MOI UNIVERSITY

SCHOOL OF LAW

RESEARCH PAPER FLB 400

TOPIC: AN APPRAISAL OF THE MALABO PROTOCOL: IS IT A SOLUTION TO

THE AFRICAN PROBLEMS OR A HOAX?

BY:
OBWOGI JONATHAN OMBATI
LLB/386/13

RESEARCH PAPER SUBMITTED FOR PARTIAL FULFILLMENT OF THE

REQUIREMENT FOR THE AWARD OF BACHELOR OF LAWS (LLB) DEGREE

MOI UNIVERSITY, SCHOOL OF LAW

SUPERVISOR:

MR. I.M ORINA

AUGUST, 2016

1
 DECLARATION

I, OBWOGI JONATHAN OMBATI, ADM NO. LLB/386/13 do hereby declare that this

dissertation thesis is an original scholarly work of my hands and mind and that the same has

not been presented and/or submitted by any other person, and is not currently being submitted

by any other person for the award of a Bachelor of Laws (LL.B) degree or for the conferment

of any other academic credential whatsoever. Due acknowledgement has been made for every

work that has been cited. As such, no part of this discourse may be produced, stored in a

retrieval system, or transmitted in any form or by any means electronic, mechanical, via

photocopying, recording, or otherwise without the prior permission of the author hereinabove

mentioned.

Accordingly, this work has been presented to the undersigned supervisor and has been duly

approved.

Dated at Moi University on this…………………….. Day of ….………………….2016

.................................................... ..........................................

OBWOGI JONATHAN OMBATI Date

(Author)

…………………………… ………………………….

MR. I.M ORINA Date

(Supervisor)

i
 DEDICATION

To My God, for the gift of life, patience and serenity of mind; indeed, the hardest arithmetic I

am yet to master is that which will enable me count your blessings on me;

To my dad, Mr. Obwogi Benjamin and my mother, Mrs. Obwogi for their persistent believe in

my potential and providing me with all that I needed to remain in school.

To my siblings, Truphena, Suzy, Dennis, Leah and Diana not to forget my nephew Griffins and

niece Shirleen for the support and love throughout this four year journey.

To My friends and the entire Annex School of law family for the unending encouragement and

support.

I dedicate my research.

ii
 ACKNOWLEDGEMENT

To these nature’s masterpieces;

Mr. I.M ORINA, for his patience, valuable guidance, assistance and motivation extended to

the author in all the time of supervision of this research. Surely, the author would not have

imagined having a better supervisor with such vast knowledge in International Criminal Law;

Prof. Charles Jalloh to whom the author is extremely thankful and indebted for; sharing his

expertise, insightful comments, assistance and encouragement that helped in furrowing the

contours of this dissertation. Thank you for consuming your candle of knowledge to lit the

author’s;

Attalo Alvin, Mohamed Dayib Ali, Ekiru A Korobe, Sadam Hussein, DaudMursal, Hemed

Abdalla and Mbarak Hamid for the constructive and stimulating discussions engaged in this

topic. The author also appreciates the hard questions which incented the widening of this

research from various perspectiveIndeed, the larger the island of knowledge the longer the

shoreline of mystery;

Sarah Kolum, Violet Ruto, Adier Stephen and Caroline Ndanu, I appreciate your input in

ensuring that I scale to the requisite height;

To all those who directly or indirectly have lent their hands in this venture the only pay that

possibly matches their kind souls can only be found in the currency of gratitude, God’s

gratitude.

LIST OF ABBREVIATIONS

ACDEG African Charter on Democracy, Election and Governance.

iii
ACJ African Court Of Justice
ACJHR African Court of Justice and Human Rights
AU African Union
ICC International Criminal Tribunal
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for Former Yugoslavia
LRA Lord Resistant Army.
ODM Orange Democratic Movement
PALU Pan African Lawyers Union
PNU Party of National Unity
PSC Peace and Security Council
PTC Pretrial Chamber
SCSL Special Court for Sierra Leone
UN United Nations
UNCG Unconstitutional Change of Government
UNSC United Nations Security Council.
USD United States Dollar
WWI World War One
WWII World War Two

TABLE OF CONTENTS

DECLARATION ........................................................................................................................ i

iv
DEDICATION ...........................................................................................................................ii
ACKNOWLEDGEMENT ....................................................................................................... iii
LIST OF ABBREVIATIONS .................................................................................................. iii
CHAPTER ONE ........................................................................................................................ 1
INTRODUCTION ..................................................................................................................... 1
1.0 Background to the Study .................................................................................................. 1
1.1 Statement of Problem ....................................................................................................... 2
1.2 Justification of the Study .................................................................................................. 2
1.3 Statement of Objectives ................................................................................................... 3
1.4 Research Questions .......................................................................................................... 3
1.5 Hypothesis ........................................................................................................................ 4
1.6 Conceptual Framework .................................................................................................... 4
1.6.1 The Complementarity principle ................................................................................. 4
1.7 Universal Jurisdiction ....................................................................................................... 5
1.8 Research Methodology..................................................................................................... 6
1.9 Literature Review ............................................................................................................. 6
CHAPTER TWO ..................................................................................................................... 10
THE JOURNEY OF INTERNATIONAL CRIMINAL JUSTICE IN AFRICA. .................... 10
2.0 Introduction. ................................................................................................................... 10
2.1 The UN International Criminal Tribunal for Rwanda (ICTR) ....................................... 10
2.1.1 Establishment of the Tribunal by the United Nations ............................................. 11
2.2 The Special Court for Sierra Leone................................................................................ 12
2.3 The International Criminal Court ................................................................................... 12
2.3.1 The Negotiation Process of the Rome Statute ......................................................... 14
2.4 The African Court of Justice and Human Rights ........................................................... 14
2.5 The Principle of Universal Jurisdiction.......................................................................... 16
2.6 Conclusion .................................................................................................................. 18
CHAPTER THREE ................................................................................................................. 20
AN ENMESHED MARRIAGE BETWEEN AFRICA AND THE INTERNATIONAL
CRIMINAL COURT. .............................................................................................................. 20
3.0 Introduction .................................................................................................................... 20
3.2 A Change of Heart by Africans on the ICC, majorly informed by the Darfur and Kenya
situations............................................................................................................................... 21
3.2.1 The Situation in Darfur. .............................................................................................. 22
v
 3.2.2 The Situation in Kenya. ........................................................................................... 25
3.3 Salient Factors that led to the strained relationship between the African Union and the
International Criminal Court. ............................................................................................... 27
3.3.1 The ICC is a ‘Western Court’ that is unfairly focused on Africa. ........................... 27
3.3.2 Argument that the ICC is thwarting African efforts to deal with atrocities on the
continent. .......................................................................................................................... 28
3.3.3 The Security Council’s Double-Standard. ............................................................... 29
3.3.4.A Immunity for Heads of States and Governments and Senior Government
Officials. ........................................................................................................................... 30
3.5 Conclusion...................................................................................................................... 35
CHAPTER FOUR .................................................................................................................... 36
CONCLUSIONS AND RECOMMENDATIONS .................................................................. 36
4.0 Conclusion...................................................................................................................... 36
4.1 Recommendations. ......................................................................................................... 41
4.1.1 Introduction. ............................................................................................................ 41
4.1.2 Legality of African Criminal Prosecution vis-à-vis the Rome Statute. ................... 42
4.1.3 An Amendment to both the Rome Statute and the Malabo Protocol on the Principle
of Complementarity. ......................................................................................................... 44
4.1.3.1 The Principle of Complementarity as provided for under the Malabo Protocol.
....................................................................................................................................... 45
4.1.4 The need to have a court that prosecutes crimes of serious concern that are only
peculiar to Africans and which the ICC has got no jurisdiction over............................... 46
4.1.5 A need to address and strengthen the relationship between the African Court and
the ICC. ............................................................................................................................. 47
4.1.6 Conclusion. .............................................................................................................. 49
BIBLIOGRAPHY .................................................................................................................... 50

vi
 CHAPTER ONE

INTRODUCTION

1.0 Background to the Study

The African Union, through the heads of states and governments, has expressed a particular

concern on the international criminal justice. Its concern has been mainly pegged on the

exercise of the universal jurisdiction and the work of the International Criminal Court. African

officials have been indicted before both domestic courts of Europe and the International

criminal court. They have been indicted for war crimes, crimes against humanity and even for

international white collar crimes.

Former Libyan president Muammar Qadaffi was indicted in France for torture and conspiracy

to commit torture and terrorists acts and the court of cessation of France rendered its judgment

in his favour.1 The former Mauritanian president Maaouya Ould Sid ‘Ahmed Taya was also

indicted in France in 2005.2 Rwandan state and military officials were also indicted in 2007 in

France for their alleged role in the 1994 Rwandan genocide. 3 In 2009 a court in Paris issued

indictment against five serving heads of African states and governments alleging corruption.

The five included Denis SassouNguesso of Congo; ObiangNgurma of Equatorial Guinea; Omar

Bongo of Gabon; Blaise Compaore of Burkina Faso and Eduardo Dos Santos of Angola.4

These indictments are seen as the long term factors that boosted the African heads of states and

government’s desire to have an African solution to the African problems. The solution

therefore is to have an African court with a jurisdiction to try international crimes.

The criminal proceedings against the sitting heads of states, that is, Omar Al Bashir of Sudan,

Uhuru Kenyatta of Kenya and his deputy William Samoei Ruto are arguably considered as the

1
SOS Attentats et Beatrice castlenau d’ Esnaut C. Gadafy, 125 International Law Report 490, 508, 13 March 2001
2
International Federation of Human Rights Defenders (FIDH) and Others v. Ould Dah, 8 July 2002, Court of
Appeal of Nimes, 1 July 2005 (Nimes Assize court, France).
3
ChachaBhoke Murungu, ‘Towards a criminal chamber in the African court of Justice and Human Rights (2011)
a journal of International criminal justice, 1069.
4
Ibid.

1
immediate cause for the want of an African court seized with the power to try international

crimes. Following these indictments the AU reacted and decided, first, not to cooperate with

the ICC, second, to initiate steps towards the establishment of a criminal chamber in an African

court and lastly, to petition the Security Council for deferral of the cases against the Kenyan

officials.5

In its summit held in Addis Ababa in February 2009, the AU Assembly requested the African

Union Commission (AU Commission), in consultation with the African Commission on

Human and Peoples’ Rights (the African Commission) to assess the implications of

recognizing the jurisdiction of the African Court to try international crimes.6 The protocol was

however adopted later on 27 June 2014 in Malabo, Equatorial Guinea.

1.1 Statement of Problem

The problem that arises is whether an African court can try international crimes without

constraining the relationship between the African states with the international criminal court.

This is to mean, can changes be made to the instrument that extends such jurisdiction (Malabo

protocol) and to the Rome statute to ensure that these two courts coexist to ensure that

international justice is achieved?

