1. Introduction

In June 2014, at its summit in Malabo, Equatorial Guinea, the Assembly of Heads of State and Government (‘Assembly’) of the African Union adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ‘Malabo Protocol’). The so-called Malabo Protocol was one of eight legal instruments adopted by African Union (AU) leaders, but undoubtedly one of its most significant. The significance stems, partly, from the consideration and addition of a third section to the proposed African Court of Justice and Human Rights (ACJHR) which had already formally anticipated the possibility of a regional tribunal with jurisdiction over human rights issues as well as general disputes arising between African States. The new Court will, once its statute enters into force upon achievement of the 15 required ratifications additionally possess the competence to investigate and try 14 international, transnational and other crimes in a highly ambitious tribunal with three separate chambers and jurisdictions:Footnote ¹ (1) the General Affairs Section, (2) the Human and Peoples’ Rights Section and (3) the International Criminal Law Section. The merger of these three chambers addressing inter-state disputes, human rights and penal aspects into a single court with a common set of judges represents a significant development in Africa and in wider regional institution building and law making.

The adoption of the Malabo Protocol is the culmination of a process that began long before what many African Court sceptics see as the outcome of the indictment by the International Criminal Court (ICC) of President Omar Al-Bashir of Sudan. It is true that between 2009 and 2014, the draft protocol was subject to a series of politically driven calls to expedite the expansion of the criminal jurisdiction of the proposed merged court as a sort of African alternative to the ICC. The calls had been preceded by a decision of African leaders taken in February 2009 during the Twelfth Ordinary Session of the Assembly directing the AU Commission to assess the implications of the present African Human Rights Court being empowered to try international crimes such as genocide, crimes against humanity and war crimes. This would later lead to the AU Commission’s preparation of a draft legal instrument. The draft was then presented to and debated by African states over the course of several years. The process of negotiating and adopting the Malabo Protocol was influenced by political concerns and push back at the ICC by some African States under the scrutiny of The Hague, including most prominently Kenya. That context would lead to a key amendment to the clause concerning immunity of high-level officials and also fast tracked the eventual adoption of the draft regional treaty at Malabo towards the end of June 2014.

However, although these circumstances led to the unfortunate perception of the African Court among scholars and practitioners of international criminal law as a rebel court against the ICC that should be ignored rather than studied, a careful review of the evolution of African human rights institutions generally and the criminal jurisdiction of the African Court in particular confirms that the journey to Malabo began long before the Al-Bashir saga and 2009.

2. The Journey to the African Court Malabo Protocol

One early marker for the beginning of the court formation process was the 1981 adoption of the African Charter on Human and Peoples’ Rights by the Organization of African Unity (OAU), the AU’s predecessor.Footnote ² This Charter entered into force in 1986 and enabled the 1987 establishment of the African Commission on Human and People’s Rights, a quasi-judicial oversight body tasked with interpreting the charter and hearing complaints of human rights violations brought by individuals against their home states.Footnote ³ Yet another and even earlier marker for establishment of an African court was the 1961 Lagos Conference on Primacy of Law in which an idea emerged to adopt an African human rights convention with the view to establishing an African human rights court modelled on the European and Inter-American Courts of Human Rights.Footnote ⁴ This proposal resurfaced in 1969 at the UN Seminar on the Creation of Regional Commissions on Human Rights with specific reference to Africa held in Cairo in 1969. At the time, the UN’s recommendation to the OAU went unimplemented.Footnote ⁵

However, scholars such as C. R. M. Dlamini have documented several initiatives and seminars held over a period of 10 years to discuss and advocate for the establishment of an African Commission on Human Rights or courtFootnote ⁶ such as the 1961 conferences and seminars that the UN and the International Commission of Jurists organized on the rule of law in Dakar (1976), Dar es Salaam (1976) and Dakar (1978). All these meetings led to successive resolutions urging the OAU to adopt a regional human rights instrument for Africa.Footnote ⁷ By 1979, at a symposium convened by the UN in Monrovia, Liberia adopted a strong position on the need to create such a body, which reportedly influenced the decision of the Assembly of the Organization of African Union (OAU). A series of political developments centred on human rights violations in several African states in Uganda, the Central African Republic and South Africa as well as a concerted campaign to create an African Commission resulted in the historic decision of the OAU Assembly at its February 1979 Summit requesting the organization’s Secretary-General to convene a meeting of experts which would propose the establishment of relevant bodies for the protection of human rights on the continent in the form of the African Charter on Human and Peoples’ Rights.Footnote ⁸

In January 1981, an OAU Council of Ministers adopted a preliminary draft of an African Charter in Banjul, The Gambia, which had been prepared in 1979 by a Committee of Experts headed by renowned Senegalese jurist Kéba Mbaye. Mbaye and the other legal experts had debated a number of proposals. The focus of most of the proposals was largely on the human rights issues. But, for our limited purposes, one of the most significant was a proposal submitted by the Republic of Guinea suggesting that the future court should also be endowed with jurisdiction to prosecute gross violations of human rights constituting international crimes such as crimes against humanity. The Guinean proposal seemed to have been motivated by a desire to condemn the gross human rights violations taking place in South Africa under a ruthless apartheid regime at the time. The proposal was not successful. And the experts proved to also not be convinced that African states were ready for a human rights court. They therefore recommended the establishment of a human rights commission, while urging the return to the idea of a court capable of issuing binding decisions in the future. The eventual Charter, endorsing the commission idea, was adopted by the OAU Assembly Summit held in Nairobi, Kenya in June 1981Footnote ⁹ and came into force in 1986. The African Commission, the institution established under the Charter to interpret the treaty and to help protect and promote human rights in Africa, was established in November 1987 and based in Banjul, The Gambia.Footnote ¹⁰

In an attempt to bolster the charter and hear grievances, the African Court of Human Rights (ACHPR), which complements the protective mandate of the African Commission on Human and Peoples Rights,Footnote ¹¹ was inaugurated in 2006. This was based on a recognition that the Banjul Charter entailed some limitations s well as a desire to enhance its efficiency. The African Court sits in Arusha, Tanzania and besides the power to issue advisory opinions, may hear individual applications relating to human rights violations brought before it by the AU Commission, as well as complaints initiated by individuals as well as African intergovernmental organisations and member states.Footnote ¹² It was created by the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, adopted on 10 June 1998, which entered into force on 25 January 2005.Footnote ¹³ A significant legal limitation to the jurisdiction is that a special declaration by a state is required for the Court to have competence to entertain individual human rights complaints against it, which perhaps unsurprisingly given the current state of human rights on the continent, has, at the time of this writing, only been entered by seven African states.

