues.”45

4. Legal Standards, Competing Obligations and Challenges of Domestication

Throughout the drafting process and after the ACJHR Statute was adopted, civil society organizations raised some key concerns about certain aspects of the Protocol, including the immunity provision, the definition of several offenses under the Statute which might have human rights implications, including the crimes of unconstitutional change of government and terrorism, as well as concerns about domestication of the Statute in light of states’ other obligations under international and regional treaties, particularly for AU member states who are also parties to the Rome Statute. The following section therefore focuses on issues raised by civil society with respect to legal standards, competing obligations and challenges of domestication that may arise upon operationalization of the Court, and suggests avenues for civil society engagement in addressing these concerns in order to strengthen the court.

A. Immunity

Civil society groups have been very vocal in opposing the immunity clause, which is considered to be the most controversial provision in the Amended ACJHR Statute. The relevant provision reads as follows46:

No charges shall be commenced or continued before the Court against any serving African Union 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.

This provision was approved despite the fact that during discussions, delegations at the Ministerial Meeting raised concerns regarding its conformity with international law, domestic laws of Member States and jurisprudence.47 Delegations also underlined the challenges inherent in widening immunities, the lack of a precise definition of “senior state official” and the difficulty in providing an exhaustive list of persons who should be included in the category of senior state officials.48 CSOs have also repeatedly raised concerns about this clause in the Malabo Protocol,49 including in a joint letter signed by 141 organizations to Ministers of Justice and Attorneys General of African Union member states, published in May 2015.50 In this letter, for example, Timothy Mtambo, Executive Director at Malawi’s Centre for Human Rights and Rehabilitation, raised the concern that “Granting immunity to sitting officials is retrogressive, and risks giving leaders license to commit crimes. Immunity also risks encouraging those accused of the crimes to cling to their positions to avoid facing the law.”51

Under general customary international law serving Heads of State and Government and Senior State Officials enjoy immunity from criminal jurisdiction of a third state. However, there are exceptions to this general rule including that Heads of State and Government and Senior State Officials do not necessarily enjoy immunity from criminal proceedings initiated before international criminal courts such as the ACJHR. In this regard, article 27(1) of the Rome Statute) provides that:

This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

Article 27(2) further provides that:

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Other international criminal or hybrid courts have not provided immunity for heads of state or senior officials and this is reflected in their Statutes. The Special Court for Sierra Leone, in relation to Charles Taylor, for example, held that “[T]he principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”52

In addition, the practice of the ACJHR will also deviate from the established practice of international criminal courts including the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICTR.

The immunity clause will have serious implications for the fight against impunity for international crimes in Africa and for the legitimacy and credibility of the ACJHR. The clause will effectively prevent the investigation and prosecution of serving Heads of State and Government who use their position or authority to order, plan, finance or otherwise mastermind crimes against humanity, war crimes or acts of genocide. Experience has shown that on the African continent, as elsewhere, it is those in positions of power who typically abuse their authority and state resources to commit international crimes. The immunity clause essentially promotes and strengthens the culture of impunity that is already entrenched in most African countries. It rolls back the gains that have already been realized in the fight against impunity in some African countries.

It is also instructive that the immunity clause is at odds with and incompatible with the objectives and organizing principles of the AU. A key objective of the AU is the promotion and protection of human rights as contained in the African Charter and other human rights instruments. Article 4(h) of the AU Constitutive Act grants the AU the right to intervene if war crimes, crimes against humanity and acts of genocide are being committed in a member state. Article 4(m) requires the AU to respect human rights while article 4(o) requires it to ensure the sanctity of human life and to reject impunity. The immunity clause undermines these objectives and principles.

For the ACJHR, the immunity clause will pose serious risks to its integrity, legitimacy and credibility, issues of concern to several CSOs. The court will lack the capacity to address the scourge of war crimes, crimes against humanity and genocide that have afflicted the continent for decades now. As such, and contrary to what is stated in the preamble of the Malabo Protocol, the court will neither “complement national, regional and continental bodies and institutions in preventing serious and massive violations of human and peoples’ rights” nor will it ensure accountability for these violations wherever they occur. Ultimately, the court will struggle to enjoy or harness the confidence and support of the African population and especially of the victims of gross violations of human rights.