1.2 Justification of the Study

This study is justified on the grounds that in as much as there have been an intellectual

discourse on the real motive behind the African heads of states in coming up with an African

court that tries international crimes, there is scarcity of consensus amongst scholars on the

existence of both a continental criminal court and the international criminal court, most people

are either of the opinion that Africa should pull out of the International Criminal Court and

5
MboriOtieno, ‘The merged African Court of Justice and Human Rights (ACJ&HR) as a better criminal justice
system than the ICC: Are we Finding African Solution to African problems or creating African problems without
solutions?’. <http://ssrn.com/abstract-244544>accessed on 9th November, 2015
6
Decision on the Abuse of the principle of Universal Jurisdiction, Doc, EX.CL/606(XVII)

2
consequently establish its own criminal court, or that Africa should stick to the International

criminal court and any attempt to establish a court that tries international crimes in Africa is

nothing but a spurious act of the heads states and government to espouse impunity. This

research is therefore meant to illuminate more light on the possibility of having both courts

exist, mutatis mutandis, to accommodate both parties without mutilating the international

criminal justice.

1.3 Statement of Objectives

The main objective of this paper is to discuss the ramifications of the adoption and ratification

of the Malabo protocol by the African states especially on international criminal justice. The

paper is also to discuss some of the key provisions in the protocol including but not limited to

the crime of unconstitutional change of government and immunity clause set in Articles 28E

and 46A respectively and how such provisions contradict each other.7

1.4 Research Questions

The research shall seek to answer the main question: Is it possible to have both the ICC and the

African court of Justice and Human Rights (ACJ&HR) try international crimes at different

planes?

Some questions, ancillary to the main, emerge thus:

1. Whether there a need to amend the Rome statute, especially on the complementarity

clauses, to accommodate a regional criminal court.

2. Whether the African states should consider subjecting the Malabo Protocol to further

scrutiny in order for them to assert their quest for African justice.

7
Matsiko Samuel, ‘Death at funeral.’<http://www.linkedin.com/pulse/malabo-protocol-immunity-
question.>accessed on 9th Nov 2015

3
1.5 Hypothesis

The research paper avers that Africa has got peculiar problems that can only be dealt with an

African court, to wit, crimes such as unconstitutional change of government which is a

characteristic of Africa’s political fabric.8 It however proceeds without throwing caution to the

wind that necessary amendments should be made to the Malabo protocol, so as not to subvert

the international criminal justice, and some to the Rome statute to accommodate the sui generis

court that Africa is to establish.

1.6 Conceptual Framework

It is important to cast a ray of light into the key terms that will be used regularly in this

dissertation paper. The terms are such that are fundamental to understanding the subject at

hand. They will be defined and explained briefly as hereafter:

1.6.1 The Complementarity principle

The principle of complementarity can be defined as a functional principle aimed at granting

jurisdiction to a subsidiary body when the main body fails to exercise its primacy jurisdiction.9

This is nothing other than a principle of priority among several bodies able to exercise

jurisdiction.10 The principle of complementarity, even if not new, regained some interest with

the adoption of the Rome Statute in 1998, in which the principle of primacy of jurisdiction

recognized in the statutes of the two earlier ad hoc tribunals, the International Criminal

Tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR respectively), was

reshaped into a principle of complementarity for the benefit of member states.11 This principle

therefore allows national courts to try individuals indicted of grave violations of international

8
Ibid
9
X Phillipe, ‘The principles of universal jurisdiction and complementarity: how do the two principles
intermesh?’International Review of the Red cross, Vol. 88 No. 862 June 2006. P.386
10
Bartam S. Brown, ‘Primacy or complementarity: Reconciling the jurisdiction of the national courts and the
international criminal tribunals; Yale Journal of International law, Vol. 23, p. 380
11
Supra n. 9

4
criminal law before international tribunals step in. International tribunals will then try such

individuals if the national courts are unable or unwilling to try such individuals. This principle

is the cornerstone of the relationship between the ICC and national jurisdictions. Paragraph 10

of the Rome statute preamble and Articles 17, 18, 20 and 53 clearly postulate that the ICC is

of an ultima ratio jurisdiction. Art 46(2) (b) of the Malabo Protocol as well recognizes this

fundamental principle of international criminal law.

1.7 Universal Jurisdiction

The principle of universal jurisdiction is classically defined as ‘a legal principle allowing or

requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the

location of the crime and the nationality of the perpetrator or the victim.12 The rationale behind

it is broader: ‘it is based on the notion that certain crimes are so harmful to interests that states

are entitled, and even obliged, to bring proceedings against the perpetrator, regardless of the

location of the crime and the nationality of the perpetrator or the victim.13Universal jurisdiction

allows for the trial of international crimes committed by anybody, anywhere in the world. 14

Most scholarly have arguably intimated that it precisely for this sole international principle that

the African Union le by the heads of states and governments decided to establish an African

criminal court. This is basically because they felt that the western countries were being

imperialistic in trying to invoke this principle.

12
Kenneth C. Randall, ‘ Universal Jurisdiction under International Law’, Texas Law Review, No. 66(1988) pp.
783
13
Mary Robinson, ‘Foreward’, the principle on universal jurisdiction, Princeton university press, Princeton. 2001.
P.16
14
Supra n. 9

5
1.8 Research Methodology

This research is heavily reliant on qualitative data. This data is gathered from journals, books,

articles, case law, international instruments, and internet sources. From the data received, then

a legal and critical analysis of each is made so as to reach a conclusion that is both practical

and ideal.

More reliance will be based on the library as it will be important in trying to understand and

analyze the anatomy of international criminal tribunals, the internet sources on the other hand

will be crucial because the Malabo protocol is relatively a new instrument and there hasn’t been

a lot of books written on it. The African Court of Justice and Human Rights will is also, so far,

the only continental court that will try international crimes therefore making journals and

articles instructive in this research paper.

1.9 Literature Review

Although the Malabo protocol was adopted on 27th of June 2014 in Malabo, Equatorial Guinea,

there have been a number of literatures on the effectiveness of the African court to try

international crimes. This research paper will take these available works into consideration

even as it tries to bring an ideally different approach to the whole debate as to whether to have

an African court that tries international crimes.

International criminal law has sometimes been criticised for ‘providing victors in a conflict

with an opportunity to demonise their opponents, sanitise their crimes and perpetuate

injustice’.15 This research paper will therefore advance an argument on the need to have an

African court that does not seek to advance impunity by ensuring that those that

unconstitutionally get power are brought to justice, as opposed to when the court is to be used

as a tool by such individuals to advance their interests.

15
W Schabas, An introduction to International Criminal Court, 2004.

6
ChachaBhoke Murungu argues that the African court that is meant to try international crimes

is like a two tailed dog, which claims to advance justice on the one hand and subvert the same

justice on the other.16 Her main argument being that there already exists an International

Criminal Court that can handle those crimes and what the African court ideally intends to do

is advance impunity of the heads of African states. This kind of imagination will be applauded

knowing that the court gives state officials immunity from prosecution by international

tribunals. This research however will take a different dimension where it will posit a possibility

of having an African court trying crimes that are peculiar to Africa by an African court.

William A Schabas on the other hand on his article, An introduction to the International

Criminal Court, states that the international criminal court is tamper proof and thus cannot be

politically influenced unlike the African court which will be at the mercy of the African heads

of states.17 This to a larger extent is true since the African states have been in the forefront in

trying to frustrate the ICC process, the paper would however differ with William in claiming

that an African court cannot be tamper proof. The paper will seek to make recommendations

as to how such a court can be made tamper proof.

Francois-xavior argues that the African system does not address the more troubling issue of

impunity and individual criminal responsibility for international crimes often committed on the

African continent.18 He calls the system weak and infant while making a reference to the

existing African Court of Human and Peoples’ Rights inability to be fully operational. His grim

picture of the African criminal justice cannot be wished away, however this research paper

intends to explore more options proceeding on the presumption that Francois-

16
Supra n.3
17
W Schabas, ‘ First Prosecutions at the ICC.’ Human Rights Law Journal. (2006)
18
Francois-xavoirBangamabo, ‘International criminal justice and the protection of human rights in Africa.’ He
further cites lack of a regional criminal tribunal that can try the atrocities committed by African perpetrators on
the African soil.

7
xavoir’sobservation is clouded with partiality, albeit the fact that he mentions serious and

tangible issues affecting Africa.19

John MukumuMbaku asserts that two realities gave impetus to Africa’s strong support for the

establishment of the ICC: the carnage that gripped Rwanda in 1994 and the need to find ways

to prevent powerful countries from preying on weaker ones.20 There was an urgent need in

Africa to squarely confront impunity and the mass violation of human rights as well as prevent

military, politically and economically stronger countries from invading weaker ones.21

This African desire is still alive and unachieved, albeit the creation of the ICC which was

thought to give a lasting solution to the aforementioned problems. The ICC is however not to

bear the blame alone for having all its cases from Africa, but have the African leaders partly to

blame and should therefore stop the charade of blaming the ICC when ideally they are the

makers of their misfortunes. The research paper shall therefore make a thematic

recommendation on this thorny issue where it shall propose the adoption of the Malabo

protocol mutatis mutandis without jeopardizing the relationship between Africa and the ICC.

MakauMutua argues that it is possible to interpret the AU’s position as ‘political’ without any

‘legal’ effects on the obligation of African states parties to the Rome statute.22 The ICC being

a sui generis international tribunal is susceptible to being politicked, but this does not mean

that it should be done away with. The AU’s woes of the ICC are amorphous thus prompting

this research paper to recommend a creation of an ‘African Criminal Court’ to deal with

peculiar African problems and further have the ICC that will be mandated on a

19
True, Africa is yet to demonstrate its ability to try individuals who are responsible for massive violation of
human rights on its soil but this doesn’t mean that this undesirable reality cannot be changed.
20
John MukumMbaku, ‘The International Criminal Court and Africa.’(2014)
21
Ibid. This desire seemed to have been quenched by the creation of the ICC, however the satisfaction seemed
to have been short-lived since, according to the African leaders, the court is being used by the Western powers
to exert imperialistic justice on African leaders.
22
MakauMutua, ‘The International Criminal Court in Africa: challenges and opportunities.’ Noref Working
Paper. (September, 2010.)

8
complementarity basis to try crimes matters that haven’t been tried by the African Criminal

Court.

9
 CHAPTER TWO

THE JOURNEY OF INTERNATIONAL CRIMINAL JUSTICE IN AFRICA.

2.0 Introduction.

In understanding the journey of Africa to the ICC, through the ad hoc tribunals and now back

to their own court (African Court of Justice and Human Rights) one ought to also preface it

with the history of the commission of international crimes in Africa.

For many decades, Africa has been subjected to and ravaged by protracted intra and interstate

conflicts. It is, thus, a sad reality that Africa is home to many international human rights

violations and atrocities, even in peacetime. The past and continuing cycles of inter-ethnic and

civil wars on the continent have exposed millions of innocent civilians to egregious crimes

such as genocide, war crimes, torture, sexual violence, and massive killings.23

These conflicts have been as a result of either some individuals who rise to power refuse to

relinquish it and since the colonial masters divided Africans in tribal lines, the idea of clinging

on to power aggravates a section of the population especially those from the rival communities

thus prompting them to take up arms against their fellow countrypersons. This chapter will

analyze the international criminal justice process in Africa through the UN ad hoc tribunals, to

wit, the ICTR, the special court of Sierra Leone and further look at the mandate of the ICC in

Africa before finally shedding more light on the reason as to why the African states through

the AU are opting for a regional court to try international crimes.