The push to establish an African Court is as old as the African Charter itself, having been considered but rejected on various grounds by the Committee of Experts that drafted the African Charter in 1979.Footnote ¹⁴ It was motivated, in part, by the need to strengthen the African human rights system and enhance the system’s capacity to engender positive responses from states through binding decisions. However, the subject matter jurisdiction of this Court was limited to human rights violations and did not extend to international crimes, except in the context of ‘massive violations’.Footnote ¹⁵ It interprets and applies the African Charter on Human Rights, the Protocol Establishing the Court and any other relevant (human rights) instrument ratified by the states concerned.Footnote ¹⁶ At the same time, the decisions of the African Commission are mere recommendations.Footnote ¹⁷

However, with the transition from the OAU to the AU in 2000, several organs were created by the AU’s Constitutive Act. One of these organs of the AU, which addressed aspects of the expressed commitment to promote deeper commitment to human rights by condemning and rejecting impunity, is the African Court of Justice. In 2001, a second inter-state court structure was included in the AU’s Constitutive Act and was further developed in the 2003 Protocol of the Court of Justice of the AU, becoming known as the African Court of Justice (ACJ).Footnote ¹⁸ The ACJ was intended to be the principal judicial organ of the AU, with authority to rule on disputes over the interpretation of AU treaties.Footnote ¹⁹ Although this protocol entered into force in 2010, the ACJ was superseded by the Protocol on the Statute of the African Court of Justice and Human Rights (the Merger Protocol).Footnote ²⁰

In explaining the merger of the courts, among other factors, many believed that the proliferation of institutions was problematic and that the viability of these institutions was in question in view of funding constraints. There also remained some apprehension about the extent of commitment to the establishment of a robust court. In 2007, a group of African legal experts was commissioned by the AU to advise on a possible conjunction of the ACHPR and the ACJ.Footnote ²¹ The Assembly requested the AU Commission to appoint a Committee of Experts to consider a possible merger and prepare a protocol for the same.Footnote ²² The Committee of Experts was appointed and produced a draft protocol. A merger of the African Court on Human Rights and the African Court of Justice was justified as part of the rationalization and cost-cutting measures undertaken by the AU. This merged court would become the ACJHR.Footnote ²³

During the meeting of Experts and Ministers of Justice and Attorneys General held at the AU Headquarters in Addis Ababa in April 2008, the Protocol on the African Court of Justice and Human Rights was considered and approved. The Assembly subsequently adopted the Protocol of the Merged Court at its 6th Ordinary Session in Sharm El Sheikh, Egypt in July 2008. The joining of the two courts into a ‘Merged Court’ contemplated two jurisdictional chambers: a general chamber to consider inter-state issues and labour matters affecting employees of the AU (which was the original jurisdiction of the ACJ) and a human and peoples’ rights chamber with the same powers as the ACHPR. The AU urged member states to proceed with speedy ratification.Footnote ²⁴ The Merger Protocol was to enter into force after 15 ratifications, the current threshold for most AU treaties. To date, only five states have ratified it.Footnote ²⁵

However, it was the eruption of the contentious debate in 2008 on universal jurisdiction following the indictment of Rwandese officials by courts in France and Spain coupled with the controversy over the indictment of Sudanese President Al-Bashir by the Prosecutor of the ICC in 2009 that complicated the path to ratification when the AU redirected its efforts towards expanding the jurisdiction of the Human Rights Court before the Protocol establishing the Merged Court could come into force.Footnote ²⁶ By this time, the African Court on Human Rights that had been inaugurated in 2006 was engaged in setting up its structures and negotiating a working relationship with the African Commission. As a consequence of a UN Security Council Article 13(b) referral of the Sudan Situation in March 2005, the ICC issued an indictment on two charges of war crimes and three charges of crimes against humanity against President Al-Bashir of Sudan.Footnote ²⁷ The controversy revolved around the ICC prosecutor’s refusal to not reconsider the application for the issuance of the arrest warrants, despite Sudan being a non-party to the Rome Statute and the AU’s concerns about the ongoing peace process to end the conflict in Darfur. The first arrest warrant was issued on 4 March 2009 while the second, which added charges relating to the crime of genocide, was issued on 12 July 2010.

Within months of the adoption of the Protocol Establishing the Merged Court, and during its Twelfth Ordinary Session held between 1–3 February 2009 in Addis Ababa, the Assembly of Heads of State and Government requested the AU Commission, in consultation with the African Commission on Human and Peoples’ Rights, and the African Court on 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’.Footnote ²⁸ In its decision of 3 February 2009, the AU had argued for an ‘accommodation’ to allow the continental body more time to find a negotiated solution to the armed conflict in Darfur, cautioning that these peacemaking efforts could be undermined by the indictment of President Al-Bashir.Footnote ²⁹ The AU indicated that it was not opposed to accountability for atrocity crimes in Sudan, irrespective of who were the perpetrators, but that timely political resolution of the conflict could be undermined by an untimely prosecution. In other words, the question of peace versus justice, or rather the sequencing of peace and justice, which had been already raised in the Uganda Situation now took centrality in what would prove to be an ICC-AU debacle that continues to this day.Footnote ³⁰

At the close of its Thirteenth Ordinary Session in Sirte, Libya on 3 July 2009, the Assembly renewed its call to the AU Commission, expressing its desire to have the process speeded up and urged the commission to aim for an ‘early implementation’ of its February decision.Footnote ³¹ The Assembly ‘expressed its deep concern at the indictment issued by the Pre-Trial Chamber of the ICC against President Omar Hassan Ahmed Al-Bashir of the Republic of the Sudan’.Footnote ³² In its view, the indictment had prejudiced its efforts to find peace in Darfur. It noted, with concern:

It is clear from the Sirte decision that the AU’s concerns over the Al-Bashir indictment directly influenced its decision to call on relevant AU organs to speed up the work on its request made earlier in the year, to investigate the prospects of vesting the ACJHR with a criminal prosecution mandate. A central factor, which preceded the Al-Bashir indictment controversy and that was also very important to understanding the origins of the criminal jurisdiction idea, had been the 2006 recommendation of a separate committee of AU experts relating to the trial of Chadian president Hissiéne Habré. That committee proposed that Senegal be entrusted with the responsibility of trying the former Chadian president, but also urged consideration for the addition of a criminal jurisdiction to the existing African Human Rights Court in order to have a mechanism to prosecute any similar cases that might arise in the future. And by late 2009, in response to the directives received from the Assembly, the Office of the Legal Counsel of the AU commissioned the Pan African Lawyers Union (PALU) to carryout a study and prepare recommendations and a form of draft amendment to the Merger Protocol to enable the Court to try international crimes ‘such as’ genocide, crimes against humanity and war crimes.Footnote ³⁴

