In 2014, member states of the African Union adopted a protocol in Malabo, Equatorial Guinea, known as the Malabo Protocol. The Malabo Protocol is an agreement which, when rati ed by 15 member states, would grant criminal jurisdiction to the existing African Court of Human Rights, which is proposed to be merged with the African Court of Justice to create an African Court of Justice and Human Rights (ACJHR). This new court will have jurisdiction to adjudicate interstate disputes and human rights violations, as well as prosecute serious crimes committed by individuals and corporations on the African continent.

Although the discourse for the establishment of an African criminal court has its origins in the 1970s, it has recently gained renewed momentum due to the perception at the AU of international meddling in the a airs of African states. As a corollary, a need was expressed for a court that can prosecute crimes that are particularly prevalent in Africa, but are of apparently little prosecutorial interest to much of the rest of the world.

This report gives a compelling history of the proposed African court, to provide insight and guidance to enhancing its e cacy. The report also aims to address structural weaknesses of this court, but also to highlight the potential bene ts of the Protocol. This balanced and constructive assessment can be utilised by state actors and members of the public to rally behind an acceptable version of the Protocol and the potential ACJHR, which it seeks to establish.

The intent of the African states to create a court with criminal jurisdiction is noble, and given strong operational and constitutional backing, such a court has the potential to provide a strong African option to achieving justice for the victims of international and other serious crimes. However, as proposed, the ACJHR has a number of serious weaknesses that risk making it stillborn. The most serious of these is the provision in Article 46A bis, which grants immunity from prosecution to sitting heads of state and other senior o cials. Given that the type of crimes to be prosecuted by the Court are those that tend to be committed by powerful individuals in and out of government, the granting of immunity to them would seem to undermine the raison detre of the court

But the ACJHR might yet prove to be a step towards greater accountability and justice in Africa. In addition to removing the immunity provision, this can be achieved by strengthening a unit to protect and care for victims and witnesses; increasing the proposed number of judges to better handle the caseload; clarifying better the crimes to be pursued; expressing commitment to work in tandem with CSOs; and committing to better funding sources and communication to the public. The Protocol should also provide for a framework for cooperation between the Court and regional and international courts, notably the ICC, in order to provide for a holistic and universal approach to ghting impunity on the continent that complements rather than undermines global efforts.

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