As the strongly voiced concerns of CSOs concerning this provision and its implications on impunity in Africa were disregarded during the initial drafting process, the Statute should therefore be re-opened for amendment of Article 46Abis to ensure it complies with international standards. Civil society organizations should engage in sensitization activities regarding this aspect of the Protocol and continue to advocate that states either amend this provision or enter reservations with regards to this provision in the event that it is not amended.

B. Vaguely Defined Crimes and the Challenges of Ensuring Respect for Human Rights Standards

CSOs have also voiced concerns about the implications of vague/broadly defined crimes in the ACJHR Statute, and in particular, with respect to the crimes of terrorism and unconstitutional change of government.

The Malabo Protocol contains an extensive and ambitious list of crimes. Arguably, the list covers areas or crimes which have particular relevance to the African continent. However, some crimes included under the jurisdiction of the ACJHR are yet-to-be well articulated and established in international law, prominent among which is the crime of unconstitutional change of government. Unconstitutional change of government is a phenomenon that is considered as “one of the essential causes of insecurity, instability and violent conflict in Africa.”53

Since 1999, the AU has adopted a number of decisions and declarations opposing unconstitutional change of government,54 which eventually culminated in the adoption of the African Charter on Democracy, Elections and Governance (“ACDEG”) in 2007 and its entry into force in 2012. The ACDEG provides a definition of unconstitutional change of government and provides for several punitive measures including sanctions, and trial by the “competent court of the Union.”55 The genesis of the crime of unconstitutional change of government was thus inherently political. However, while it is one thing for unconstitutional changes of government to be opposed by the AU at the political level, such phenomenon has not been widely prosecuted as a crime at the international level and it remains to be seen what effect the criminalization of this crime within the Malabo Protocol will have regionally.

Moreover, the definition of the crime of unconstitutional change of government was contentious throughout the drafting process. At the center of this controversy was whether to include popular uprising as a form of unconstitutional change of government. The concern of including popular uprising as constituting a crime of unconstitutional change of government was that this would result in criminalizing protest. In the end the issue of “popular uprising” was deleted from the definition adopted in Article 28E of the Malabo Protocol, clearly a positive development. However, an earlier draft of Article 28E had reportedly included a specific exception to the crime of unconstitutional change of government in the case of peaceful protests – proving that any act of a sovereign people peacefully exercising their inherent right which results in a change of government shall not constitute an offense under this article. It is unfortunate that such an exception was not retained in the final ACJHR Statute, as this would be a clearer and more explicit limitation on this crime in conformity with human rights obligations, including the rights of freedom of expression, association and assembly.56

Such an exception would have been particularly welcome given the broad formulation of the crime in Article 28E, which as currently drafted, raises serious concerns as to compliance with the principle of legality and may criminalize conduct constituting peaceful protest. For example, while a coup d’état against a democratically elected government is criminalized there is no definition of a “coup d’état” provided in the Statute nor specification that only violent coup d’états can be criminalized.57 Consequently, while “popular uprising” is not explicitly criminalized, the crime of unconstitutional change of government under Article 28E is sufficiently broadly drafted that it still appears to leave open the possibility that peaceful protests that result in a change in government may be criminalized, such as for example, the Arab Spring protests that ultimately led to a changes of government in several Arab states.

As some commentators have indicated, this is to be contrasted with Article 28G on terrorism which contains an exception in the case of a “struggle waged by peoples according to the principles of international law for their liberation or self-determination.” As argued by Du Plessis, the ACJHR Statute thus allows for such a struggle even when it results in death or serious injury (as per the definition of terrorism in this Article), but potentially criminalizes peaceful protests under the crime of “unconstitutional change of government.”58 It is therefore difficult to reconcile these two provisions.