PALU submitted its first draft report and draft legal instrument to the Office of the Legal Counsel (OLC) of the AUC in June 2010, proposing amendments to the existing Protocol as well as its Statute. In August 2010, PALU submitted the second draft report and draft legal instrument, incorporating the directives and suggestions of the OLC.Footnote ³⁵ Following this, two validation workshops were held in South Africa in August and October/November 2010. The meetings were privately organized and brought together the AUC and the legal advisors of all relevant AU organs and institutions, as well as the legal advisors of the Regional Economic Communities (RECs), to consider the draft report and draft legal instrument.Footnote ³⁶ A number of individuals were reportedly invited to participate in the meetings, based on their connection to the principals of PALU. Civil society organizations, academia and independent legal experts in international criminal law were not formally included in the process. An opportunity was thus lost to take advantage of the availability of specialists in these issues from within Africa as well as internationally.

In any event, between March and November 2011, three additional meetings of government experts took place in Addis Ababa, Ethiopia to consider the draft report and draft legal instrument. Both the draft report and draft legal instrument were amended at each stage based on directives and suggestions from each of the meetings.Footnote ³⁷ After further discussions, delays and amendments, in May 2014, a revised version of the 2012 draft was put before the first session of the AU Specialised Technical Committee (STC) on Justice and Legal Affairs in Addis Ababa. The STC is composed of Ministers of Justice and/or Attorneys General, Ministers responsible for constitutional development and rule law as well as Ministers charged with Human Rights responsibilities in the AU member states. At this meeting, attended by legal representatives of 38 AU member states, two AU organs and one REC, the draft was adopted and submitted for consideration and adoption to the AU Assembly, through its Executive Council. Three independent legal experts, two of whom are co-editors of this book (Jalloh and Clarke), were invited by the third co-editor (Nmehielle – who was then legal counsel to the African Union Commission) in the week just before the STC opened to provide feedback on the draft instrument. The key limitation was that the draft instrument, having been approved at the ministerial level twice, was not subject to further substantive changes. Neither for that matter, in accordance with AU treaty making process, were the seven other legal instruments under consideration in the same meeting of the STC. Nonetheless, based on the assistance of the independent experts, the legal counsel was successful in advocating for the STC to adopt a number of significant last-minute amendments relating to, for example, definitions of crimes as well as the establishment of a full-fledged Defence Office to ensure principled equality of arms with the prosecution. Some of the delegations seemed uncomfortable with the mere presence of the legal experts. So it was even more remarkable that the consensus was not broken over the AUC counsel’s proposed amendments. Together with the then new AU legal counsel, we could only wish that we had been involved at an earlier stage of the drafting process as that might have assisted in addressing some of the key issues with and gaps in the Malabo Protocol.

From that point on, the legislative process of the Malabo Protocol – from the commissioning of PALU in late 2009, to the Ministerial meetings held in October and November 2012 to agree on a draft protocol that would involve the addition of criminal jurisdiction to the African Court – followed a number of starts and stops. However, it was the ICC’s indictment of Uhuru Kenyatta and William Ruto, two prominent politicians from Kenya, who would eventually become the President and Deputy President of Kenya respectively, that reignited the debate on the 2012 draft African Court Protocol with renewed calls to establish the court. The process was also influenced by African government concerns about what they alleged to be the abuse and misuse of universal jurisdiction. In other words, though as seen earlier the origins of an African court with criminal jurisdiction can be traced back to the early 1980s and more recently to the recommendation of the experts on the best means for the trial of Habré, the push to create an African criminal jurisdiction can ultimately explained by the drafters as a search for a mechanism over which African states would exert more control on dispensing justice in their continent. It was propelled by a sort of Pan-Africanist view that the AU should seek ‘African solutions for African problems’, which to date seems to be used more in symbolic and rhetorical rather than in substantive terms. The AU’s reported disillusionment with the efficacy of the global security architecture is said to inform this position, and the development of the AU’s peace and security framework is in part driven by the seeming preference to find appropriate, locally owned and expeditious responses to African security challenges through the formation of a consolidated court – One Court – with three jurisdictions.

3. The Structure of the Emerging Court

The new ACJHR proposed by the Malabo Protocol has been designed to have both original and appellate jurisdiction, interestingly with only 15 serving judgesFootnote ³⁸ sitting in three separate chambers: a General Affairs Section, a Human and Peoples’ Rights Section and an International Criminal Law Section.Footnote ³⁹ The General Affairs Section has been structured to hear all cases submitted under Article 28 of the Statute, except those ‘assigned to the Human and Peoples’ Rights Section and the International Criminal Law Section as specified in this Article.’Footnote ⁴⁰ It was designed to exercise the jurisdiction to examine all cases and disputes of a legal nature, with the exception of those involving the interpretation and the application of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relating to human rights, ratified by the States Parties concerned, or those relating to international criminal law.Footnote ⁴¹

The second section – that is the Human and Peoples’ Rights Section – ‘shall be competent to hear all cases relating to human and peoples’ rights.’Footnote ⁴² Those cases are described very broadly in Article 28 as relating to ‘the interpretation and the application of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; or any other legal instrument relating to human rights, ratified by the States Parties concerned’.Footnote ⁴³ The Human and Peoples’ Rights Section will have three judges.Footnote ⁴⁴

The third section is the International Criminal Law Section. It is described as being ‘competent to hear all cases relating to the crimes specified in this Statute.’Footnote ⁴⁵ The proposed new International Criminal Law Section will have personal jurisdiction over natural and quite significantly legal persons in respect of the following crimes: (1) Genocide, (2) Crimes Against Humanity, (3) War Crimes, (4) The Crime of Unconstitutional Change of Government, (5) Piracy, (6) Terrorism, (7) Mercenarism, (8) Corruption, (9) Money Laundering, (10) Trafficking in Persons, (11) Trafficking in Drugs, (12) Trafficking in Hazardous Wastes, (13) Illicit Exploitation of Natural Resources and (14) the Crime of Aggression.Footnote ⁴⁶ Article 28 (N) of the Protocol defines basic modes of responsibility to include inciting, instigating, organizing, directing, facilitating, financing, counselling or participating as a principal, co-principal, agent or accomplice in any of the offences stipulated above.Footnote ⁴⁷

