Africa’s Evolving Continental Court Structures: At the Crossroads?

The document examines the evolution of African continental court structures, focusing on the 2014 Malabo Protocol. It argues that the protocol's creation of an 'Expanded Court' with jurisdiction over 14 international crimes is undermined by Article 46 A bis, which grants immunity to serving heads of state and senior government officials. The author contends this is a response to the perceived bias of the International Criminal Court (ICC) and the use of universal jurisdiction by European states, ultimately serving to protect political elites rather than victims of human rights violations.

• The Malabo Protocol, adopted in June 2014, proposes an 'Expanded Court' with jurisdiction over three core international crimes—genocide, crimes against humanity, and war crimes—plus 14 additional crimes, including corruption, terrorism, and unconstitutional change of government.
• Article 46 A bis of the Malabo Protocol grants immunity from the Expanded Court's jurisdiction to serving African heads of state, government, and other senior state officials based on their functions during their tenure.
• The author argues that the Malabo Protocol is a 'conscious snub' to the ICC because it fails to address the relationship between the Expanded Court and the ICC, focusing only on complementarity with national courts and regional economic communities.
• The drive for a continental criminal court was motivated by African leaders' concerns over the 'abuse' of universal jurisdiction by European states, specifically citing the 2008 indictment of 40 senior Rwandan officials by a Spanish judge.
• The African Union's relationship with the ICC deteriorated following the 2009 indictment of Sudanese President Omar Hassan Al Bashir, leading to AU calls for member states to not cooperate with the ICC and requests for the UN Security Council to defer prosecutions.
• The proposed Expanded Court faces significant practical hurdles, including a lack of funding compared to the ICC (which had a $134 million budget versus the ACHPR's $9 million in 2011) and the legal challenge of 'domestication' of 14 different international crimes into national laws.
• The grant of immunity in the Malabo Protocol contradicts established international law and the statutes of other tribunals (such as the Nuremberg and Rwanda tribunals), which generally exclude personal immunity for international crimes.
• Civil society organizations, including Amnesty International and the Coalition for the ICC, have condemned the immunity provision as a 'backward step' that creates a double standard between those in power and the general population.

APA

Abraham, G. (2015). Africa’s Evolving Continental Court Structures: At the Crossroads? South African Institute of International Affairs. https://saiia.org.za/wp-content/uploads/2015/02/Occasional-Paper-209.pdf

Chicago

Abraham, Garth. Africa’s Evolving Continental Court Structures: At the Crossroads? South African Institute of International Affairs, 2015. https://saiia.org.za/wp-content/uploads/2015/02/Occasional-Paper-209.pdf.

Wikipedia

{{cite report |last1=Abraham |first1=Garth |title=Africa’s Evolving Continental Court Structures: At the Crossroads? |publisher=South African Institute of International Affairs |date=January 2015 |url=https://saiia.org.za/wp-content/uploads/2015/02/Occasional-Paper-209.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{abraham2015africas, author = {Abraham, Garth}, title = {{Africa’s Evolving Continental Court Structures: At the Crossroads?}}, institution = {South African Institute of International Affairs}, year = {2015}, month = jan, url = {https://saiia.org.za/wp-content/uploads/2015/02/Occasional-Paper-209.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }