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.Footnote 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.Footnote 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.”Footnote 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.Footnote ³² Article 53 of the Amended ACJHR Statute provides that:

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,Footnote 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,Footnote 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”,Footnote 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.Footnote 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.Footnote 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.Footnote 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).Footnote 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.Footnote 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.Footnote 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”,Footnote 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.”Footnote ⁴³ Thus, in the end, the Malabo Protocol provides states with “an all-or-nothing option.”Footnote 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.”Footnote ⁴⁵

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 followsFootnote ⁴⁶:

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.Footnote 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.Footnote ⁴⁸ CSOs have also repeatedly raised concerns about this clause in the Malabo Protocol,Footnote 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.Footnote 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.”Footnote 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:

Article 27(2) further provides that:

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.”Footnote 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.”Footnote ⁵³

Since 1999, the AU has adopted a number of decisions and declarations opposing unconstitutional change of government,Footnote 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.”Footnote 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.Footnote 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.Footnote 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.”Footnote 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.Footnote 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.Footnote 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.Footnote 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).Footnote 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),Footnote 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.”Footnote 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.Footnote 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.Footnote 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.Footnote ⁶⁷ The Malabo Protocol also provides that it is complementary to national jurisdictions,Footnote 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.Footnote 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.