Three Chambers will operate in the International Criminal Law (ICL) Section, effectively following the model of the ICC comprised of a Pre-Trial Chamber, a Trial Chamber and an Appellate Chamber that will have one, three and five judges, respectively. It is doubtful whether the reproduction of a three-tier chamber structure was a sound decision in light of the ICC’s experiences to date. We also wonder whether such few judges might prove to be sufficient for the mandate contemplated.Footnote ⁴⁸ Article 8 of the amended statute (Article 18 of the original statute) addresses revision and appeals. Appeals are allowed only for the ICL Section, not the Human Rights or General Sections, giving prosecutors and defendants a right to appeal from a decision of the Pre-Trial Chamber or the Trial Chamber.Footnote ⁴⁹ The grounds for appeal are typical for such courts: a procedural error, an error of law and an error of fact.Footnote ⁵⁰ An appeal may also be made against a decision on jurisdiction or admissibility of a case, an acquittal or a conviction.Footnote ⁵¹ The Appellate Chamber may affirm, reverse or revise the decision appealed against. The decision of the Appellate Chamber shall be final.Footnote ⁵² The right to appeal was provided to ensure compliance with current international human rights standards, in particular, the right to a second level review pursuant to Article 14 of the International Covenant on Civil and Political Rights which is widely deemed to be customary international law.

In a sense, each of the three sections of the court – the General Affairs Section, the Human Rights Section and the International Criminal Law Section – have separate histories that predates the process commenced by the Addis Ababa resolution requesting the African Commission on Human and Peoples Rights and the African Court on Human and Peoples Rights (ACHPR) to investigate the possibility of vesting the Court with an international criminal law jurisdiction.Footnote ⁵³ Technically, the request related to the jurisdiction of the yet-to-be-established Court of Justice and Human Rights (the Merged Court), rather than the human rights court.

4. The ‘One Court’ Concept: Some Key Criticisms in the Literature

The adoption of the Malabo Protocol has provoked strong reactions. Those who are in favour of it stress the potential contributions it could make to the search for viable mechanisms to comprehensively address human rights and criminal law issues in Africa in a single legal forum. Those in this camp tend to emphasize the innovations contained within it and would typically assert that regionally driven means to prosecute serious international and other crimes could prove to be complementary with the ICC. Those in the opposite camp, on the other hand, perceive the Malabo Protocol as a rebel or protest court created by the AU to undermine the ICC. The latter argument is frequently made by reference to the components of the Malabo Protocol that contradict the ICC Statute such as the last-minute addition of a temporary immunity exception, which had been proposed by Kenya. This impression may be understandable, given the current and wider tension between the AU and the ICC concerning the alleged double bias and selectivity of ICC administered international criminal law.

However, as is so often the case with binary arguments, the truth is not a black or white issue as the two opposing poles of the arguments might suggest. It lies somewhere in the middle, and to stay with the colour analogy, may in fact reflect many shades of grey. We see an appreciation of the historical circumstances leading to the establishment of the proposed court as crucial in this regard and note that the recommendation to establish a court with multiple jurisdiction stems from circumstances arising from the effort to give some justice to the victims of the actions of former Chadian president Hisséne Habré which predated the ICC-Africa saga. True, that proposal was made around 2006 and was not initially taken up although this did occur later. For our part, we do not outright reject the idea of the future court, even if we may have concerns about specific aspects of it. Part of the reason for that is we do not perceive the AU experiment to create its own regional court as incompatible with support for the ICC or the struggle for greater accountability in Africa or the sovereignty that African States enjoy under international law.

For one thing, at the level of principle and as emphasized by the Nuremberg Tribunal judgment, international law does not bar a group of states coming together to create a new court that would do what each of them are able to do singly. Second, there are several key innovations in the instrument that suggests that AU states wish to Africanize international criminal law to deal with certain concerns specific to their region, including an expanded list of crimes and corporate criminal liability. This is consistent with what has happened in the past in other areas of international law including human rights law, where African states have – like other regions – chosen to forge their own path. Third, while there are some problematic aspects of the Malabo Protocol such as the temporary immunity clause, regionalizing international criminal law opens up potentially new spaces for accountability bringing this field closer to the multi-level national, regional and international system familiar to the cognate field of international human rights law. This, provided it is done well, can thus be better seen as complementary mechanisms for the ICC which was in any case never intended – for both pragmatic and sovereignty reasons – to be the sole institutional response to atrocity crimes. The ICC system was, as is emphasized by the Rome Statute itself including in its preamble and substantive provisions, predicated on the notion that it is the duty of all states to exercise criminal jurisdiction over those most serious crimes of concern to the international community as a whole and that it is imperative that they are more effectively prosecuted by taking measures at the national level – and we would add if need be at the regional level – and by enhancing international cooperation. This is what makes the ICC’s criminal jurisdiction complementary, rather than supplanting, national criminal jurisdictions.

The existing literature on the African Court, while limited, cursorily addresses the key pillar constituting what we call the ‘one court’ concept. The fledgling literature focuses in particular on the desirability of such a court (though that matter appears to be settled by the decision of African States to adopt the protocol), its possible (in)compatibility with the ICC Statute or the repercussions of merging courts from civil, human rights and criminal law jurisdictions.Footnote ⁵⁴ For example, as already noted, Article 16 of the Statute establishes a General Affairs Section, a Human and Peoples’ Right Section and an International Criminal Law Section.Footnote ⁵⁵ The first two sections embody the civil jurisdiction of the Court while the third embodies its criminal jurisdiction. However, Abass suggests that the combination of civil and criminal jurisdictions in a single court is not only almost unprecedented in international judicial practice, but is also fraught with a myriad of substantive and procedural problems that the Court, under the current proposal, will be unable to handle.Footnote ⁵⁶ Scholtz similarly notes that the merging of the international criminal chamber with the human rights and general affairs divisions of the ACJHR is unprecedented in international law and fraught with challenges given the incompatible functions and mandates of the divisions.Footnote ⁵⁷ While the general and human rights sections address issues of state responsibility and accountability in respect of inter-state disputes and human rights violations, the International Criminal Law Section deals with individual criminal responsibility.