As argued by Du Plessis, it is also difficult to see how Article 28E can be reconciled with the immunity provision in Article 46Abis, as it would seem that many of the crimes listed in Article 28E could only be committed by heads of state or other senior state officials. The immunity provision renders the crime of “unconstitutional change of government” inoperative with respect to the majority of those who might in fact be prosecuted for it.59

Amnesty International and CSOs have also been particularly concerned about the definition of terrorism as adopted in Article 28G of the Amended ACJHR Statute.60 There is no agreed definition of terrorism under international law. Definition of terrorism in regional instruments vary greatly, and Amnesty International has frequently criticized these definitions, including the definition of terrorism in the OAU Convention on the Prevention and Combating of Terrorism, from which the definition in Article 28G is largely derived, for being vague and overly broad, thus undermining the principle of legality. Amnesty International’s research also demonstrates that many governments across the world invoke broad definitions of terrorism in order to repress political opposition, target human rights defenders, and harass and intimidate “suspect” religious and/or ethnic groups, and clamp down on legitimate exercise of freedom of expression, association, assembly and other human rights. The definition in the Malabo Protocol, may be used for similar purposes as it is overly broad.

For example, Article 28G provides that acts which may cause “damage to public or private property, natural resources, environmental or cultural heritage” can be criminalized as terrorist acts, without specifying, that such damage must be “serious” or “substantial”, as does for example the UN Draft Comprehensive Terrorism Convention, the African Model Anti-Terrorism Law or in several of the international counter-terrorism conventions.61 Nor are terms such as “property”, “natural resources” or “environmental or cultural heritage” defined. Similarly, the article criminalizes “disruption to public services” without specifying that this must be a “serious” disruption. As Saul indicates in his Chapter on Terrorism in this volume, Article 28G further provides that any act which is a “violation of the laws of the African Union or a regional economic community recognized by the African Union”, without specifying that these must be criminal laws, with the consequence that violation of many regulatory. laws might be criminalized under this provision. Relatively minor acts could therefore constitute terrorist acts under Article 28G, including those which might result from peaceful protest. As Saul indicates, this is particularly worrying as there is also no “peaceful protest” exception for such acts (as there is in the African Model Anti-Terrorism Law).62

Moreover, while incitement is listed as a mode of liability, it is not defined or limited in any way in Article 28G (or elsewhere in the Statute),63 whereas the Special Rapporteur on Human Rights and Terrorism has indicated that in order to limit infringements upon freedom of expression, incitement should only be criminalized if it “causes a danger that one or more such offenses may be committed.”64

This challenge is compounded by the fact that Article 28G(A) partly defines the crime in question by referring to an open-ended list of offenses contained in a series of international, regional and domestic legal frameworks, including where such offenses are themselves ill or vaguely defined, thus adding to the confusion and likely overbroad nature of the crime and its arbitrary application. This raises serious concerns as to compliance with the principle of legality, a core general principle of law, enshrined, inter alia, in Article 15 of the International Covenant on Civil and Political Rights (ICCPR), which requires laws to be clear and accessible and for their application in practice to be sufficiently foreseeable, and with regards to criminalization, requires that the law must classify and describe offenses in precise and unambiguous language that narrowly defines the punishable behavior.65

Article 28G(B) therefore prevents individuals from ascertaining with sufficient certainty which conduct could constitute a criminal offense. As such, it raises significant concerns, including with regard to the principle of legality, and paves the way for arbitrary application in practice.

Engagement with civil society throughout the process of drafting the provisions on unconstitutional change of government and terrorism would likely have helped to make them stronger, less broad, and less prone to being used to criminalize peaceful protest. The ACJHR Statute should therefore be re-opened for input and amendments, including by civil society into these and other problematically defined crimes.

C. Implications on Domestic Legal Standards, Competing Obligations, and Harmonization of Laws

States may face significant difficulties in domesticating the Statute of the ACJHR in light of competing obligations under international law, as well as in harmonizing currently existing domestic laws with the provisions of the Statute. In addition to specific issues in relation to conflicting obligations under the Rome Statute and the ACJHR with which states who are already party to the Rome Statute will have to contend (which are discussed more fully below), states may also face conflicting obligations if they are also parties, for example, to the 19 international counter-terrorism conventions, the United Nations Convention on Organised Crime and/or various other international instruments relating to drug trafficking, migrant smuggling and trafficking in persons, as well as regional treaties dealing with these crimes.

