Since June 2014 when African leaders agreed to set up an African international crimes court, there’s been no progress towards its establishment. The Malabo Protocol, adopted at an African Union (AU) summit in Equatorial Guinea, needs to be ratified to give the court jurisdiction over international crimes and transnational organised crimes.

If created, it would be the world’s first regional court to address international crime. It could, for example, try perpetrators of drug trafficking in Kenya, war crimes in the Central African Republic or the Democratic Republic of the Congo, leaders of violent extremist groups such as Boko Haram or al-Shabaab, and other large-scale human rights abuses on the continent. Such jurisdiction could go a long way in addressing impunity for serious crimes in Africa.

The court is an ambitious project, which is no doubt partly why its existence is still far from becoming a reality. Only 15 of 55 AU member states have signed the protocol. Each of these 15 states would still need to ratify it before any steps could be taken for the court to start work.

The ratification challenges are enormous and complicated. The protocol adopted in Malabo is an amendment to an earlier protocol that seeks to merge two courts. The first of these courts is the African Court of Justice and Human Rights, which is largely non-existent beyond its creation by the Constitutive Act of the AU.

The second is the vibrant and functioning African Court on Human and Peoples’ Rights created by the African Charter on Human and Peoples’ Rights. The merger protocol also requires 15 ratifications, but since 2008 when it was adopted, only seven have been registered.

It’s thought by many that the Malabo Protocol was initiated as a political response to the AU’s contestation with the International Criminal Court (ICC), and human rights activists question how serious the AU really is in addressing justice deficits in Africa. While the Malabo Protocol follows on from earlier initiatives by the AU to seek accountability for serious crimes, its precarious relationship with the ICC expedited the protocol’s adoption.

Scepticism about why the court was created is further compounded by a plethora of concerns regarding the practicalities of exercising the court’s expanded jurisdiction, and its expenditure.

Perhaps most controversial is the provision in the Malabo Protocol of immunity for sitting African heads of state and senior government officials. Senior officials may be implicated in many of the crimes covered by the court. The inclusion of this article could effectively paralyse the court’s ability to deliver justice and accountability. Many argue that with the immunity provision, the AU could possibly cement the ICC’s ability to prosecute such officials.  

Another major concern stems from the court’s wide jurisdiction. The protocol covers 14 categories of ‘grave’ crimes: genocide, crimes against humanity, war crimes, unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, drugs and hazardous waste, illicit exploitation of natural resources and aggression.

And while war crimes and genocide, for example, are fixed terms in international criminal law, mercenarism, corruption and money laundering could be viewed as common crimes that are difficult to define and prosecute outside of domestic courts. This brings a host of legal challenges – not least how African states can align their national laws to complement the new court’s statute.

On the plus side, this wide jurisdiction is an opportunity for the AU to set a precedent for prosecuting these crimes at a regional level. But the technical and legal difficulties this presents means that the regional body should reconsider the long list of proposed crimes, with a view to including only international crimes.

Another concern is the silence on how the court will be financed. International criminal justice is a costly undertaking. For example, the ICC’s proposed 2020 budget is €150.52-million. Closer to home, the trial of former Chadian president Hissène Habré at the Extraordinary African Chambers cost about US$9.7-million in 2015.

Like many regional and international organisations, funding is an enduring problem for the AU’s current operations, never mind the massive additional costs of running a regional criminal court. The AU is primarily funded by external donors. If the protocol comes into force, the AU will continue being dependant on external funding and subjected to all the regulations that come with it.

Concerns about the viability of an African court are well founded. At the same time, the Malabo Protocol could afford African states primacy in investigating and prosecuting cases of mass crimes.

The chamber would ensure that Africans play a leading rather than a marginal or secondary role in justice discourse and practice on the continent. It would give African states the chance to articulate and practise a regional vision of international criminal justice. More importantly, it would tell victims in Africa that leaders take their justice needs seriously.

This is why African civil society and state actors alike should reinvigorate discussions around the Malabo Protocol. African governments should actively push the protocol’s reinstatement on the AU’s agenda.

As part of the ongoing AU reforms, there are efforts to increase the ratification of protocols adopted by the AU Assembly. This is a good opportunity to remind leaders about the Malabo Protocol’s outstanding ratifications. The issue could also be tabled by the AU’s Peace and Security Council.

The odds are poor that the court will become functional. But having started this process – and with the pushback by some African governments against the ICC – AU member states must give the Malabo Protocol a fighting chance. Not doing so would send a clear message that justice for victims of grave crimes is not a priority for African leaders, and that impunity for international crimes will probably continue.

Written by Maram Mahdi, Junior Researcher, Transnational Threats and International Crime, ISS Pretoria