On July 24, 2023, President William Ruto signed the Malabo Protocol, an instrument of ratification that will clip the wings of the International Criminal Court’s Rome Statute by limiting the jurisdiction of the permanent international court over matters relating to Africa and its heads of state and governments, meaning its a matter of time before the ICC can only hear cases authorized by the African Union (AU).
The Malabo Protocol will break the ICC’s regulatory and oversight orbit by placing the African Presidents and senior government officials beyond the judicial direction as it seeks to create a more agile African Court of Justice and Human Rights (ACJHR) which will try transnational crimes and cases under international law such as genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government, piracy, terrorism, coups, corruption, money laundering, human trafficking, illegal drug trade, illegal waste trafficking, illicit exploitation of natural resources, and the crime against peace.
Here are the five things you need to know about the Malabo Protocol:
1. The Malabo Protocol did not begin yesterday
The conversations that brought about the birth of the Malabo Protocol did not begin recently, but in the 1980s, when African leaders had a sitting to draft the African Charter on Human and Peoples’ Rights (now African Charter) in which Article 1 created the African Court on Human and Peoples’ Rights on January 25, 2004, after the heads of African countries agreed to ratify the court’s legal framework in their 34th Ordinary Session at Ouagadougou, Burkina Faso, in 1998.
2. Former Nigerian President Olusegun Obasanjo is the major playmaker – history of Malabo Protocol
The former President of Nigeria, Olusegun Obasanjo, who was central in the recent peace talks between President Ruto and former Prime Minister Raila Odinga concerning demonstrations in Kenya, is a major playmaker in the Malabo Protocol. In 2004, when Obasanjo was the Chair of AU, the African member-only political and economic union had already passed the Protocol of the Court of Justice of the African Union and the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights was already in force.
Initially, the African Human Rights Court was to execute its mandate as a standalone court, but the Nigerian ex-President proposed a merger saying, “Why shouldn’t the Court of Justice take along with it the Court on Human and Peoples’ Rights so that we have a Court of Justice which will have a division, if you like, for border issues, a division for human rights issues, a division for cross-border criminal issues or whatever.”
This gesture received condemnation and callouts from several human rights organizations, like Amnesty International and other whistleblowers, with arguments that the split would hinder the operations of the good plan of protecting human rights, but despite that, the AU established the Protocol on the Statute of the African Court of Justice and Human Rights in 2008 and assigned Pan African Lawyers Union (PALU) to work out the legal instrument in 2010. The draft Protocol was ready by 2011 and was reviewed in 2012.
However, the AU said, “The drafting process was rushed and very complex, lacked transparency, and full participation from the range of actors and stakeholders,” thus, it was not adopted.
3. Uhuru-Ruto ICC case brought Malabo Protocol
By 2012, the African Human Rights Court was already functioning but could not entangle with the African Court of Justice and Human Rights (ACJHR) because it was still premature – the draft Protocol had not been passed yet. The AU Commission and the African Human Rights Court were bound to make the necessary changes after their 19th Ordinary Session of the AU Assembly in July of that year.
The two bodies retreated to come up with answers to big questions raised during the Assembly, among them being to propose a definition of the crime of unconstitutional change of government and in a meeting held in December of 2012 in Arusha, its interpretation was, “Where the Peace and Security Council of the African Union determines that the change of government through popular uprising is not an unconstitutional change of government, the Court shall not be seized of the matter.”
The African leaders also discussed the financial costs of running ACJHR and partly instituted the Protocol. The question of its jurisdiction was still pending. It was now 2013. The AU Commission appointed the AU’s Peace and Security Council (PSC) as a partner in eliminating the deterrents in the draft statute of expanding the jurisdiction of the ACJHR.
In October 2013, Retired President Uhuru Kenyatta and President William Ruto were seeking a term as President and Deputy President, respectively, but were indicted in crimes against humanity following the 2007/2008 post-election violence and were standing trial at the ICC in the Hague, Netherlands.
The duo sought help from AU to stop the legal processes at ICC, which was successful, and were cleared to run for the Executive seats after the pressed charges were thrown out. It was after these happenings that the AU decided to override the ICC by rapidly instituting the Malabo Protocol, which grants immunity to all heads of state or presidents in Africa and undefined senior officials.
The Malabo Protocol or the Amended ACJHR Statute got validated in the 23rd Ordinary Session of the AU at Malabo, Equatorial Guinea, in June 2014.
4. Kenya is among the funders of ACJHR – over Ksh100 million
Despite its economic struggles at home, Kenya is offering to give $1 million to the African Court of Justice and Human Rights (ACJHR) to boost its justice initiatives when the court starts operating after the required number of countries ratify the Malabo Protocol.
According to projected operation costs, ACJHR will have 211 staff, consisting of 16 judges drawn from different AU states, and will work with an annual budget of $4,422,530.
5. Kenya is the 16th country to sign Malabo Protocol
After President William Ruto put his name and signature on the Malabo Protocol, it made Kenya the 16th country to give the first green light to the controversial Protocol after the Central African Republic (CAR) accepted it on July 19, 2023.
According to the African Parliament of the AU, before the Malabo Protocol becomes binding, a country must sign, which is the first step completed by Kenya, ratify, and finally deposit the instruments (in the Kenyan case, the pledged $1 million) at the African Union Commission.
Which countries have ratified the Malabo Protocol? Ratification simply means to be accepted under a country’s internal laws or constitution. As of 2023, 15 African countries have ratified the Protocol by completing the stated steps; signing, ratifying, and depositing the instruments.
Kenya will soon join the list as the country number 16 to ratify the Malabo Protocol, banking on President Ruto’s speech at the 3rd Pan-African Parliament’s Summit held in Midrand, South Africa, where he said: “PAP provides a fundamental deliberative forum where the peoples of Africa gather to reason exhaustively together and develop African Solutions to Africa’s Problems” and promised to ratify the Protocol by September 2023.
Here is the list of African countries (15) that have ratified the Malabo Protocol;
* Equatorial Guinea
* Sahrawi Arab Democratic Republic (Western Sahara)
* Sierra Leone
* The Central African Republic (CAR)