In the case of terrorism for example, Article 28C contains the controversial provision on “struggles for self-determination”, derived from the OAU Convention on the Prevention and Combating of Terrorism, which provides that acts committed during struggles for self-determination should not be considered to be terrorist acts. There is no such exclusion under any of international counter-terrorism instruments. Therefore, as Saul indicates in his Chapter on terrorism in this volume, states would be subject to conflicting obligations because while they would have the obligation to criminalize these acts under international counter-terrorism treaties, they would be obliged in the domestic implementation of the ACJHR Statute to include this exception.66

Even where there are no competing obligations, a substantial amount of drafting and legislative work may be required within states to bring domestic laws in line with the Statute of the ACJHR and other international instruments to which they are party.

It is therefore critical for civil society organizations to engage in a process of sensitizing governments of the implications of ratifying the Malabo Protocol on domestic legal standards and on the difficulties of reconciling their obligations under the ACJHR with their obligations under other international and regional instruments.

D. Conflicts with Obligation of Member States to Rome Statute

CSOs have also raised concerns that the establishment of an African Court with criminal jurisdiction may cause difficulties for states who are also party to the Rome Statute. Of the 55 member states comprising the AU, 33 are also state parties to the ICC. Therefore, the expansion of the jurisdiction of ACJHR to cover international crimes will likely have a number of consequences on those AU member states which would be at once have obligations toward the ACJHR and the ICC.

It is noteworthy that the Malabo Protocol contains no provisions detailing the ACJHR’s relationship with the ICC, or at least how member states must deal with competing obligations which may arise in relation to the ACJHR. The Rome Statute does have certain provisions, regarding competing obligations, as they relate to cooperation with the ICC, contained in Articles 90 and 98. However, Article 90, which deals with competing requests for the surrender of a person from another state, does not provide for how a state party should deal with a competing request for surrender from another international court. Article 97 of the Rome Statute also provides for a consultation procedure which a state party must undertake if it identifies problems which may impede the execution of a cooperation request. Both the ICC and the ACJHR are creations of treaties and as such, neither has prima facie primacy over the other. However, it is clear that with the creation of the International Criminal Law Section within the ACJHR, those states which are party to both treaties will encounter the issues of overlapping jurisdictions and competing obligations owed to both the ACJHR and the ICC. In this scenario, the lack of discussion in the more recent Malabo Protocol on competing obligations is striking.

E. Overlapping Jurisdiction and Competing Obligations

It is clear that, in relation to jurisdiction and particularly the crimes which they will prosecute, the ICC and the ACJHR overlap on a number of crimes. This may lead to competing and overlapping obligations on member states, for example, in the event that the ACJHR and the ICC indict the same person and order his or her surrender. This may lead to state parties to both the Rome Statute and the Malabo Protocol having to choose which obligation they would fulfill and which they would breach. It is not defined within the Malabo Protocol which obligation will take priority and states parties to both instruments may find themselves in difficult legal situations if both courts hold that they have jurisdiction over a particular case. The issue of competing obligations would likely arise in relation to indictments, but may also arise conceivably in relation to a number of other areas including competing cooperation requests. This may, for example, be in cases where both the ICC and ACJHR request specific assistance or documents.

F. Domestic Implementing Legislation

Under the Rome Statute system, and due to the principle of complementarity, state parties to the ICC are under a duty to enact domestic implementing legislation. This legislation should domesticate the Rome Statute crimes as well as provide for procedures of cooperating with the ICC.67 The Malabo Protocol also provides that it is complementary to national jurisdictions,68 and as such, those states party to the Protocol will also have to ensure that their domestic legislation is in line with the Protocol. It follows that the process of amending, updating or indeed adding further provisions into domestic legislation to incorporate the Malabo Protocol legislative requirements will need to be considered by states party to both the ICC and the ACJHR.

This may present a number of difficulties for those ICC states parties which have or are in the process of domesticating the Rome Statute. For example, the Malabo Protocol contains some variations in the definitions of Rome Statute crimes as well as a number of crimes which are not included in the Rome Statute. This may require a substantial amount of drafting and legislative work within current Rome Statute member states to bring domestic laws in line with the statutes of both the ICC and the ACJHR. This may even prove impossible if states are unable to domestically legislate definitional differences found in the Malabo protocol and Rome Statute systems. For example, the Kenyan International Crimes Act 2008 incorporates directly in its domestic implementing legislation the definitions of genocide, crimes against humanity and war crimes found in the Rome Statute.69 Furthermore, states parties to the ICC are required to enact domestic legislation ensuring cooperation requests, including for arrest and surrender, are properly executed by state parties. A number of African state parties’ domestic legislation provides for specific ICC related cooperation, this will also have to be adapted in order to also accommodate cooperation requests of the ACJHR.

G. Double Financial Burden

On a more pragmatic level, member states of both the Rome Statute and the ACJHR will have to contribute financially to both the ICC and the ACJHR, which may prove a heavy financial burden.

It is therefore critical for civil society organizations, particularly in member states which are also parties to the Rome Statute, to engage in a process of sensitizing governments on the potential difficulties of reconciling their obligations under the ACJHR with their obligations under the Rome Statute.

5. Conclusion and Way Forward

The exclusion of civil society from the process of formulating the Malabo Protocol marked a retrogression in AU’s standard-setting practice. As a result of this exclusion, the Malabo Protocol has received a largely lukewarm reception among civil society, a situation which undermines any possible future engagement between civil society and the ACJHR. However, it is important to note that all efforts to bring an end to impunity for crimes under international law should be welcomed and CSOs should engage with the Malabo Protocol with this spirit. This engagement must be based on a thorough understanding of the provisions of the Malabo Protocol and its legal and institutional implications. Yet, there is currently a lack of information and awareness regarding the Malabo Protocol and its legislative and institutional implications. In order to successfully be able to advocate with governments regarding the Protocol, it is crucial that civil society is educated about the implications of the Protocol and is empowered to engage in both regional and national advocacy campaigns with governments regarding the ACJHR, and to propose amendments to certain provisions of the Statute.70

Similarly, before states consider ratification of the Protocol, it is crucial that they are sensitized regarding the legislative history of the Protocol (including on controversies surrounding the issues of unconstitutional change of government and the immunities provision), on the specific provisions of the Protocol and concerns regarding such provisions, and on the institutional and other implications with respect to conflicting obligations in domesticating the Protocol, particularly for member states of the Rome Statute. When considering whether to ratify the Protocol, African Union member states should also be encouraged to consider whether to enter reservations to certain articles, and in particular, to Article 46A bis in the event that the provision is not amended to comply with international standards

On its part, and in order to ensure an effective court, the AU should prioritize the concerns arising from the expansion of the jurisdiction of the ACJHR to include crimes under international law and transnational crimes. Citizens and CSOs from across the continent should engage with the AU to ensure that the ACJHR is the most effective possible court and that if it is granted criminal jurisdiction that it has the strongest possible statute and institutional support to ensure that it is effective in bringing suspects to fair trials. CSOs must confront, however, some key dilemmas, as to whether to advocate with states to ratify the Statute in its current form, whether to suggest that States ratify the Protocol with reservations, or whether to advocate that the Protocol be re-opened for amendments in order to address some of the concerns that are identified above.

It is hoped that the AU will engage with civil society in the next steps of the process for the court’s establishment, such as the drafting of the Rules of Procedure and Evidence and of the Elements of the Crimes for the Court, even though this will not be enough to remedy the failure to involve civil society in the more controversial earlier negotiations.

Moreover, while the Rules of Procedure and Evidence and Elements of the Crime can go some way toward clarifying certain procedural and substantive aspects of the ACJHR Statute, these instruments cannot remedy some of the central concerns identified above with respect to specific provisions of the ACJHR Statute including the immunity clause. It is therefore crucial that CSOs advocate for the reopening of the Protocol for key amendments that would help resolve these issues and make the ACJHR a stronger institution.