2.1 The UN International Criminal Tribunal for Rwanda (ICTR)

Rwanda went up in flames on the evening of 6 April 1994, when President Juvenal

Habyarimana and his colleague, Cyprien Ntaryamira, the then President of Burundi, were killed

23
Supra n.18

10
in a mysterious plane crash while returning from neighbouring Tanzania, where the former was

negotiating a settlement to his country’s civil war. 24

2.1.1 Establishment of the Tribunal by the United Nations

The Security Council requested that the Secretary General empanel a Commission of Experts

to investigate and report on the evidence of the Hutu violations of International Humanitarian

Law.25In October 1994, the Commission reported to the Security Council that there were

undeniable and overwhelming evidence that the actions taken against the Tutsi constituted

genocide and that a tribunal should be established.26The Rwandan government offered its full

cooperation in the establishment of the tribunal. The ICTR was created under the authority of

Chapter VII of the UN Charter, which specifies that the Security Council has the right to take

actions which maintain peace and security.27

The United Nations International Criminal Tribunal for Rwanda was established at the end of

1994 with the Security Council mandate to prosecute allinternational crimes committed in

Rwanda during the previous year. Unlike the Nuremberg and Tokyo Tribunals, organized by

the “victors” of WW-II, the ICTR and the Tribunal for the former Yugoslavia (ICTY) were

created by the UN Security Council, albeit under controversial circumstances. 28 Lack of a

regional or even an International Criminal Court to try the international crimes that were

committed in Rwanda prompted the United Nations to create an ad hoc tribunal whose mandate

was to try those crimes that were committed during the 1994 genocide.

24
Lilian A. Barria and Steven D. Roper, ‘How Effective are International Criminal Tribunals? An Analysis of
the ICTY and the ICTR.’ (2005) The International Journal of Human Rights.
25
Daphna Shraga and Ralph Zacklin, ‘The International Criminal Tribunal for Rwanda’ European Journal of
International Law, Vol. 7 (1996), pp.501
26
Ibid.
27
Ibid; The ICTR Chamber in the Kanyabashi case addressed this issue and affirmed the legality of the creation
of the ICTR.
28
Prof. Peter Erlinder, ‘The International Criminal Tribunal for Rwanda: A Model for Justice or Juridically
Created “Victor’s Impunity”?’ (2008).
Whether the Security Council has a proper mandate to establish tribunals under Chapter 7 “peace-enforcement”
powers are issues raised at both the ICTY and ICTR and remain the source of some controversy

11
2.2 The Special Court for Sierra Leone

Unlike the ICTR, the special court for Sierra Leone was created by an agreement between the

United Nation and the government of Sierra Leone.29The jurisdictional scope of the SCSL was

to try persons who bore the greatest responsibility of the commission of crimes against

humanity, war crimes, and other serious violations of International Humanitarian Law in Sierra

Leone that occurred after 30th November 1996, in addition the court had powers to prosecute

certain crimes under the national laws of Sierra Leone.30 Of note is the court’s jurisdiction that

embraces both internationalcrimes and crimes of a national character.

The SCSL constitutes a treaty with a mixed jurisdiction and composition, while some judges

are appointed by the UN, others are designated by the government of Sierra Leone.31It was the

first modern international tribunal to sit in the country where the crimes took place, and the

first to have an effective outreach programme on the ground.32The Special Court for Sierra

Leone was the first international court to be funded by voluntary contributions and, in 2013,

became the first court to complete its mandate and transition to a residual mechanism.33

2.3 The International Criminal Court

As the two “ad hoc” tribunals developed, more and more states from around the world began

to see the wisdom of a more permanent International Criminal Court (ICC).They arrived at this

view as they observed both the strengths and the weaknesses of the “ad hocs” – strengths,

because their professionalism and fairness offered a preview of how a permanent international

court would operate; and weaknesses, because it became clear that any country-specific court

29
Supra n.23
30
Paul J. Magnarella, ‘Justice in Africa: Rwanda’s Genocide, Its courts, and the UN Criminal Tribunal
(Aldershot:Ashgate, 2000)
31
Supra n.23
32
Ibid.
33
Ibid.

12
set up under Security Council auspices would be vulnerable to political and budgetary pressures

and debilitating start-up delays.34

At the same time as these limitations became apparent, there was also growing state interest in

the assertion of “universal jurisdiction,” a term that expresses the idea that certain crimes are

so heinous that they constitute crimes against the entire international community, wherever

they are committed. As such, humanity as a whole that is to say, any statehas the right, and

sometimes the obligation, to bring the perpetrators to trial.35

One of the founders of the Red Cross movement which grew up in Geneva in the 1860, urged

a draft statute for an International Criminal Court. Its task would be to prosecute breaches of

the Geneva Convention of 1864 and other humanitarian norms. But Gustav Monnier’s

innovative proposal was much too radical for its time.36

The International Criminal Justice which is largely a by-product of the end of the cold war

begun to emerge in the form of negotiations surrounding the ICC statute. Simultaneously,

however, events in Yugoslavia, Sierra Leone and Rwanda saw the world witness mass

atrocities for which the international system at the time was unprepared. In response, ad hoc

tribunals were established to address each situation, although these tribunals had limited

mandates and jurisdiction authorised by the UN. Undoubtedly the events of WWII, the

dissolution of Yugoslavia and the genocide in Rwanda had a significant impact on the decision

to construct the Rome Statute which established the permanent ICC.37

34
Carr Center for Human Rights Policy Working Paper T-00-02, ‘The International Criminal Court’.
35
Ibid
36
Christopher Keith Hall, ’The First Proposal for a Permanent Criminal Court,’ International Review of the Red
Cross 57.
37
Available at <http://www.sahistory.org.za/article/international-criminal-court-origins-jurisdiction-and-african-
bias#sthash.atISs9Wd.dpuf> accessed on 3rd February 2016.

13
In 1994, the United Nations General Assembly decided to pursue work towards the

establishment of an International Criminal Court, taking the International Law Commission’s

draft statute as a basis.38

2.3.1 The Negotiation Process of the Rome Statute

As stated above, in establishing a Permanent International Criminal the UN relied majorly on

the draft statute of the International Law Commission. The draft envisaged a court with

‘primacy’, which like the ad hoc tribunals that had been set up by the Security Council for the

former Yugoslavia and Rwanda. If the Prosecutor chose to proceed with a case, domestic courts

could not preempt this by offering to do the job themselves.39

In meetings of the Ad Hoc Committees, a new concept reared its head, that of

‘complementarity’, by which the court could only exercise jurisdiction if domestic courts were

unwilling or unable to prosecute.40 Another departure of the Ad Hoc Committee was its

insistence that the crimes within the court’s jurisdiction be defined in some detail and not

simply enumerated.41 The Ad Hoc Committee concluded that the new court was to ensure the

highest standard, of justice, and that this should be incorporated in the statute itself rather than

being left to the uncertainty of the judicial discretion.42

2.4 The African Court of Justice and Human Rights

The proposal to extend the mandate of the African Court of Justice and Human Rights

(ACJHR) to include a criminal jurisdiction would probably be stillborn if it were not for

specific events that motivated the AU to more seriously consider it.43 The feeling by most

African leaders that the western countries were exacting an imperialistic rule over their

38
William Schabas, ‘An Introduction to the International Criminal Court’. Cambridge University Press (2001).
39
Ibid
40
See Roy Lee ed. Infra n. 37.
41
Supra n.33.
42
Ibid.
43
Supra n.3

14
respective states prompted them to propose a regional criminal court. This was mainly because

they felt that the so called ‘powerful’ nations were using the International Criminal Court, a

court which most African states played a major role in establishing, as a tool to ‘unfairly’ target

African leaders that did not serve the western interests.44

In February 2009, the AU Assembly requested the AU Commission in consultation with the

African Commission and the African Court of Human and Peoples’ Rights, ‘to examine the

implications of the Court being empowered to try international crimes such as genocide, crimes

against humanity and war crimes, and report thereon to the Assembly in 2010.45Pursuant to

this decision, the AU Commission contracted the secretariat of the Pan African Lawyers Union

(PALU) to study and provide recommendations on a legal instrument which would amend the

Protocol on the ACJHR.46

PALU submitted its reports to the AU Commission in June and August 2010. Annexed to

PALU’s June 2010 report was a first draft of the Protocol. The Draft Protocol was however not

adopted since most leaders sought clarification on the inclusion of the crime of unconstitutional

change of government as one of those crimes to be tried by the court. This called for several

sessions that were to discuss the efficacy of such inclusion.

In October 2013, Kenya, with the support and backing of the AU,47requested the UN Security

Council to defer the proceedings against the President and his Deputy at the ICC for a period

of one year. The UN Security Council refused to even consider the request and The AU

44
Max du Plessis, ‘The International Criminal Court that Africa wants.’ Institute for Security Studies. (2015)
45
Decision on the implementation of the Assembly Decision on the abuse of the principle of universal
jurisdiction, Decision Assembly/AU/Dec. 213(XII), 4February 2009. See also Decision on the Implementation
of the Assembly Decisions on the International Criminal Court, Assembly/AU/Dec.366 (XVII), para 8
46
Supra n.41
47
Decision on the Progress Report of the Commission on the Implementation of the Decisions on the
International Criminal Court, Assembly/AU/Dec.493(XXII) para 6

15
Assembly was ‘deeply disappointed’. It asked the AU Commission to move with speed and

conclude the process of extending the jurisdiction of the ACJHR.48

The AU Assembly meeting for its 23rd ordinary session in Malabo, Equatorial Guinea, adopted

the Malabo Protocol, The amended Statute of the African Court of Justice and Human Rights

(Amended ACJHR Statute) was annexed to the Malabo Protocol.49The Malabo Protocol was

to come into force 30 days after the deposit of instruments of ratification by 15 member states.

In January 2015, the AU Assembly proposed the ratification of the Malabo Protocol be fast-

tracked.50

As at March 2016, five countries (Kenya, Benin, Congo Brazzaville, Guinea-Bissau and

Mauritania) had signed the Protocol, with Kenya pledging USD 1 million to assist in the

establishment of the ACJHR.51

The foregoing discussion is a manifestation of how the African leaders, representing or

otherwise purporting to represent the interests of their countries, are determined to have a

regional court mandated to try international crimes. Whether or not this feat is a genuine desire

to end the human suffering that in Africa that has been occasioned by repeated civil wars,

remains to be seen and this paper seeks to explore options that might point otherwise.