The reality is that the newly proposed court is the first of its kind in the world at the regional level with the objective of addressing both human rights and ICL.Footnote ⁵⁸ While this has some potential for innovation, a range of scholars, such as Viljoen and Scholtz, have cautioned that there is good reason why such distinct functions have never before been merged into a single judicial entity or organ at the international level.Footnote ⁵⁹ They note that there are major differences between courts dealing with state responsibility and those dealing with individual criminal responsibility, including that very different evidentiary standards apply.Footnote ⁶⁰ While state responsibility is determined with reference to the standard of a balance of probabilities, the standard in an international criminal tribunal is that of ‘beyond reasonable doubt’.Footnote ⁶¹ According to Viljoen, while cases of state responsibility or accountability for human rights violations are generalised and would not necessitate a level of seriousness, the prosecution of crimes would almost inevitably be ad hoc and be reserved for the most serious cases where a very high threshold of seriousness had been reached.Footnote ⁶² Noting that the amended protocol has already resulted in the reduction of the number of judges with a particular human rights competence,Footnote ⁶³ he argues that another potential negative consequence of the introduction of a tri-sectional judicial institution is the likelihood of the reduction in the focus on human rights.Footnote ⁶⁴

In the current human rights court based in Arusha, there are 11 judges, while the amended protocol calls for only five judges with three judges to form a quorum in the Human and Peoples’ Rights Section.Footnote ⁶⁵ Here we see an argument claiming that it is inevitable that the limited resources available to the AU would be spent on the more prominent issue of criminal justice, especially given that the cost of one criminal prosecution may far exceed the cost of the budget of the entire African Human Rights Court.Footnote ⁶⁶ The merging of the three discrepant sections could have the effect of inevitably reallocating resources disproportionately towards criminal justice cases rather than on cases dealing with human rights.Footnote ⁶⁷ We are not certain of the basis of this assumption, though we do not discount the possibility since one of the rationales for creating a single court is to ensure better use of limited resources. It, would, however, be quite un-imaginable that the AU would deliberately starve any of the components of the Court of funds, particularly because the appropriation of funds for the Court would be done based on a holistic budget presented for all the three sections. We note nonetheless that there still remains the possibility that the entire institution, rather than just one part of it, could be underfunded.

On an operational level, it has also been suggested that decisions of the Human and Peoples’ Rights Section may be overturned on appeal by an Appellate Chamber not well versed in human rights matters.Footnote ⁶⁸ The author observes that the Malabo Protocol stipulates that the ‘Appellate Chamber may affirm, reverse or revise the decision appealed against’, without restricting these decisions to either ‘general’, ‘human rights’ or ‘criminal law’ matters. The only ‘Appeal Chamber’ mentioned in the Protocol is the ‘Appellate Chamber of the International Criminal Law Section.’ This, it is suggested, creates the impression that this chamber – consisting of judges elected with expertise on international criminal law – would also hear appeals about human rights matters.Footnote ⁶⁹ In opposition to this potential, Viljoen calls for the composition and role of the Appellate Chamber to be clarified. In providing such clarification, he insists that, as set out in Article 7 in the current version of the Statute, the Human Rights Section alone should be competent to hear cases related to human and peoples’ rights.Footnote ⁷⁰

However, it is hard to understand the basis of this criticism. The language of the relevant provisions in the Malabo Protocol seems to not be as ambiguous as has been suggested. In the first place, the ordinary language of the jurisdictional clause indicates that the appeals are contemplated only for the criminal law section. It should also not be assumed that judges in the appeals chamber would be less able to decide on human rights issues since their selection would presumably be attentive to the substantive expertise across the board in terms of all the courts’ jurisdictions. The need for expertise in all areas within the jurisdiction is emphasized by the substantive requirements attached to the qualifications to hold judicial office in the tribunal. The Malabo Protocol, at Article 6, therefore contemplates candidates being nominated based on competence in matters of general international law (List A); international human rights and humanitarian law (List B) and competence in international criminal law (List C). This plainly requires that they have the expertise in all the areas. And, assuming that the states parties take them seriously when nominating candidates for the court, it would be difficult to see how the judges would not reflect the expertise since it is on the basis of the nominations that the candidates would be elected. From the point of view of the court, as a matter of judicial consistency, their decisions would have to enjoy a measure of coherence across all three jurisdictions at least in relation to the same issues. After all, as Article 19(2) of the Malabo Protocol confirms, a Judgment by one of the chambers of the tribunal is considered as a ruling of the Court.

Some, including African States, have recommended that a provision giving states the option to accept the jurisdiction of only the Human Rights and General Affairs Sections should be included in the statute.Footnote ⁷¹ One author argued that the jurisdiction of the International Criminal Law Section should be optional rather than a necessary consequence of ratification, that such a possibility would address the concern that an all-or-nothing approach could deter some states from ratifying the Amending Merged Court Protocol.Footnote ⁷² Nevertheless, while it could have the effect of attracting more member states, this book argues that such an approach to the jurisdiction of the merged court – including chambers for treaty law, state-level international human rights violations and individual-level criminal international human rights violations – would radically restructure the one court concept. That vision of a single court underpins judicial human rights accountability efforts in light of the bifurcated structure of current courts, potentially complicating an already controversial African justice efforts.Footnote ⁷³

A range of commentators agree that the ACJHR jurisdiction would help to overturn the longstanding bifurcation of state and individual accountability for human rights abuses, a structural separation of state and individual mechanisms that are a key element of accountability efforts for human rights abuses.Footnote ⁷⁴ For example, Rau suggests that the conceptual advantages of institutional unification of state and individual-level proceedings. She notes that there is significant conceptual overlap between the regimes, and that while no court currently considers claims of human rights violations against both states and individuals, this dual-prong system is indispensable to comprehensively address grave human rights violations.Footnote ⁷⁵ She notes the potentially irreconcilable goals of the two mechanisms, noting that state-level accountability is rooted in the doctrine of international legal order, while individual-level accountability stems from a tradition of imposing legal obligations upon persons. State-level accountability efforts can fill the gaps that assignment of individual blame may leave in the processes of truth-telling and accountability and thus may serve to further reconciliation and peace, the ultimate goals of transitional justice.Footnote ⁷⁶ Conversely, individual accountability personalizes the prosecution, conviction and sentences for human rights violations, lifting the ‘corporate veil’ of state responsibility.

The two approaches are difficult to reconcile, and may lead to diverging solutions when applied to practical problems that arise from the relationship between state and individual responsibility.Footnote ⁷⁷ Ultimately, Rau concludes that while the current bifurcated system of accountability for human rights abuses undoubtedly reflects various flaws, the proposed ACJHR expansion is a remedy ill-suited to the problem.Footnote ⁷⁸ She notes that the institutional separation between state-level and individual-level proceedings remain important, in part, because the fundamental goals of state and individual accountability will not always be complementary; indeed, at times, they may work at cross-purposes.Footnote ⁷⁹ By merely patching together state and individual accountability into a single institution, the ACJHR’s proposed expansion would produce a jurisprudential hodgepodge, rather than streamlined justice.Footnote ⁸⁰ For while individual- and state-level systems undoubtedly and necessarily interrelate, and while the current structure fails to recognize this interaction adequately, she suggests that the goal should be to coordinate them rather than to merge them into a single institution.Footnote ⁸¹

In spite of this interesting conclusion, our conceptual approach to the ACJHR is an important one, especially as it relates to considerations about how the African Court is expected to function in relation to the AU system. It suggests that the ‘one court’ structure may allow for a more nuanced and fulsome approach to African justice issues, and one that situates the Court within a multi-layered system of African regional mechanisms that are working together to address political, legal, social and cultural issues. For though it is true that a court is insufficient to address the legal, social and political complexities produced by human rights violations, the reality is that the African Court cannot be seen solely in relation to its judicial capacities. In this way, then, it is possible to conceptualize the African Court as one aspect of a wider institutional framework working towards enhancing human rights, accountability, democracy and access to justice on the continent as a whole. With this in mind, it seems possible then to situate mechanisms such as the African Court and the AU’s African Governance Architecture (AGA) within the framework of ‘African solutions to African problems’, and to see these structures as integral to a fairly unique continent-wide African transitional justice approach.

5. The ‘One Court’ as a Transitional Justice Mechanism

One way to conceptualize the institutional vision for the future court is through an appreciation of its inter-relationship with other AU, African state and civil society mechanisms. For example, on the institutional level, the African Governance Architecture (AGA) of the AU, is an institutional framework designed to strengthen coordination and collaboration amongst existing institutions at the regional, sub-regional and national levels.Footnote ⁸² The rationale for the AGA was that while there are several governance instruments, frameworks and institutions at the regional, sub-regional and national levels, there is little or no effective synergy, coordination and harmonization amongst them. These institutions work mostly in silos and do not benefit adequately from each other at the level of sharing information and coordinating their activities for effective performance.Footnote ⁸³ As such, it is anticipated that the architecture will provide the process and mechanisms to enhance policy dialogue, convergence, coherence and harmonization amongst AU organs, institutions and Member States as a way of speeding up the integration process on the continent.Footnote ⁸⁴

The AGA is an evolving mechanism composed of three principal pillars: a vision/agenda; organs and institutions; and mechanism/processes of interactions amongst AU organs/ institutions with a formal mandate in governance, democracy and human rights.Footnote ⁸⁵ The African Court on Human and Peoples’ Rights is one of the institutions critical to pillar two, which will give operational and accountability expression to the African Governance vision.Footnote ⁸⁶ Similarly, the ACJHR can be viewed as a key institution charged with promoting democracy, governance and human rights in Africa at a regional and continental level with attention to transitional justice mechanisms at its core.

According to Godfrey Musila: ‘the idea of transitional justice’ in Africa, relates to a variety of mechanisms deployed by societies emerging from conflict to address certain key concerns of impunity, undemocratic rule, and gross human rights violations, which appears to have taken root on the continent.’Footnote ⁸⁷ He notes that, in parallel to this, the role and presence of the AU in these situations has expanded as the continental body re-invents itself.Footnote ⁸⁸ Despite its increasing role in the areas of peacemaking, peacekeeping, peacebuilding and the work of the ICC, Musila observes that the AU has not had a policy or structured way of engaging in the context of transitional justice.Footnote ⁸⁹ He argues that an ad hoc approach to different situations perhaps undermined any lasting impact the AU could have had. He also explains that as a contribution to the ongoing efforts by the AU to fight impunity and promote a holistic approach that balances the imperatives of peace and justice in post-conflict contexts, the AU Panel of the Wise (AUPOW)Footnote ⁹⁰ adopted a report recommending the development of a policy framework on transitional justice.Footnote ⁹¹

What we can see is that key parts of the draft transitional justice policy framework involve the following: the consolidation of peace, reconciliation, justice in Africa and the prevention of impunity. Likewise the Malabo Protocol has been designed to contribute to ending repressive rule and conflicts and nurturing sustainable peace with development, social justice, human and peoples’ rights, democratic rule and good governance; drawing lessons from various experiences across Africa in articulating a set of common concepts and principles to constitute a reference point for developing and strengthening peace agreements and transitional justice institutions and initiatives in Africa; and developing AU benchmarks for assessing compliance with the need to combat impunity.Footnote ⁹²

By drawing on past and ongoing transitional justice experiences in a number of African countries, the AUPOW have distilled several transitional justice principles of relevance to the African context.Footnote ⁹³ These include: the urgency to pursue peace through inclusive negotiations, rather than force/military struggles; the suspension of hostilities and protection of civilians to provide enabling conditions for participation in dialogue and the search for meaningful peace and justice; and, importantly from the perspective of the ACJHR, a broader understanding of justice to encompass processes of achieving healing, equality, reconciliation, obtaining compensation and restitution and establishing the rule of law.Footnote ⁹⁴ With this in mind, the framework is rightly held out as a potential consolidation of Africa’s contribution to the emerging field of transitional justice and international law by broadening understanding and approaches to impunity and justice.Footnote ⁹⁵ By defining transitional justice in such a context sensitive way to include a range of processes and mechanisms associated with mitigating conflict, ensuring accountability and promoting justice, the framework proposes a definition that goes beyond current mainstream understandings of transitional justice.Footnote ⁹⁶

With this understanding of the workings of the future tribunal as embedded in what Donald Deya has termed African ecosystems, or what Kamari Clarke has called elsewhere African Ecologies of Justice, one can begin to easily situate the proposed expanded Court within a comprehensive transitional justice process aimed at dealing with past conflicts and securing sustainable justice going forward. This volume expands on this theme through a ‘One Court’ model of an African court with three jurisdictions and presents another option for African states whose domestic judiciaries may not be capable of hearing the most serious cases that the African Court can competently address.Footnote ⁹⁷

But there are also other benefits to having a regional court take on cases of concern to the region. For the court’s proximity to those affected by violence could also increase its legitimacy and credibility with Africans, thereby increasing the likelihood of norm promotion due to the proximity to the communities impacted by the human rights violations.Footnote ⁹⁸ Ultimately, the African Court as a product of new regional formations could be seen as revolutionary not only because of the significance of its regional character, but also because it could consolidate a range of administrative and procedural issues that are well outside the capacities of the typical African state. The flip side of that remains the possibility that the regional mechanism will stunt national level developments to strengthen domestic capacity to prosecute atrocity crimes. Nonetheless, in the realm of the criminal law section, a number of scholars have noted that the creation of the African Court provides an opportunity for the development of international criminal law.Footnote ⁹⁹ The proliferation of regional criminal justice systems reflect opportunities for the development of ICL. It is suggested that the new court in Africa will have a relative advantage in the implementation of international criminal justice approaches that reflect the cultural norms and political economic realities and histories that constitute an African conception of justice.

6. Some Innovative Aspects of the Proposed Regional Court

The regional court could be better equipped to take into account variations in procedural traditions and address charges of a foreign institution imposing its will;Footnote ¹⁰⁰ and a regional criminal court could theoretically help to fill an impunity gap by prosecuting situations that the ICC does not or cannot because of its limited jurisdiction and resources pursue.Footnote ¹⁰¹ When it comes to the crimes, for instance, Charles Jalloh has suggested that the Malabo Protocol reflects a Rome Statute or ICC Plus approach in at least two ways. First, the ICC crimes were taken as a starting point for defining the crimes, but not necessarily as the end point. This is reflected in Article 28A of the Malabo Protocol which defines the crimes. For example, in adopting the same definition of genocide as that contained in the ICC Statute, Article 28B of the Malabo Protocol ensures compatibility with Article 6 of the Rome Statute and the definition of the same crime contained in the 1948 Genocide Convention. Nonetheless, to reflect developments that occurred in the African continent since the ICC Statute was negotiated, the Malabo Protocol added a new paragraph f to Article 28B (which defines genocide) to account for developments in the Akayesu Case in which rape was judicially determined to constitute genocide if it occurs in such a context against a protected group. This was then further expanded by the Malabo Protocol definition to capture acts of rape or ‘any other form of sexual violence’, thereby addressing a traditional gender blind spot in international criminal law.

A second manifestation of this Rome Statute or ICC Plus approach can be seen in the addition of serious crimes of particular concern to Africa as prosecutable offences in the regional court. One of the best examples of this is the crime of unconstitutional change of government (Article 28E). Here, the addition of new crimes that are not prosecutable in the ICC because they are not within its jurisdiction can be seen as further justification for the Malabo Protocol. In this regard, Jalloh has gone further and suggested that, so long as a regional court does not pursue a Rome Statute or ICC Minus approach, meaning a reduction of the standards contained therein, the development of additional crimes or better definitions of existing ones could be seen as an addition to the corpus of international criminal law. This helps, to the extent that the problem of fragmentation of the development of such crimes or inconsistency in their application can be avoided.

Put slightly differently, in his argument, the Rome Statute is better understood as having established a floor rather than a ceiling for accountability. Any credible system that adds to the accountability effort which potential the Malabo Protocol holds should in that conception be welcomed as a way to extend the reach of international criminal law. Relatedly, regional systems can benefit from states with greater socio-economic, environmental and security interdependence, because it encourages greater compliance with the decisions of regional bodies, and regional mechanisms like the criminal tribunal can help to serve as intermediaries between the state’s domestic institutions and the global system.Footnote ¹⁰²

In the General Affairs Section, the Court enjoys inherent competence over all cases and all legal disputes submitted to it relating to an incredibly broad range of issues. This includes the interpretation and application of the AU’s Constitutive Act; the interpretation, application or validity of other AU treaties and all subsidiary legal instruments adopted within the framework of both the AU and its predecessor the OAU. Jurisdiction also exists with respect to acts, decisions, regulations and directives of the AU organs; all matters specifically provided for in any other agreements that States Parties may conclude among themselves or with the AU and which confers jurisdiction on the tribunal. As if that is not sufficiently broad, the general jurisdiction can also address any question of international law. Moreover, the Court will also have appellate jurisdiction and can thus hear any matters or appeals that may be referred to it, and agreements that AU member states or RECs or other international organizations recognized by the AU may conclude among themselves or with the AU.

This extraordinary competence for a regional court is matched by a directive allowing the judges to invoke both regional (African/AU) law to resolve disputes as well as to rely on the traditional sources of general international law. In the result, it seems clear enough that to the extent that African States invoke these provisions to settle matters against other African States in the regional court, much judicial work can be generated for the future court to settle disputes on a wide variety of issues. It is an open question whether African States would choose to settle disputes against other African States in an African Court rather than prefer the International Court of Justice. Surely, on the regional issues that can only be settled in the African Court, there could be the draw of using the available forum. Cost of litigation might also be lesser if kept within the region. But when it comes to international legal questions (‘any question of international law’), it may well prove to be more attractive to African States to pursue a case in an established and globally known court in The Hague rather than in a fledgling and untested court in Arusha.

With respect to the Human Rights Section and jurisdiction, there are two broad types of jurisdiction which match the experience of other regional human courts in the sense of an inter-state dispute settlement system meant for use by the States to hold each other accountable and a system for individual complaints against their home states (which have entered the special declaration to enable that). Article 3 of the Protocol to the African Court on Human and Peoples’ Rights provides for the jurisdiction of the Court in relation to all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and any other relevant Human Rights instrument ratified by the States concerned. This is a truly wide jurisdiction that enables the judges to examine holistically the human rights violations of a given African state, without limiting it to particular instruments. In other words, if for instance a party to the African Human Rights Charter and also the International Covenant on Civil and Political Rights, the ruling can address the allegation of violations under all two instruments. In the subsequent iteration of this competence, the tribunal will also has specific competence in relation to the interpretation and the application of the Charter on Human and Peoples Rights on the Rights of Women in Africa. A second type of jurisdiction is more advisory in nature and offers the possibility for a member state of the AU, any of its organs, or any African organization recognized by the AU, to request that the Court provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments. This has occurred, as of this writing, in relation to only one State (Mali) but apparently not any organ. The only rider for any such empowered entities is that the subject matter of the opinion should not be related to a matter being examined by the Commission.