Pending the establishment of the ACJHR, civil society should continue to work to strengthen the African Court on Human and Peoples’ Rights by submitting cases to the Court in order to build up its body of jurisprudence, and campaigning for the universal ratification of the Protocol on the Establishment of an African Court on Human and Peoples’ Rights. On its part, the AU should reconsider the decision to exclude civil society from its June/July summits as well as the stringent requirements for membership in the ECOSOCC. Active civil society participation in the activities of the AU, including standard-setting, will serve to strengthen the institution in addition to truly making it an organization guided by “the need to build a partnership between governments and all segments of civil society.”71

1 M Glasius, “Global justice meets local civil society: The international Criminal Court’s investigations in the Central African Republic” (2008) 33 Alternatives: Global, Local, Political 413, 414. See also G. Augustinyova & A. Dumbryte, “The indispensable role of non-governmental organizations in the creation and functioning of the International Criminal Court” (2014) Czech Yearbook of International Law 39.

2 For a detailed analysis of the involvement of CSOs in the Rome Statute negotiations see Z. PearsonNon-governmental organizations and the International Criminal Court: Changing landscapes of international law” (2006) 2 Cornell International Law Journal 243.

3 As above. See also M. GlasiusWhat is global justice and who decides? Civil society and victim responses to the International Criminal Court’s first investigations” (2009) 31 Human Rights Quarterly 496.

4 See, for example, A. Mudukuti “Complementarity and Africa: Tackling International Crimes at the Domestic Level” in E Ankumah (ed) The International Criminal Court and Africa: One decade on (2016) 489; N. Mue & J. Gitau “The Justice Vanguard: The Role of Civil Society in Seeking Accountability for Kenya’s Post-election Violence” in C de Vos et al. (eds) Contested Justice: The Politics and Practice of International Criminal Court Interventions (2015) 198; C. Bjork & J. GoebertusComplementarity in action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya” (2011) 14 Yale Human Rights & Development Journal 205.

5 See, for example, “Civil society and the International Criminal Court: Local Perspectives on Fact-finding” available at www.ijmonitor.org/2015/11/civil-society-and-the-international-criminal-court-local-perspectives-on-fact-finding/ (last visited on September 26, 2016).

6 See, for example, Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec.270(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.296(XV); Decision on the Application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of Republic of Sudan, Assembly/AU/Dec.221(XII); Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245(XIII), Rev 1; Decision on the Implementation of the Assembly Decisions on the International Criminal Court, Assembly/AU/Dec.366 (XVII); Decision on International Jurisdiction, Justice and the International Criminal Court (ICC), Assembly/AU/Dec.482(XXI).

7 See generally S. Odero, “Politics of International Criminal Justice, the ICC’s Arrest Warrant for Al Bashir and the African Union’s Neo-colonial Conspirator Thesis” in C. Murungu and J. Biegon (eds) Prosecuting International Crimes in Africa (2011) 145.

8 Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded Court (Index: AFR 01/3063/2016), January 2016, available at www.amnesty.org/en/documents/afr01/3063/2016/en/ (last visited October 11, 2016).

9 See Report of the Government Experts Meeting on the Establishment of an African Court on Human and Peoples’ Rights, OAU Doc OAU/LEG/EXP/AFC/HPR/RPT(I)Rev.1.

10 F. Banda, “Blazing a Trail: The African Protocol on Women’s Rights Come into Force” (2006) 50 Journal of African Law 72, 73.

11 M. du Plessis, “A Case of Negative Regional Complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes”, Blog of the European Journal of International Law, August 27, 2012, available at www.ejiltalk.org/a-case-of-negative-regional-complementarity-giving-the-african-court-of-justice-and-human-rights-jurisdiction-over-international-crimes/ (last visited 11 October 2016).

12 Joint Letter to the Justice Ministers and Attorneys General of the African State Parties to the International Criminal Court Regarding the Proposed Expansion of the Jurisdiction of the African Court of Justice and Human Rights, May 3, 2012, available at www.hrw.org/news/2012/05/03/joint-letter-justice-ministers-and-attorneys-general-african-states-parties (2012 Joint Open Letter).

13 See, for example, Amnesty International, Open letter to the heads of state and government of the African Union: Article 46A Bis of the Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Index: AFR 01/012/2014), June 20, 2014, available at: www.amnesty.org/en/documents/afr01/012/2014/en/ (last visited October 11, 2016); Human Rights Watch, Statement regarding immunity for sitting officials before the expanded African Court of Justice and Human Rights, November 13, 2014, available at www.hrw.org/news/2014/11/13statement-regarding-immunity-sitting-officials-expanded-african-court-justice-and (last visited October 11, 2016).

14 Decision on the Official Opening of the Ordinary Sessions of the Assembly, Assembly/AU/Dec.542(XXIII).

15 Decision on Streamlining of the AU Summits and the Working Methods of the African Union, Assembly/AU/Dec.582(XXV).

16 AU Constitutive Act, Article 4(c).

17 AU Constitutive Act, Article 3(g).

18 B. Moyo, “Civil society and the African Union architecture: Institutional provisions and invented interfaces” available at http://bhekinkosimoyo.com/downloads/civil_society_and_the_african_union_architecture.pdf (last visited October 4, 2016).

19 Statute of the Economic, Social and Cultural Council of the African Union, Article 2(3).

20 Statute of the Economic, Social and Cultural Council of the African Union, Article 6(6).

21 African Network on Debt and Development et al., Towards a People-driven African Union: Current Obstacles and New Opportunities (2007) 34.

22 See Report of the High Level Panel on Alternative Sources of Financing the African Union, Assembly/18/(XIX) (2012).

23 See A. Motala, “Non-Governmental Organizations in the African Human Rights System” in M. Evans & R. Murray (eds.) The African Charter on Human and Peoples’ Rights: The system in practice, 1986–2006 (2008) 246.

24 F. Viljoen, International human rights law in Africa (2012) 383.

25 Decision on the 38th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.887(XXVII), para. 7.

26 Decision on the 38th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.887(XXVII), para. 7. Although it initially seemed to resist political pressure, the African Commission withdrew CAL’s observer status in August 2018.

27 Decision on the Activities of the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.902(XXVIII) Rev 1, para. 7.

28 See Centre for Human Rights, University of Pretoria (CHR) & The Coalition of African Lesbians (CAL), Request for Advisory Opinion No. 002/2015.

29 Protocol on the Establishment of the African Court on Human and Peoples’ Rights, Articles 5 and 34(6).

30 Amended ACJHR Statute, Article 30(f).

31 Malabo Protocol, Article 1.

32 But see African Court on Human and Peoples’ Rights, Advisory Opinion on the Request for Advisory Opinion by the Socio-Economic Rights and Accountability Project (SERAP), No. 001/2013, May 26, 2017. See also A. Jones. “Form Over Substance: The African Court’s Restrictive Approach to NGO Standing in the SERAP Advisory Opinion” (2017) 17 African Human Rights Law Journal 321.

33 See http://en.african-court.org/#advisory-opinions (last visited October 31, 2018).

34 2012 Joint Letter.

35 Malabo Protocol, Preamble, para. 6.

36 Malabo Protocol, Article 4 and 7(1).

37 Malabo Protocol, Article 7(2).

38 Malabo Protocol, Article 6.

39 Amended ACJHR Statute, Article 25.

40 For the list of countries that have ratified the African Human Rights Court Protocol see www.au.int/en/sites/default/files/treaties/7778-sl-achpr_1.pdf (last visited January 7, 2016).

41 See www.africancourtcoalition.org/index.php?lang=en (last visited October 31, 2018).

42 Report of the Meeting of Ministers of Justice and/or Attorneys General on Legal Matters, May 14–15, 2012, Addis Ababa, Ethiopia, Min/Legal/Rpt., para. 17(iv).

43 Ibid., para. 18(ii).

44 F Viljoen “AU Assembly should consider human rights implications before adopting the Amending Merged African Court Protocol”, available at http://africlaw.com/2012/05/23/au-assembly-should-consider-human-rights-implications-before-adopting-the-amending-merged-african-court-protocol/ (last visited January 7, 2016).

46 Malabo Protocol, Article 46A bis.

47 The Report, the Draft Legal Instruments and Recommendations of the Specialized Technical Committee on Justice and Legal Affairs, Malabo, Equatorial Guinea, June 20–24, 2014, EX.CL/846 (XXV), para 25.