2.5 The Principle of Universal Jurisdiction.

At first glance, linking universal jurisdiction and the African Court may appear odd given that

the Protocol does not actually grant the African Court this form of jurisdiction.52

48
Decision on the Progress Report of the Commission on the Implementation of the Decisions on the
International Criminal Court, Assembly/AU/Dec.493(XXII) para 13.
49
Decision on the Draft Legal Instruments, Assembly/AU/Dec.529 (XXIII).
50
Amnesty International, ‘Malabo Protocol: Legal & Institutional Implications of the Merged and Expanded
African Court’.(2016).
51
Ibid.
52
Manuel J. Ventura and Amelia J. Bleeker, ‘Universal Jurisdiction, African Perceptions of the International
Criminal Court and the New AU Protocol on Amendments to the Protocol on the Statute of the African Court of
Justice and Human Rights’.(2015)

16
As is well known, universal jurisdiction provides states with the competence to investigate,

prosecute and judge alleged perpetrators of certain serious crimes under international law –

including genocide, crimes against humanity, war crimes, and torture irrespective of where

the crime took place and the nationality of the perpetrator or the victim.53

The rationale behind it is based on the notion that certain crimes are so harmful to international

interests that states are obliged to bring proceedings against the perpetrator regardless of the

location of the crime and the nationality of the perpetrator or victim. Universal jurisdiction

allows for the trial of international crimes committed by anybody, anywhere in the world. 54

However, instead of endowing the African Court with universal jurisdiction, the Protocol

grants the African Court commonly recognised jurisdiction bases: active personality

jurisdiction (when the accused is a national of a State Party to the Protocol) and

territorial jurisdiction (when the accused committed crime(s) on the territory of a State

Party to the Protocol).55In addition, the Protocol also endows the African Court with less

popular jurisdictional bases:56passive personality jurisdiction (where the victim is a national

of a State Party to the Protocol) and protective jurisdiction (where a vital interest of a

State Party to the Protocol is threatened by extraterritorial conduct of non-nationals).57

Despite its express absence in the Protocol, universal jurisdiction has a potential role to play at

the African Court.58This is due to the Court’s expanded international criminal jurisdiction being

based on the principle of complementarity.59Article 46H of the Protocol replicates the notion

of complementarity as found in Article 17(1) of the Rome Statute. Thus, the Protocol refers to

53
Ibid.
54
Mary Robinson, ’Foreword’, The Princeton Principles on Universal Jurisdiction, Princeton University Press,
Princeton, 2001, p.16
55
Article 46E (a) (b) of the Malabo Protocol.
56
Supra n. 58
57
Article 46E (c) (d) of the Malabo Protocol.
58
Supra n.60
59
Ibid; Article 46H (2) of the Malabo Protocol.

17
“a State which has jurisdiction” over the relevant case. In other words, a case is only

admissible before the African Court if a state with jurisdiction is unwilling or unable to

investigate or prosecute or, alternatively, if an investigation has taken place by a state with

jurisdiction and a decision not to prosecute results from an unwillingness or inability to

prosecute.60

Since the criminal jurisdiction of a state can take the form of any of the various

recognised jurisdictional bases, including universal jurisdiction, where a state, any state, has

vested its courts with universal jurisdiction over the crimes found in the Protocol and her

domestic authorities have exercised this jurisdiction, the African Court could be prevented

from hearing such a case based on the principle of complementarity. It would simply be

a situation where a state with jurisdiction (in this case, universal jurisdiction) is willing

and able to investigate and prosecute the relevant international crimes in the spirit of Article

46H of the Protocol. Such an interpretation of Article 46H is aligned with interpretations of

the relevant provisions of the Rome Statute viz Articles17 and 19.61

It is for this reason that this paper proceeds on the basis that this concept can be used as a

double edged sword viz, it can be used to defeat the operations of the court thus promoting

impunity or on the other hand, it can also be used to promote justice in Africa. The states can

invoke the principle in thwarting an already begun process by the court.

2.6 Conclusion

60
Supra n.60
61
Ibid; W. A. Schabas, ‘Article 17: Issues of Admissibility / Questions relatives à la recevabilité’, The
International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, Oxford,
2010), pp. 340-341

18
The journey of international criminal law in Africa has seen an evolution that is worth

discussing. Of note however is the sui generis court that is meant to try international crimes, a

feat that no continent has achieved so far. This ought to be a laudable move by the African

states because one would agree that for Africa to enhance respect for international criminal

law, such a court is a grist to the mill. The above rendition of the journey of Africa in

international criminal law and the concepts used therein are important in discerning the efficacy

of the court and whether there will be an overlap with the already existing International

Criminal Court.

19
 CHAPTER THREE

AN ENMESHED MARRIAGE BETWEEN AFRICA AND THE INTERNATIONAL

CRIMINAL COURT.

3.0 Introduction

The most essential feature of the evolution of International Criminal Law is the link between

state sovereignty and accountability.62 While the establishment of the ICC challenges the link

between sovereignty and impunity, it does reveal the continuing importance of state

cooperation and compliance.63In this chapter, a discussion of how the relationship between the

ICC and Africa has turned sour prompting non-cooperation from some of the African states

will be advanced. Of primal note is the arguments posited by the African states, through their

heads, and a number of scholars that the court is undermining the international fundamental

principle of state sovereignty by prosecuting African heads of state thus the strained

relationship between the two.

In order to effectively perform its mandate, the ICC needs the support and cooperation of

states.64The international community has, on multiple occasions, declared its determination to

end impunity for the gravest crimes, and cooperation with the ICC is a concrete way to give

effect to that objective.65As the ICC has no police force of its own, it requires States'

cooperation for the enforcement of its orders and is entirely reliant upon them for the execution

of its arrest warrants.66 Unfortunately, several suspects subject to ICC arrest warrants have

successfully evaded arrest for many years, defying the international community's attempts to

62
Steven C. Roach, ‘Politicizing the International Criminal Court: The Convergence of Politics, Ethics, and
Law.’ (2006)
63
Ibid.
64
The Importance of cooperation with the ICC was stressed in the Declaration of the High-level Meeting of the
General Assembly on the Rule of Law at the National and International Levels, A/676/L.1,19 September 2012,
Para. 23.
65
Sang-Hyun Song, ‘The Role of the International Criminal Court in Ending Impunity and Establishing the
Rule of Law.’ (2012).
66
John McManus et al, ’The Cooperation of States with the International Criminal Court.’ (2001)

20
establish the rule of law at the international level. Political will to bring these persons to justice

is crucial.67 Africans felt that the ICC was applying double standards in its prosecution by being

swift against the weak (Africans) and sluggish against the strong (the west).68

3.2 A Change of Heart by Africans on the ICC, majorly informed by the Darfur and

Kenya situations.

African states played a crucial role in the creation of the ICC, 69 demonstrating their initial

support for the Court through widespread ratification of the Rome Statute. Of the 122 States

Parties, 34 are African, the largest regional grouping to have ratified the Statute.70 By 2013,

the relationship soured dramatically, with African states repeatedly threatening to withdraw

from the Court.71 One of the factors that strained the relationship is the ICC’s perceived bias

against Africa, with the indictment of sitting heads of African states emerging as a major point

of contention.72

African countries were initially supportive of the establishment of the ICC and were of the

view that this would be a positive development in global governance.73 The memory of the

Rwandan genocide convinced many African countries of the need to support an international

criminal justice regime such as the ICC.74 African countries also viewed the ICC as a way of

preventing powerful countries from preying on weaker states.75 It is against this backdrop that

many African states united to ensure that there was an overwhelming support for the creation

67
Supra n.62.
68
Mehari Taddele Maru, ‘The International Criminal Court and the African leaders: Deterrence and General
Shift of Attitude.’ (2014)
69
Supra n.44
70
Ibid.
71
Mia Stwart and Karin Krisch, ‘Irreconcilable Differences? : An Analysis of the Standoff between the African
Union and the International Criminal Court.’ (2014) Available at
http://www.elevenjournals.com/tijdschrift/AJ/2014/0/AJ_2352-068X_2014_001_000_003 Accessed on 7th
August 7, 2016.
72
Ibid.
73
T. Murithi, ‘The African Union and the International Criminal Court: An Embattled Relationship?’, Institute
for Justice and Reconciliation (IJR) Policy Brief, March 2013, p. 8.
74
Ibid.
75
Supra n.20

21
of a permanent International Criminal Court that would help end impunity. This oomph was

however established on a quick sand and as demonstrated below, it later turned into a stark

objection and criticism of the same institution that was earlier seen by most Africans as a savior.

The initial discontent of African states was caused primarily by the fact that they were the

object of all of the ICC prosecutors’ investigations.76 To date the Prosecutor has not initiated

prosecutions against any country outside Africa.77 Whereas it can be argued that all

international criminal prosecutions are selective in nature (since it will always be impossible

to prosecute every international crime committed in situations of large scale violations of

human rights and humanitarian law), the Prosecutor’s exclusive focus on Africa has

disappointed and angered many who looked to the Court to provide universal and impartial

justice.78 Moreover, the reasons provided by the ICC in explaining why it has not investigated

situations outside Africa have been unconvincing.79African states have accused the ICC of

prosecuting crimes on the basis of political expediency that will not cause discomfort to the

major funding states.80

3.2.1 The Situation in Darfur.

The issue of immunity arose in 2008, in the case of The Prosecutor v. Omar Hassan Ahmad

al-Bashir,81 when the Prosecutor applied for an arrest warrant for the sitting President of Sudan,

Al Bashir, on charges of war crimes and crimes against humanity. The application was brought

despite the fact that Sudan is not a party to the Rome Statute. Under Article 13(b) of the Statute

the UN Security Council, acting under Chapter 7 of the UN Charter, may refer a situation to

76
Supra n.73
77
Ibid.
78
A. Alamuddin, ‘The Role of the Security Council in Starting and Stopping Cases at the International Criminal
Court’, in A. Zadar& O. Bekou (Eds.), Contemporary Challenges for the International Criminal Court, British
Institute of International and Comparative Law, London, 2014, pp. 109-111.
79
Supra n. Murithi, 2013, p. 3.
80
Ibid.
81
ICC-02/05-01/09.

22
the Prosecutor where one or more of the crimes set out in Article 5 of the Statute appears to

have been committed. The situation in Darfur was referred to the Prosecutor in terms of

Security Council Resolution 1593 (2005), which states that: the Government of Sudan and all

other parties to the conflict in Darfur shall cooperate fully with and provide any necessary

assistance to the Court and the Prosecutor pursuant to this resolution and, while recognising

that States not party to the Rome Statute have no obligation under the Statute, urges all States

and concerned regional and other international organisations to cooperate fully.82

The Security Council not only granted the ICC jurisdiction over the matter notwithstanding

that Sudan is not a party to the Statute, it also obliged Sudan to cooperate with the Court and

the Prosecutor, who would eventually demand the surrender of its head of state.83

The AU Peace and Security Council (PSC) responded by adopting a resolution stressing the

ICC’s complementarity to national jurisdictions, and expressing its firm belief that the pre-trial

chamber’s approval of the warrant could undermine the delicately negotiated efforts of the AU

and the United Nations to resolve the conflict in Sudan.84 Concern was expressed that the

issuance of a warrant may threaten efforts to promote peace and reconciliation, leading to

destabilization and further suffering for the people of Sudan. The Security Council was

requested to defer the proceedings against al-Bashir under Article 16 of the Rome Statute, so

as not to jeopardise ongoing regional peace efforts.85 Notwithstanding the AU’s concerns, the

ICC pre-trial chamber (PTC) decided to issue the arrest warrant for al-Bashir on 4 March 2009,

prompting the PSC to immediately issue a further communiqué lamenting the timing of the

arrest warrant and restating its concern that the ICC process would seriously undermine

82
SC Res. 1593 (2005), para. 2.
83
Supra n.71.
84
Peace and Security Council Communique arising out of its 142 ndMeeting, held on 21 July 2008 in Addis
Ababa, Ethiopia PSC/MIN Comm (CXLII) available at www.iccnow.org/documents/AU_142-communique-
eng.pdf Accessed on 7th August, 2016.
85
Supra n.71.

