By Adoba Echono, Banjul, The Gambia
African Union (AU) Member States have been urged to ratify the 2014 Malabo Protocol of the African Union which extends the jurisdiction of the yet to be established African Court of Justice on Human Rights (ACJHR) to include crimes under transnational law and transnational crimes.
The call was made by Professor Chidi Odinkalu, the Guest Speaker at the 2023 international conference of the ECOWAS Court taking place in Banjul, the Gambia.
In June 2014, the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Malabo Protocol) was adopted by the African Union.
The Malabo Protocol provides for the inclusion of criminal jurisdiction within the remit of the proposed African Court of Justice and Human Rights (ACJHR).
The Protocol invests the Court with the jurisdiction to try 14 different crimes, including genocide, crimes against humanity and war crimes and emerged from a rigorous process designed to enhance the jurisdiction of the Court in response to the dynamics of the international environment.
In his keynote address at the opening of the conference, Professor Odinkalu lamented that no African country has ratified the Protocol, which will create a third section in the ACJHR with responsibility for international law in the Court.
Professor Odinkalu who spoke on the topic: ‘Zero Tolerance for Unconstitutional Change in Government in West Africa: democracy and rule of law for sustainable development’, challenged the Republic of The Gambia to take the lead in the ratification, as host for the conference and the headquarters of the African for Human and Peoples’ Rights.
Professor Odinkalu, former Chairman of Nigeria’s National Human Rights Commission, said the ratification of the Protocol will pave way for its operationalization, noting that Africa accounted for 48.3 per cent of all successful coups since 1950 with West Africa alone accounting for 169 of the coups.
According to him, Burkina Faso has recorded the highest number of coups in the continent, with eight successful coups out of nine followed by other countries including the Republic of Benin and Nigeria with Cape Verde being the only exception in the phenomena of coups in the continent.
He added that it was not enough to condemn soldiers for encroaching on the democratic space, this should be extended to political adventurers who carry out constitutional and political coups or use court orders for tenure elongation and the subversion of national constitutions.
In a goodwill message, the Chief Justice of the Gambia, Justice Hassan Bubacar Jallow said faithful adherence to constitutional principles must be the bedrock of governance as those in authority must not be permitted to manipulate and subvert the constitution for their own ends.
According to Justice Jallow, “those aspiring to power must do so through the constitutional processes which are based on the cardinal principle that government must be with the consent of the people – that it must be of the people, for the people and by the people.”
“Unconstitutional changes of government which deny the people their fundamental right to choose their government as enshrined in our national Constitutions, the African Banjul Charter on Human and Peoples Rights, declarations of the African Union and of the ECOWAS as well as the Universal Declaration of Human Rights amongst others must be condemned and resisted as a major violation of this important collective right of the community.”
These rights and freedoms must be respected by public as well as private authorities; National as well as regional mechanisms for their enforcement needs to be strengthened and made use of, Justice Jallow explained.
The four day 2023 international conference of the Court is being attended by about 150 academics, jurists and lawyers.
In retrospect, the Malabo Protocol provides for the ACJHR to seek the cooperation or assistance of regional or international courts.