49 See South African Litigation Centre, SALC in the News: Africa Should Reject Free Pass for Leaders, November 18, 2013, available at: www.southernafricalitigationcentre.org/2013/11/18/salc-in-the-news-icc-africa-should-reject-free-pass-for-leaders/ (last visited October 11, 2016); Kenya Human Rights Commission, African States: Reject Immunity for Leaders, August 25, 2014, available at www.khrc.or.ke/2015-03-04-10-37-01/press-releases/387-african-states-reject-immunity-for-leaders.html (last visited October 11, 2016). See also: W. Jordash and A. Tsunga, The Day AU Leaders Justified the Existence of the ICC!, August 6, 2014, available at: http://ilawyerblog.com/day-au-leaders-justified-existence-icc/ (last visited October 11, 2016).

50 Human Rights Watch and others, Joint Civil Society Letter on the Draft Protocol on Amendments to the Statute of the African Court of Justice and Human Rights, May 5, 2014, available at www.hrw.org/news/2014/05/12/joint-civil-society-letter-draft-protocol-amendments-protocol-statute-african-court, (2014 Joint Letter).

52 Special Court for Sierra Leone, Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003–01-I, Appeals Chamber, Decision on Immunity from Jurisdiction (May 31, 2004), at para. 52. See also: Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 27 October 2004 (NS/RKM/1004/006), Article 56, which provides that “The position or rank of any Suspect shall not relieve such person of criminal responsibility or mitigate punishment.”

53 African Charter on Democracy, Elections and Governance, Preamble, para. 6.

54 1999 Algiers Declaration on Unconstitutional Changes of Government (OAU Doc. AHG/Dec. 141 (XXXV) (1999); OAU Doc. AHG/Dec. 142 (XXXV), the 2000 Lomé Declaration for an OAU Response to Unconstitutional Changes of Government; OAU Doc. AHG/Dec. 5 (XXXVI) (2000); 2002 Declaration on the Principle Governing Democratic Elections in Africa OAU Doc. AHG/Dec. 1 (XXXVIII) (2002).

55 ACDEG, Article 25.

56 See also Daily Maverick, “AU Summit Conclusions: Number Ones look out for Number One, Again”, July 4, 2014, available at www.dailymaverick.co.za/article/2014-07-04-au-summit-conclusions-number-ones-look-out-for-number-one-again/#.V86nSvmLTIU (last visited October 11, 2016).

57 Further, there is no definition of “coup d’état” in the ACDEG, from where the crimes contained in Article 28D have been taken almost verbatim.

58 See M. Duplessis, who makes this argument in “Shambolic, Shameful and Symbolic: Implications of the African Union’s Immunity for African Leaders”, ISS Paper 278, November 2014, p. 4, available at: www.issafrica.org/uploads/Paper278.pdf (last visited October 11, 2016).

59 Ibid., p. 8.

60 Malabo Protocol, Article 28G.

61 Article 4(xxxix)(b), African Model Counter-Terrorism Law, endorsed by the 17th Ordinary Session of the Assembly of the Union, 2011, available at http://caert.org.dz/official-documents/african-model-law-en.pdf (African Model Anti-Terrorism Law).

62 Article 4(xl)(a), African Model Counter-Terrorism Law.

63 Saul also raises the point that it is difficult to reconcile the modes of liability provided for Article 28G with the modes of liability that are provided for more generally in Article 28N of the Statute. See Chapter 15 in this volume.

64 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/16/51, December 22, 2010.

65 See, inter alia, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, December 9, 2014, UN Doc. A/HRC/28/28.

66 See Saul, Chapter 15 in this volume.

67 Rome Statute, Article 88.

68 Malabo Protocol, Article 46H.

69 See, Kenya International Crimes Act 2008 available at www.issafrica.org/anicj/uploads/Kenya_International_Crimes_Act_2008.pdf (last visited October 11, 2016).

70 Amnesty International has taken some steps towards such a sensitization including the publication of a study on the legal, financial and logistical implications of the Malabo Protocol, which has been widely disseminated to relevant stakeholders, member states, AU Organs and civil society. (See Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court (Index: AFR 01/3063/2016), January 22, 2016, available at www.amnesty.org/en/documents/afr01/3063/2016/en/ (last visited October 11, 2016). It is also planning regional consultations with civil society and the press regarding the Protocol within the broader context of international justice in Africa.

71 AU Constitutive Act, Preamble, para. 7.