23
ongoing efforts to achieve peace and security.86The Security Council was again requested to

exercise its powers of deferral over the situation and, once again, it failed to act upon the

request. In light of the above, it is not surprising that at the 13th AU Summit of Heads of State

on 3 July 2009 in Sirte, Libya, African leaders resolved not to co-operate with the ICC in

securing the arrest of al-Bashir.87

The Sirte resolution was perceived as a violation of the Rome Statute and a betrayal of Africa’s

commitment to end impunity for human rights atrocities.88Even among the AU states the

resolution was not wholeheartedly welcomed. Botswana publicly distanced itself from the

resolution in a press release issued the day after the Summit, stating that it “does not agree with

[the AU decision] and wishes to reaffirm its position that as a State Party to the Rome Statute

on the International Criminal Court (ICC) it has treaty obligations to fully cooperate with the

ICC in the arrest and transfer of the President of Sudan to the ICC”.89 After finding itself at the

receiving end of widespread criticism for its support of the resolution, South Africa also

clarified its position at a press conference held after the Sirte resolution, affirming that it would

co-operate with the ICC in the investigation and prosecution of crimes and in the execution of

arrest warrants.90

The AU reiterated its stance of non-cooperation regarding al-Bashir’s arrest warrant at its

summit of 22 July 2010, where the following remarks were made by AU Chairperson and

Malawian President BinguwaMutharika:

To subject a sovereign head of state to a warrant of arrest is undermining African solidarity

and African peace and security that we fought for so many years. There is a general concern in

86
Peace and Security Council Communique arising out if its 175th Meeting, held on 5 March 2009 in Addis
Ababa, Ethiopia PSC/PR/Comm. (CLXXV) available at www.peaceau.org/uploads/iccarrestwarranteng.pdf
Accessed on 7th August, 2016.
87
Ibid.
88
Supra n.44
89
Ibid.
90
Ibid.

24
Africa that the issuance of a warrant of arrest for al-Bashir, a duly elected president, is a

violation of the principles of sovereignty guaranteed under the United Nations and under the

African Union Charter. Maybe there are other ways of addressing this problem.91

3.2.2 The Situation in Kenya.

The immunity debate was again highlighted in connection with the Situation in the Republic

of Kenya, which arose when the announcement of the 2007 presidential election results sparked

a wave of ethnic violence across the country, eventually leaving over 1,000 people dead.92 A

coalition government was formed after AU mediators brokered a power sharing deal between

incumbent President MwaiKibaki of the Party of National Unity (PNU) and Prime Minister

RailaOdinga of the Orange Democratic Movement (ODM).93 The coalition agreed to initiate

an investigation into the violence, and a commission of inquiry was established for this

purpose. The commission reported unprecedented and widespread acts of planned and also

spontaneous violence throughout Kenya, recommending that a domestic tribunal be created to

prosecute the instigators or alternatively, that a list of suspects be forwarded to ICC Prosecutor

Moreno-Ocampo for possible investigation and prosecution.94

When the proposed bill to establish a tribunal was rejected by Kenyan lawmakers, 95a sealed

envelope containing a list of suspects was delivered to the Prosecutor,96 and after further

inaction by the Kenyan government, Moreno-Ocampo applied to the PTC for judicial

91
Ibid.
92
Supra n.71.
93
Ibid.
94
27 Report of the Commission of Enquiry into Post Election Violence 473, available at
http://reliefweb.int/sites/reliefweb.int/files/resources/15A00F569813F4D549257607001F459D-Full_Report.pdf
Accessed on 7th August, 2016.
95
T. Miller-Sporrer, ‘Kenya Parliament Rejects Bills Establishing Election Tribunal’, The Jurist, available at
http://jurist.org/paperchase/2009/02/kenya-parliament-rejects-bills.phpAccessed on 7th August, 2016.
96
ICC Press Release on 9 July 2009, ‘ICC Prosecutor Receives Sealed Envelope from Kofi Annan on Post-
Election Violence in Kenya’, available at www.icc-cpi.int/en_menus/icc/situations and cases/situations/situation
icc 0109/press releases/Pages/pr436.aspxAccessed on 7th August, 2016.

25
authorisation to investigate the post-election violence.97 The request was granted in March

2010, authorising the Court’s first propriomotu investigation of a situation. Summonses were

issued to six individuals: Uhuru Muigai Kenyatta, Francis KirimiMuthaura, Mohammed

Hussein Ali, William Samoei Ruto, Henry Kiprono Kosgey and Joshua Sang.98

The Kenyan government challenged the admissibility of the cases,99 arguing that domestic legal

reforms, including the new Kenyan Constitution, paved the way for Kenya to conduct its own

prosecutions in relation to the post-election violence and that the cases were therefore

inadmissible under Article 17(1)(a) of the Statute.33 The PTC rejected this argument on the

basis that Kenya had failed to provide concrete evidence that it had initiated any investigations

or prosecutions into the matters before the Court,100 a finding that was subsequently confirmed

by the Appeals Chamber.101

Following national elections in March 2013, Kenyatta became President and Ruto Vice-

President of Kenya. At the AU Assembly two months later, the view was expressed that the

ongoing prosecution of Kenyatta and Ruto undermined the sovereignty of the people of Kenya

(who expressed their democratic will to be represented by the two accused) and threatened the

country’s process of reconciliation.

97
ICC-01/09 Request for authorisation of an investigation pursuant to Art. 15 available at www.icc-
cpi.int/iccdocs/doc/doc785972.pdf Accessed on 7th August, 2016.
98
Situation on the Republic of Kenya ICC-01/09-01/11, Decision on the Prosecutor’s Application for
Summonses to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 8 March 2011.
99
C. Jalloh, ‘Situation in Republic of Kenya, No. ICC-01/09-02/11-274; Judgment on Kenya’s Appeal of
Decision Denying Admissibility’, American Journal of International Law, Vol. 106, 2012, p. 119.
100
Decision of the Pre Trial Chamber available
at<www.haguejusticeportal.net/Docs/ICC/Kenya/RulingonAdmissibilityMuthaura,AliandKenyatta.pdf> and
www.haguejusticeportal.net/Docs/ICC/Kenya/RulingonAdmissibility/Ruto, Kosgey and Sang.pdfAccessed on
7th August, 2016.
101
Decision of the Appeals Chamber, available at www.icc-cpi.int/iccdocs/doc/doc1223134.pdfAccessed on 7th
August, 2016.

26
Reiterating the points initially raised by the Kenyan Government regarding the ICC’s

complementary jurisdiction, the AU adopted a decision requesting the ICC to refer the

Kenyatta and Ruto cases back to Kenya.

Africans, through the African Union were disgruntled on how the ICC handled the two

situations and the role in which the United Nations Security Council played in the whole

process. Consequently, Africans have been skeptical about the ICC and thus perceiving is as

an oppression tool and an impediment to their desire to establish peace and reconciliation in

the continent. The following are factors that can be deduced from the two situations which can

rightfully be argued to have strained the relationship further.

3.3 Salient Factors that led to the strained relationship between the African Union and

the International Criminal Court.

3.3.1 The ICC is a ‘Western Court’ that is unfairly focused on Africa.

The suggestion that the ICC is a hegemonic tool of western powers which is targeting

or discriminating against Africa, has been expressed in various fora. For instance, the

chairperson of the AU Commission, Jean Ping, reportedly expressed Africa’s

disappointment with the ICC in noting that rather than pursuing justice around the world

including in cases such as Colombia,Sri Lanka and Iraq, the ICC was focusing only on Africa

and was undermining rather than assisting African efforts to solve its problems.102While

purporting to confirm that the AU is not against international justice, Jean Ping has apparently

lamented that it seems that Africa has become a laboratory to test the new international law.

MahmoodMamdani on the other hand has proclaimed the more sophisticated (but also related)

notion that the ICC is part of some new ‘international humanitarian order’ in which there is the

worrying emphasis on big powers as enforcers of justice internationally.103While the

102
Max du Plessis, ‘The International Criminal Court that Africa wants.’ Institute for Security Studies. (2015)
103
Ibid.

27
importance of international criminal law for the African continent isstarkly highlighted by a

former senior legal adviser of the ICC’s Registry:

No other continent has paid more dearly than Africa for the absence of legitimate
institutions of law and accountability, resulting in a culture of impunity. Events
in Rwanda were a grim reminder that such atrocities could be repeated anytime.
This served to strengthen Africa’s determination and commitment to the creation
of a permanent, impartial, effective and independent judicial mechanism to try
and punish the perpetrators of these types of crimes whenever they occur.104
The Rwandan President, Paul Kagame, has vented out a different opinion on the role of the

ICC in Africa portraying it as portraying the ICC as a new form of ‘imperialism that seeks to

undermine people from poor and African countries, and other powerless countries in

terms of economic development and politics.105

3.3.2 Argument that the ICC is thwarting African efforts to deal with atrocities on the

continent.

The suggestion that the ICC’s work in Africa is undermining rather than assisting African

efforts to solve the continent’s problems is a complaint vocalised by the AU andin this regard

the Sudan referral is an illustrative example.106 In its press release following the 3 July 2009

decision in Sirte, the AU explained that its decision: ‘Bears testimony to the glaring reality that

the situation in Darfur is too serious and complex an issue to be resolved without

recourse to an harmonized approach to justice and peace, neither of which should be pursued

at the expense of the other’.107The press release further stressed the ‘unflinching commitment

of AU member states to combating impunity and promoting democracy’, and thatthe3rd July

2009 decision ‘underlines the need to empower the African Court on Human and Peoples’

104
Charles Jalloh, ‘Regionalizing international criminal law?’, International Criminal Law Review 9
(2009), pp. 445–499
105
Rwanda’s Kagame says ICC targeting poor, African countries, AFP, July 31 2008; Rwandan President
dismisses ICC as court meant to ‘undermine’ Africa, Rwanda Radio via BBC Monitoring, August 1 2008.
See also Oraib Al Rantawi, A step forward or backward? Bitter Lemons, 32, 6, August 14 2008, available at
http://www.bitterlemons-international.org/inside.php?id=982 Accessed on 18th August 2016.
106
Supra n. 66.
107
African Union Press Release, Decision of the Meeting of African States Parties to the Rome Statute of the
International Criminal Court, Addis Ababa 14 July 2009.

28
Rights to deal with serious crimes of international concern in a manner complementary to

national jurisdiction’.108

According to Plessis, the suggestion is threefold:109

 There is a desire in Africa for an ICC process that presents or respects ‘a harmonized

approach to justice and peace’.

 Africa wants its calls for a Security Council deferral of the Sudan investigation to be

taken seriously, indeed acceded to.

 Hopes have been placed in an empowered African court to deal with international

crimes as plausible alternative to the ICC (and an alternative that might apparently

deprive the ICC of its jurisdiction at least in respect of African situations).