In terms of innovativeness, it is apparent that the future court will also have broad jurisdiction over human rights issues specifically alongside international law issues more generally. However, given that many states do not initiate disputes against other states concerning human rights matters (which has been the experience of not just the African system but also that of the Inter-American human rights system and the European human system – albeit to a lesser extent), the reality may be that we might not expect a large docket from the court arising from complaints about violations of human rights by African state A versus African state B. In relation to individual complaints, because of the hurdle of the special declaration required with only 7 African States having so far entered them (i.e., many cases have not yet been addressed by the tribunal – at least in so far as the merits are concerned). Indeed, in a sort of signal of what is the come, the very first case to have reached the current human rights courts in Arusha involved Senegal; the case was dismissed for lack of jurisdiction since that West African state had not yet entered the special declaration accepting jurisdiction in relation to individual complaints of human rights violations.

Returning to the criminal law section, reconstituting international criminal justice as a regional idea will add significance to international criminal law.Footnote ¹⁰³ For example, the African court will be one of the first courts to include corporate criminal liability in its statute.

7. Key Future Challenges for the African Court

Various scholars, in this volume and outside of it, have raised concerns about the AU’s ability to meet the fiscal implications of vesting the African Court with an international criminal jurisdiction, alongside an expansive general and human rights jurisdictions.Footnote ¹⁹⁵ Scholars have repeatedly noted that a vast amount of money is required to ensure proper staffing and capacity for international criminal trials, especially with such an extensive list of crimes as that of the Malabo Protocol, and in light of the chronic underfunding of the AU and its institutions.Footnote ¹⁹⁶ This includes the reliance on external funders, from outside of the continent, for some of its programmatic needs. Scholars have insisted that the high cost of international criminal prosecutions derives mainly from the excruciating evidentiary processes associated with criminal prosecutions, noting that proving a case beyond reasonable doubt involves an investment of huge financial and time resources, comprehensive and expensive investigations, exhaustive examination of extensive materials, opportunities to question witnesses, lengthy judgments, and the servicing of different levels of chambers within the Court itself, each of which have distinct mandates and staff.Footnote ¹⁹⁷

8. General Overview of the Volume

The volume is divided into five parts. Part I situates the tribunal in the wider context of the more recent transitional justice and accountability efforts in Africa. The six chapters in this section start with the necessary background, exploring the place of the African Court as the first regional mechanism anywhere in the world to contemplate as part of a longer historical fight between regionalism and universalism, of the kind seen in the early development of international human rights law (Charles Jalloh). This is followed by a discussion of the peace versus justice debate in the context of sequencing of justice and the management of violence on the continent (Kamari Clarke). A third piece focuses on the AU’s transitional justice policy framework and how it fits in the AU’s emerging AGA (George Wachira). The next chapter further fleshes this out by putting the differentiated accountability systems of the court as a judicial mechanism against the wider AU transitional justice architecture (Tim Murithi). The important issue of concurrent jurisdiction of the ICC and the African Court in the case of concurrent referrals is then analyzed (Erika de Wet), followed by a more theoretical discussion of the African Court as a form of emancipatory politics (Adam Branch).

Part II of the volume delves into the criminal jurisdiction of the African Court. The first section of which takes up 15 chapters that address the crimes. The first chapter takes up the more theoretical challenge of identifying the nature of the wide mix of crimes included in the Malabo Protocol (Charles Jalloh), while the second hones in on the ‘international crimes’ contained within it (Daniel Nsereko and Manuel Ventura). Given its importance, the next chapter takes up genocide and other international crimes by unincorporated groups and whether there could be loopholes for them in the African Court (Hannibal Travis). This is followed by analysis of the always controversial crime of aggression (Sergey Sayapin). The volume then transitions to the more ‘transnational’ crimes part of the Malabo Protocol. The authors examine the wider category and then specifically drug trafficking (Neil Boister), followed by piracy (Douglas Guilfoyle and Rob McLaughlin); the crime of terrorism (Ben Saul); mercenarism (José Gomez del Prado); corruption (John Hatchard); money laundering (Cecily Rose); human trafficking (Tomoya Obokata); dumping of hazardous wastes (Matiangai Sirleaf); and illicit exploitation of natural resources (Daniëlla Dam and James Stewart). A last chapter addresses unconstitutional change of government, which in many ways, is sui generis (Harmen van der Wilt).

Section 2 of Part II then picks up on institutional and procedural issues. Here, three chapters cover; complementarity (Margaret deGuzman); defence and fair trial rights (Melinda Taylor) and the issue of state cooperation (Dire Tladi). The next section continues with modes of liability and individual criminal responsibility (Wayne Jordash and Natacha Bracq); corporate criminal liability (Joanna Kyriakakis); the issue of immunity (Chile Eboe-Osuji and Dire Tladi); defences to criminal liability (Sara Wharton); sentencing and penalties (Mark Drumbl); and the right to reparations for victims as well as victim participation (Godfrey M. Musila).

Part III of the book then takes up the human rights jurisdiction of the court, with two chapters. The first examines the broad issue of the competence on human rights matters (Rachel Murray) and the possible complementarity between the Human Rights mechanism in Africa with the International Criminal Law Section of the court (Pacifique Manirakiza).

In Part IV, we shift to the general jurisdiction and start with a focus on the wider question of jurisdiction (Edwin Bikundo) and the administrative law aspects of that jurisdiction (Adejoké Babington-Ashaye).

Finally, Part V of the volume then takes up some of the thorniest issues. The first of which relates to financing and sustaining the African Court. Here, Vincent Nmehielle takes a more general and more hopeful tone compared to the contribution of Stuart Ford who focuses on the criminal jurisdiction and expresses more doubt than hope. The last chapter then offers a more general civil society advocate critique the proposed court (Netsanet Belay and Japhet Bigeon.)

Through this volume, we hope to have detailed some of the most significant developments that have emerged with the Malabo Protocol for the African Court as well as key issues that are bound to arise over the next phase of its operationalization. By framing the future of an African court with three jurisdictions within a longer history and social and political context, and subjecting it to deep legal analysis, we have taken on the quest to highlight the critical role that the African region appears to be playing in contributing to the ongoing development of international law. By including analyses of its history and context, raising important considerations and critically and constructively engaging with its provisions, we map out a range of possibilities through which to make sense of its emergent future. This is the spirit with which the editors and authors of this volume engage with the Malabo Protocol for the African Court. It is a spirit of betterment and improvement. This can only aid in shaping international law in ways that reflect African countries and their related concerns.