Each of these suggestions ultimately arises from a preference expressed by the AU for African

solutions to African problems, and in particular for African peace efforts on the continent not

to be undermined by the ICC.110

3.3.3 The Security Council’s Double-Standard.

Increasingly now in the forefront of international political discourse around the ICC, certainly

within the AU, is the fact that international criminal justice is subject to the uneven and

imbalanced landscape of global politics.111For Africa, a key concern in this regard is the

relationship between the Security Council and the ICC, specifically the council’s powers of

referral and deferral under the Rome Statute; articles 13 and 16.The skewed institutional power

of the Security Council creates an environment in which it is more likely that action will be

taken against accused from weaker states than those from powerful states, or those protected

108
Ibid.
109
Supra n.66.
110
Ibid.
111
Ibid.

29
by powerful states. Thus the perception is that by referring the Darfur situation to the ICC but

not acting in relation to, for instance, Israel, the council, through certain influential member, is

guilty of double-standards.112

This imbalance fuels concerns that international criminal justice mechanisms threaten state

sovereignty. It also applies to the ICC which, although being a treaty body, is still subject to

the chapter VII referral and deferral powers of the Security Council.113

The deferral of cases (situations as they are referred to under the Rome statute) by the UN

Security council, has faced sharp criticism from African states mainly because it pays no regard

to immunity for heads of states and governments. It has also been seen as a tool used to usurp

African states of their sovereignty. It is therefore important to understand the concept of

immunity for heads of states and governments and senior officers in light of its application

under the Rome Statute and how the Malabo Protocol intends to deal with it.

3.3.4.A Immunity for Heads of States and Governments and Senior Government

Officials.

One of the founding principles on which the AU, through its Constitutive Act, is apparently

based is ‘condemnation and rejection of impunity’.114 Indeed, each of the decisions of the AU

Assembly dealing with the ICC has contained a clause reaffirming a commitment to fight

impunity. That of July 2012 is typical:115

The Assembly … reiterates [the AU’s] commitment to fight impunity in

conformity with the provisions of Article 4(h) and 4(o) of the Constitutive Act of
the African Union and underscores the importance of putting the interests of
victims at the centre of all actions in sustaining the fight against impunity.

112
Ibid. pp.67.
113
Ibid.
114
Garth Abraham, ‘Africa’s Evolving Court Structures: At the Crossroads?’ Occasional Paper 209 (2015) ;
Article 4(o) of the Constitutive Act of the African Union, Adopted on 11 th July 2000, entered into force on 26th
May 200.
115
Ibid Africa’s Evolving Court Structures: At the Crossroads?

30
Paradoxically, however, that commitment is qualified: heads of state and senior government

officials are to enjoy immunity. Article 46 Abisof the Malabo Protocol postulates: 116

No charges shall be commenced or continued before the Court against any serving
AU 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.
It would then follow that the main motivating factor of having an African court that tries

international crimes, is to wield the heads of states and senior government officials from

prosecution.The dominant view among Africa’s leaders as reflected in the position of the AU

is that heads of state and senior state officials must be accorded absolute immunity. 117 Indeed,

while African states themselves have failed seriously to embrace the exercise of universal

jurisdiction against high ranking officials whether in or out of office charged with the

commission of international crimes, it was the use of universal jurisdiction against senior

Rwandese officials a decade ago that sparked the initial call for an African court with

jurisdiction over international crimes.118The ICC’s indictment of Al Bashir and latterly

Kenyatta and Ruto further provoked sufficient outrage to form the basis for the charge by some

African leaders that the ICC was biased against Africa.

In 2012 the AU Assembly endorsed a request for an advisory opinion from the ICC ‘on the

question of immunities, under international law, of Heads of State and senior state officials

from states that are not Parties to the Rome Statute of the ICC’.119At its Extraordinary Summit

in October 2013, the Assembly formally decided that ‘no charges shall be commenced or

continued before any International Court or Tribunal against any serving AU Head of State or

Government or anybody acting or entitled to act in such capacity during their term of

116
AU, The Report, the Draft Legal Instruments and Recommendations of the Specialized Technical
Committee on Justice and Legal Affairs, op. cit., article 46 A bis.
117
Supra n.66 Garth Abraham.
118
Ibid.
119
Supra n. 68.

31
office’.120A decision of the 22nd Ordinary Session of the Assembly, in January 2014, called on

AU states parties to the Rome Statute to support amendments to Article 27 to preclude

prosecution of HSOG.121The amendment sought by Kenya is the inclusion of Article 27(3):

‘Notwithstanding paragraph 1 and 2 above, serving heads of states, their deputies and anybody

acting, or entitled to act as such, may be exempted from prosecution during their current term

of office.

The foregoing claims have a direct link with how the ICC relates with Africa. Other scholars

have argued that the desire to have an ‘African Criminal Court’ precedes the embroiled

relationship that exists between the African Union and the ICC.There are at least three

fundamental bases to support the prosecution of international crimes by the African regional

court which are unrelated with the trite bitter relationship between Africa states and the ICC.122

These are:

i) a historical necessity for such a court to prosecute crimes which are committed in

Africa but which are of no prosecutorial interest to the rest of the world;

ii) a treaty obligation to prosecute international crimes in Africa;

iii) the existence of crimes peculiar to Africa but over which global international

criminal tribunals, such as the ICC, have no jurisdiction

i) Historical Necessity for Prosecuting International Crimes in Africa

For most commentators, Africa’s quest for its regional court to prosecute international crimes

was politically motivated and began as a consequence of the AU/ICC fallout over Al Bashir’s

120
AU, Decision on Africa’s Relationship with the International Criminal Court (ICC), Ext/Assembly/
AU/Dec.1, <http://www.iccnow.org/documents/Ext_Assembly_AU_Dec_Decl_12Oct2013.pdf> Accessed on
30th June, 2016.
121
AU, Decision on the Progress Report of the Commission on the Implementation of the Decisions on the
International Criminal Court, Assembly/AU/13(XXII) Assembly/AU/Dec.493(XXII),
http://www.africapartnershipforum.org/Assembly%20AU%20Dec%20490-519%20(XXII)%20_E.PDF
Accessed on 30th June, 2016.
122
Ademola Abass, ‘International Crimes in Africa: Rationale, Prospects and Challenges.’(2016).

32
arrest warrant.123While there is no denying that the Al Bashir affair exacerbated Africa’s desire

to prosecute international crimes, it is misleading to conclude that this episode lies at the

foundation of Africa’s quest for international criminal jurisdiction.124Africa first expressed a

desire to prosecute international crimes in the 1970s during the discussion on the African

Charter on Human and Peoples’ Rights.125

The proposal to prosecute international crimes in 1970s Africa was primordially motivated by

the crime of apartheid in South Africa, which the UN General Assembly had in 1966 labelled

a crime against humanity, 126a determination affirmed by the Security Council in 1984.127From

1948 until 1990 apartheid existed as an international crime, but there was no international

criminal court that could prosecute it.128

This was left to States to enact legislation to enable them to prosecute apartheid criminals on

the basis of a form of universal jurisdiction.129Ademola ergo argues that the impact this ‘dupe’,

so to speak, had on Africans was significant, but it underscored the fact that not every crime

committed in Africa would be of prosecutorial interest to the rest of humanity.130

ii). The Establishment of International Criminal Prosecution in Africa is a Legal

Obligation

A distinct legal basis for prosecuting international crimes in Africa derives from the obligation

incurred by the AU under its Constitutive Act (AU Act) and other treaties to prosecute crimes

123
Supra n.94.
124
Ibid.
125
M’Baye, ‘Introduction’ to Draft African Charter on Human and Peoples’ Rights’, OAU Doc.
CAB/LEG/67/1, at para. 4
126
UN GA Res 2202 A (XXI), 16 Dec. 1966.
127
UN Doc. S/RES/556 (1984) adopted 23 Oct. 1984.
128
Supra n.94.
129
J. Dugard, ‘International Convention on the Suppression and Punishment of the Crime of
Apartheid’ (2008), available at: http://untreaty.un.org/cod/avl/ha/cspca/cspca.html. Accessed on 18th August
2016.
130
Supra n.94.

33
prescribed in those treaties.131Article 4(h) of the AU Act provides for ‘the right of the Union to

intervene in a Member State pursuant to a decision of the Assembly in respect of grave

circumstances, namely: war crimes, genocide and crimes against humanity as well as a serious

threat to legitimate order to restore peace and stability to the Member State of the Union upon

the recommendation of the Peace and Security Council’. These crimes are, with the exception

of ‘threat to legitimate order’ (which is a new crime added to the provision by virtue of an

amendment in 2003), the same crimes over which the ICC has jurisdiction.132

The proscription of the foregoing international crimes by the AU Act necessarily implies the

obligation to take measures to redress violations. It cannot be the case that with its Constitutive

Act the AU legislates on crimes it does not intend its own court to prosecute.

iii) The Obligation to Prosecute Crimes Peculiar to African States

Aside from the general obligation to prosecute all crimes proscribed by its treaties, the AU

incurs a distinct obligation to prosecute crimes which are peculiar to Africa but over which the

ICC has no jurisdiction. The non-inclusion of such crimes in the ICC jurisdiction could be

attributable either to a perception among a great majority of ICC States Parties that such acts

do not constitute international crimes at all, or to a perception that these international crimes

are not ‘serious’ enough for the purposes of the ICC.133

Although there are a number of crimes that are peculiar to Africa, there is one crime that is

worth mentioning because its importance, to wit, the crime of Unconstitutional changes of

government (UCGs). Unconstitutional changes of government (UCGs) are undoubtedly one of

the most common sources of conflict in Africa, howsoever they are brought about. 134The

131
Ibid.
132
Ibid.
133
Supra n.94.
134
Karin Forander, ‘Dealing with Unconstitutional changes of government: The African Union way’.(2010)

34
rampant menace of the unconstitutional takeover of government and its direct impact on the

peace and stability of African countries drove the AU to adopt the African Charter on

Democracy, Election, and Governance (ACDEG) in 2003.135

The treaty entered into force in February 2012. Through Article 23 of ACDEG the AU lists

and criminalizes the various acts constituting UCG,136in the hope of promoting a greater respect

for the rule of law and inducing a concomitant reduction in the prevalence of armed

conflicts.137The Rome Statute is limited to the most serious international crimes, which,

although common to the whole of humanity, are often committed in the aftermath of the

breakdown of law and order.Hence, one could say that while the ICC prosecutes crimes mostly

committed after violence or disorder has already ensued in a state, by criminalizing UCG the

AU aims to prevent the occurrence of such crimes ab initio through the proscription of acts that

may precipitate violence and disorder in a state.138

3.5 Conclusion.

The intention by African states to establish a Continental Criminal Court dates back to the

1970s. This desire was never pronounced back then as it is now, thanks to the strained

relationship between the International Criminal Court and African states. It is worth noting that

the fallout between the two only deepened the desire to have the sui generis court. Africa has

been grappling with the intent of establishing its own criminal court that would not only help

them solve their problem with the ICC but also, solve the perennial problem of civil unrest

within the continent.

135
Assembly/AU/Dec. 147 (VIII) (2007).
136
Art. 28 (E) (1) (D) of the Draft Protocol.
137
Supra n.107, preamble to the Charter on Democracy.
138
Supra n.95.

35
 CHAPTER FOUR

CONCLUSIONS AND RECOMMENDATIONS

4.0 Conclusion.

The decision of the African Union to establish an African court that will prosecute international

crimes perpetrated in its continent is not a mean feat. The white elephant in the house however

is the ability of the court to investigate and prosecute crimes relating to anyone regardless of

their status. Whether the Court can perform this duty in respect of African heads of state and

senior government officials, who cannot be expected to be brought before their national courts,

either because of immunity or because they are shielded by the deployment of raw political

force, remains to be seen. The Protocol has expressly excluded heads of states and governments

and senior government officials from prosecution, the question is whether it can prosecute them

even after they leave office.

The African Union might be having good intentions in ending impunity, but it is just but an

abstract entity which is made of states, these states are headed by leaders who more often than

not are the perpetrators of violence. It could have been unrealistic to expect Al Bashir or

Gaddafi to have been prosecuted by their national courts when they ideally controlled the

domestic legal system. A lesson learnt from this and other situations like that of the cat-and-

mouse game of the Ugandan regime and the LRA before the referral of the case to the ICC, is

that domestic justice may not be suitable where potential culprits have as much or even more

fire power than the state, or where the government is itself morally compromised.

The Al Bashir affair is believed to be the final stroke that broke the relationship between the

ICC and Africa but the relationship had already strained and it was just but a ticking bomb.

Many have argued that had the ICC and the Africa Union not fallen out over the Al Bashir

36
affair, they would probably still have done so over a different issue. The ICC as established by

the Rome statute is court designed to prosecute crimes of serious concern that shocks the

conscience of humanity which in most cases are perpetrated after a complete breakdown of law

and order in a country. Genocide, war crimes, and crimes against humanity are all crimes

mostly committed during an ugly interface in human society at the outbreak of violence. These

crimes rarely committed in times of law and order. Plessis while analysing the relationship

between the ICC and the African court, he argues that what the African Union urgently requires

today is a court that can prosecute crimes the occurrence of which may lead to the breakdown

of law and order if not prevented and one such crime is UCG.

As discussed in the previous chapter, UCG is a crime peculiar to Africans and in not

countenancing such a crime, the international community ignores the pedigree of particular

international law. Although the popularity of ‘regional custom’ has waned considerably in

modern times, its attraction has not diminished.139It allows a few states existing in a given

region, bound together perhaps by the same culture or other common attributes, to recognize

certain practices amongst themselves as constituting international law. The ICJ recognized this

practice in the Asylum case between Peru and Colombia.140 Although it rejected the Peruvian

claim on evidential grounds, the Court never doubted that such a principle in fact existed it

only stressed that its existence must be rigorously proved by the state alleging it as manifesting

the necessary opiniojuris.141

It is based on this premise that this paper concludes that the need to establish an international

court that can prosecute such a crime is a judicious call. The occurrence and recurrence of the

crime needs an immediate international attention which can only be given by an institution

139
Supra n. 157
140
Asylum (Colombia v. Peru) [1950] ICJ Rep 266.
141
Ibid. at 277.

37
created by the people who understand it best. Although danger lurks in letting AU constitute

an institution that will be acting as a watchdog to itself. It can be seen as warden turn poacher

and in taming it, the AU through its leaders may frustrate the entire process and make it

worthless. The African Court of Human Rights has been termed as a toothless dog that makes

judgments that are not implemented, it then begs the question, how different will the newly

established chamber work especially when state cooperation is key to its efficiency in

operation?

The merger of the court and extension of the jurisdiction to cover international crimes is not an

entire lose for Africa as some scholars make it look like. The implications of this merger and

extension have to be streamlined in order to serve the aspirations and needs of the African

people not only its leaders. An Africa with African solutions is a venture that should be

canonized rather than being demonized. Africans have had this twisted mentality that

everything western is civilized and everything African is crude and uncivilized. This

mentality should be removed by Africans understanding that it is possible to foster an Africa

which uphold and respects human rights. This mentality is at its best, as Ngugiwa Thiong’o

puts it, a colonization of the mind. Africans should therefore break these chains and in venting

Readdy Kay’s sentiments in his short story ‘Breaking loose’, they should proudly embrace their

culture but as they even do so, ensure that justice thrives in the continent.

In the interests of victims it is essential to address the current deadlock between the AU and

ICC. The ICC and its African states parties have to enter into a serious and constructive

dialogue. The ICC must earnestly tackle the perception of bias against the continent; it is worth

noting that all eight current official investigations by the ICC are in Africa.142 In R v Sussex

142
Tim Murithi, ‘The African Union and the International criminal court: An embattled Relationship?’ Institute
for Justice and Reconciliation (IRC) (2013) 8 Policy Brief, 4.

38
Justices, Exparte McCarthy,143 a seminal aphorism was engendered stating that, justice should

not only be done, but should manifestly and undoubtedly be seen to be done. This principle

works also on how the ICC conducts its investigations and prosecutions. The decry from most

African states that it is only targeting African states and thus being used as a western tool can

never be wished away.

A balance however has to be struck. It is not the ICC that is primarily responsible for its skewed

caseload by having its focus tilted towards Africa. The combined territory of African states

parties constitutes the largest geographical area within which atrocities are alleged to have been

committed. Asian and Arab states have been much more reluctant to join the Rome Statute.

Therefore, for example, because the countries concerned are not states parties, atrocities

allegedly committed in Israel, Palestine, Sri Lanka or Syria cannot be investigated without

Security Council referral; the possibilities for such referrals, however, are plagued by rivalries

between the permanent members of the Security Council. The UNSC has also been a thorn in

the flesh or a rather a stumbling block standing on the way of international criminal justice. It

has been seen to be less favourable to leaders of states which they have an interest in. For

instance, the Muammar and Al Bashir cases have been said to classical examples where the

‘powerful’ states, that permanently sit at the UNSC want to destabilize states so s to gain access

to their resources. Libya and Sudan are said to be rich in oil therefore attracting admiration and

desire from the west only for such desire to be thwarted by the astute leaders of the respective

states.

Nevertheless, as token of its impartiality the ICC needs rigorously to pursue preliminary

investigations initiated beyond the African continent, for example those in Afghanistan,

143
1KB 256, [1923] All

39
Colombia, Georgia, Honduras and Ukraine.144African states parties, for their part, need to stop

politicking against the ICC.It is all too apparent that it is not the victims who complain of ICC

bias against Africa; it is the threatened political elite. Besides, the ICC is a court of last resort.

If African states are sincerely committed to putting an end to a culture of impunity, the ICC

has limited relevance and the continent must itself build a credible system of international

criminal justice. Such a system starts with the national court of the territorial state, because it

is on this structure that the primary obligation to investigate and prosecute international crimes

rests. As the late Italian international law specialist Antonio Cassese observed: It is healthy, it

was thought, to leave the vast majority of cases concerning international crimes to national

courts, which may properly exercise their jurisdiction based in a link with the case

(territoriality, nationality) or even universality. Among other things, these national courts may

have more means available to collect the necessary evidence and to lay their hands on the

accused.

Further, if the expanded court contemplated in the Malabo Protocol is not to become an empty

and ineffectual shell that fails positively to contribute to the prosecution of international crimes,

efforts must be made appropriately to integrate it into ICC complementarity structures. African

states will also have to ensure that the Malabo Protocol is allowed to function properly: it will

have to be comprehensively funded, its political independence has to be guaranteed and,

perhaps crucially, its Article 46 Abisgranting heads of state immunity, should be deleted. This

Article threatens the gains that have been achieved in the international arena and may plunge

Africa that immensely supported the adoption of the Rome statute which in it contained Article

17 that does not grant immunity to leaders who commit serious international crimes back into

the dark days. The Malabo protocol can therefore be a solution to the African problems only if

144
Preliminary investigations continue in respect of two additional African states parties, Guinea and Nigeria; a
second investigation has been launched in the CAR.

40
a few changes are to be made to the instrument itself and even to the Rome statute. It however

remains to be a hoax if it is inly used to fight the ICC and shield African leaders from the ICC

claws.

4.1 Recommendations.

4.1.1 Introduction.

After a careful analysis on the Salient features of the Malabo Protocol and the subsisting

relationship between the African Union and the International Criminal Court, this paper shall

give a detailed recommendation on what ought to be done as a balancing act to ensure that the

relationship does not degenerate into an irreconcilable stage. This paper suggests some of the

key areas that need to be addressed by the African Union and the ICC, have changes made if

necessary, so as to have mutual respect and coexistence between the two.

An African Criminal Court can only live to serve the African continent thus having territorial

jurisdiction in Africa. Although this will be the first regional criminal court seized with the

jurisdiction to try crimes similar to those tried in the ICC, its inception should not be wished

away. This Chapter makes proposals on the necessary changes that should be made to the Rome

Statute, especially on the provision of the principle of complementarity, argues why the

existence of such a court (the ‘African Criminal Court’) is important in serving African peculiar

problems and lastly, African states should not pull out of the ICC but rather cooperate with it

and extend that cooperation to the newly established sui generis court in Africa. In doing so, a

legality of African Criminal Prosecution vis-à-vis the Rome statute will be briefly discussed,

this is to lay a foundation of the recommendations made herein. From the foregoing, there are

four key areas of discussion where three are recommendations, to wit:

41
 A. Legality of African Criminal Prosecution vis-à-vis the Rome Statute.

B. An amendment to the Rome Statute on the principle of Complementarity

C. The need to have a court that prosecutes crimes of serious concern that are only peculiar

to Africans and the ICC has got no jurisdiction over.

D. A need to address the relationship between the African Court and the ICC.

4.1.2 Legality of African Criminal Prosecution vis-à-vis the Rome Statute.

There are those who challenge the legality of the proposed international criminal jurisdiction

for the African Court on the basis of ‘incompatibility with the Rome Statute’ and they draw

support partly from the opinion of the Committee of African Eminent Jurists on the Hissène

Habré case, and partly from the complementarity principle of the Rome Statute.145After

proposing the establishment of the African Court of Justice, the Committee said:

this new body be granted jurisdiction to undertake criminal trials for crimes against
humanity, war crimes and violations of Convention Against Torture … [and] that there
is room in the Rome Statute for such a development and that it would not be a
duplication of the work of the International Criminal Court.146
There is concern that the court will just be doing what the ICC does and this makes it facade

used by the AU as opposed to what it is purported to be, an African court tending to the African

perennial problems. The need to justify the existence of the African international criminal

jurisdiction with reference to the provisions of the Rome Statute has also been linked to the

‘principle of complementarity’ in the Rome Statute.147 As argued, ‘the Rome Statute only

envisaged national criminal jurisdiction and not regional or sub-regional criminal jurisdictions

in so far as the question of complementarity is concerned.148 Thus, the Rome Statute does not

expressly allow or even imply that regional courts such as the proposed Criminal Chamber be

conferred with jurisdiction to try international crimes that are under the jurisdiction of the ICC.

145
Supra n.3
146
Ibid. Para 35
147
Supra n.122
148
Supra n.3

42
In the light of this view, the Murungu then asks, ‘Does the proposed Criminal Chamber have a

legal basis under the ICC Statute?’149

In responding to this question, Adema posits that an inquiry into the legality of the proposed

international criminal jurisdiction in Africa with reference to the Rome Statute is fallacious,

fundamentally mistaken and unscrupulous in international law.150No provision of the Statute

forbids its States Parties from concluding other treaties, even if those were to establish courts

of a similar nature to the ICC. The Rome Statute is not a primus inter pares among treaties and

cannot fetter the competence of its States Parties to deploy their consent in international

law.151It is but a manifestation of uncritical appraisal now to regard the Rome Statute as the

fons et origo of all international crimes and their international prosecution.152 In essence Adema

argues, and rightly so, that the Rome Statute cannot be used as a yardstick of determining the

legality of the ‘African Criminal Court’ that is established by another multilateral treaty.

Before the creation of the ICC, the International Criminal Tribunals for the Former Yugoslavia

and Rwanda (ICTY, ICTR) prosecuted the same crimes that the ICC now does, even if those

two had a more limited mandate. No one has argued that the creation of those two tribunals

extinguished the right of other international tribunals to prosecute the same crimes, lest the ICC

would be the poorer for it.153

There are two well-known situations in international law in which the legality of a subsequent

treaty may be determined by reference to a pre-existing treaty.154 First, where the States Parties

to a treaty decide to conclude another treaty which establishes obligations similar to those in

the previous treaty, the only legal requirement they must satisfy is that their obligations under

149
Ibid.
150
Supra n.122
151
Ibid.
152
Ibid.
153
Ibid.
154
Adema, p.72.

43
the later treaty do not conflict with obligations assumed under the previous treaty, especially if

there is a specific provision in the preexisting treaty to that effect.155Thus, Article 103 of the

UN Charter states:

In the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall prevail.
The Rome statute does not have a provision that is akin to Article 103 of the UN Charter.

Secondly, if a pre-existing treaty embodies a jus cogens obligation, then States Parties to that

treaty are forbidden to conclude another treaty containing a provision that violates a peremptory

norm.156

The Malabo protocol falls short of these disqualification factors that have been espoused by

Adema and thus any argument challenging the legality of the court created by the protocol is

unassailable under International Law.

4.1.3 An Amendment to both the Rome Statute and the Malabo Protocol on the Principle

of Complementarity.

The principle of complementarity is a functional principle aimed at granting jurisdiction to a

subsidiary body when the main body fails to exercise its primacy jurisdiction.157 It is a principle

of priority among several bodies to exercise jurisdiction.158 This principle allows national

courts to try individuals indicted of grave violations of international criminal law before

international tribunals step in. International tribunals will then try such individuals if the

national courts are unable or unwilling to try such individuals.This principle is the cornerstone

of the relationship between the ICC and national jurisdictions. Paragraph 10 of the Rome

155
Ibid.
156
Ibid.
157
Supra n.9
158
Supra n.10

44
statute preamble and Articles 17, 18, 20 and 53 clearly postulate that the ICC is of an ultima

ratio jurisdiction.

The Rome Statute only recognizes a two-tier jurisdiction, that is, national jurisdiction and the

International jurisdiction that is to be handled by the ICC. Regional jurisdiction to try

international crimes does not feature anywhere in the principle of complementarity as couched

by the Rome Statute. It is for this reason that the paper proposes an amendment be done to the

Rome Statute factoring in a regional criminal court. The statute provides room for amendments

to its provisions which must be proposed, adopted and ratified an accordance to articles 121

and 122 of the Statute.

4.1.3.1 The Principle of Complementarity as provided for under the Malabo Protocol.

It is provided for under Article 46 (2) (b) of the Malabo Protocol stating that ‘the jurisdiction

of the Court shall be complementary to that of the National Courts, and to the Courts of the

Regional Economic Communities (REC) where specifically provided for by the Communities’.

Impliedly the African Court can accept a case, not only after the national court of an indicted

person has proved ‘unwilling’ or ‘unable’ to prosecute, but also after an REC court has also

failed to prosecute that person.159Thus, instead of the scheme of complementarity under the

Rome Statue, which makes a case admissible once a national court has failed the twin criteria,

admissibility of cases to the African Court requires the ‘double failure’ of national courts and

RECs under the same twin standard.160

A close reading of the Article 46 provision on complementarity discloses a serious loophole

relating to the requirement of ‘inability to prosecute’.161 The formula adopted in the Rome

Statute is that there must be ‘genuine’ inability to prosecute. The word ‘genuine’ serves to

159
Supra n.148
160
Ibid.
161
Ibid.

45
prevent a trivialization of that criterion by states. However, the formula adopted by the draft

protocol dispenses with ‘genuineness’. The non-qualification of ‘inability to prosecute’

dangerously lowers the evidentiary standard of ‘inability’ and may seriously undermine that

criterion. It implies that African states will easily avoid prosecuting their nationals and offload

such cases on to the African Court, thereby unduly burdening the Court and making it a Court

of first rather than last resort.162 An amendment to the same is thus proposed and if possible

the wording of the Rome Statute adopted.

4.1.4 The need to have a court that prosecutes crimes of serious concern that are only

peculiar to Africans and which the ICC has got no jurisdiction over.

There are a number of crimes that are peculiar to Africans but one of them is worth mentioning

because of its importance, especially in this research paper when the relationship between the

African court and the ICC is key. Unconstitutional changes of government (UCGs) are

undoubtedly one of the most common sources of conflict in Africa, howsoever they are brought

about. The examples of Zimbabwe’s Mugabe, Kenya’s Kibaki and Ivory Coast’s Gbagbo
163
readily come to mind. Africa has plunged into civil wars after general elections that have

had their results contested leading to Africans preying on their fellow men. This has been the

order of most African states where leaders have even defied constitutional provisions that

require them to vacate office after a certain period of time, for instance what transpired in

Burundi in 2016. If one may doubt what the unconstitutional change of government might do

then a quick reference should be made to Rwanda where about 800,000 souls were lost in a

civil war. This story can only be told better in Africa and maybe by an African.

162
Ibid; the regional court just like the ICC should step in once there has been an attempt to prosecute
international crimes of serious concern to no avail or there is no such step that has been taken due to the
unwillingness from the stat. This is not only meant to respect the sovereignty of states but also helps in ensuring
that the court is not presented with a lot of cases, some of which can be handled by national courts, thus leading
to backlog of cases that will consequently deny justice to the victims.
163
Garth Abraham, ‘Africa’s Evolving Court Structures: At the Crossroads?’ Occasional Paper 209 (2015)

46
The Rome Statute is limited to the most serious international crimes, which, although common

to the whole of humanity, are often committed in the aftermath of the breakdown of law and

order.164Hence, one could say that while the ICC prosecutes crimes mostly committed after

violence or disorder has already ensued in a state, by criminalizing UCG the AU aims to

prevent the occurrence of such crimes ab initio through the proscription of acts that may

precipitate violence and disorder in a state.165

It is plausible to argue, therefore, that even if the AU were to concede the prosecution of

classical international crimes codified by Article 4(h) of the AU Act, in which most of them are

codified in the Malabo Protocol, exclusively to the ICC, the likelihood that the Union will

continue to seek jurisdictional competence for its Court over other serious crimes, like UCG,

remains very high. Short of amending the Rome Statute to incorporate this crime, which affects

many of its African States Parties but over which the ICC currently has no jurisdiction, it will

be hard to argue against the need for the AU to create a court that can prosecute such Africa-

specific crimes.166 The idea of having a court unique to Africans prosecuting this kind of crime

is therefore not a mean feat and seems to be a noble one for the African people.

4.1.5 A need to address and strengthen the relationship between the African Court and

the ICC.

Since the African Court will be occupying the same legal universe as the ICC, it is necessary

to consider the relationship between these two courts. This is no small matter. Recall that 33

African states are now party to the ICC, with at least six of those states having adopted

164
Supra n.148
165
Ibid.
166
Ibid.

47
implementing legislation to give effect to their obligations to the ICC. It thus seems imperative

that the relationship between the ICC and the African Court be addressed.167

The challenges are polymorphic. The issue of which court is to have primacy stands to be

resolved. While it seems clear that the AU might wish for its member states to incline towards

the African Court for the prosecution of regional crimes, more than 60 per cent (33 of 53) of

those member states are already treaty members of the ICC.168 This means that there will be

potentially overlapping spheres of jurisdiction; and the prospects of conflicting obligations not

to mention a doubling up for some states on contributing financially to two courts. Careful

thought would obviously have to be given to the question of domestic legislation to enable a

relationship with the expanded African Court (especially given problems with mutual legal

assistance and extradition). Here there is a minefield of difficulties, including that: elements of

crimes in the protocol may be different from the elements of crimes in domestic law thus

requiring a major re-write of many of the domestic laws of African states, or that a number of

the crimes listed in the protocol are not crimes in the domestic law of African states, thus

requiring careful introduction of these crimes to ensure cooperation; that domestic law may

already require an obligation to cooperate with the ICC in the investigation of certain crimes;

and that surrender of suspects to the African Court and extradition as between states parties

will require regulation.

Given these difficulties, it is unfathomable that the draft protocol nowhere mentions the ICC,

let alone attempts to set a path for African states that must navigate the relationship between

these two institutions. This is at best curious, at worst sinister. Either it is a clear sign that the

AU is intent on snubbing the ICC, or it is a case of irresponsible treaty making – expecting

167
Max du Plessis, ‘A case of negative regional complementarity? Giving the African Court of Justice and
Human Rights Jurisdiction over International Crimes’. (2012)
168
Ibid.

48
signatories to become party to an instrument that ignores the complicated relationship that will

exist for states parties to the Rome Statute.

Given these interrelated, compounding and material difficulties with the creation of an

international criminal chamber at the African Court the real motivation underpinning the draft

protocol remains to be answered.

A fair argument might be made that the AU’s decision to embark upon the expansion of the

African Court’s jurisdiction is to throw sand in the ICC’s gearbox, place speed-bumps in the

path of African states parties to the ICC and send confusing signals to those African states

thinking of ratifying the Rome Statute.

All things considered, serious questions are raised about whether the draft protocol is an

example of “negative” complementarity; an attempt to secure a regional exceptionalism in the

face of the ICC’s currently directed investigations on the continent. Through this reactionary

regional exercise in rushing into existence a deeply flawed legal instrument, there is a related

risk that human rights protection on the continent will be weakened.

4.1.6 Conclusion.

Africa can have a regional criminal court without necessarily having the court draw its legality

from the Rome statute. It is therefore fallacious for one to argue that such a court will be a

sham because there already exists a permanent international criminal court. This court however

should be structured in a manner that does not create duplicity of roles between the African

court and the ICC. Changes to the traditional international order in criminal law on how

national courts relate to international criminal tribunals should also be made. This is to ensure

that the continental criminal court is also given recognition and a place in the international

arena. This is to be done by amending both instruments to have a more informed principle of

complementarity that recognizes three tiers of jurisdiction, to wit, national, regional and

49
international. Lastly, for there to be a smooth system of justice internationally, the two courts

should have a mutual relationship and ensure that justice is always provided for the victims.

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53