Choosing the ballot not the bullet: an analysis of the prospects of resolving Unconstitutional Changes Of Government in Africa under Article 28E of the Malabo Protocol

Abstract

The focus of this study is on Article 28E of the Protocol on the Amendments to the Protocol of the African Court of Justice and Human Rights Protocol (Malabo Protocol) which provides for the crime of Unconstitutional Changes of Government (UCG). The jurisdiction to try international crimes was conferred on the African Court of Justice and Human Rights in 2008 when the AU decided to streamline the existing Protocols. This study assesses how far Article 28E can go to resolve the phenomenon of UCG in Africa. It takes a critical approach to the framing of the provision by comparing it to Statutes that previously provided for UCG such as the African Charter on Democracy, Elections and Good Governance. The challenge presented by Article 28E is the failure to provide a clear and precise definition for UCG that can serve as a guide for the Court when interpreting and applying the provision. The study thus poses that the likely consequence of this oversight is that At1icle 28E will prove inadequate to tackle the diverse manifestations of UCG in the continent. This requires a revision of the provision to take into account the realities of a diverse Africa.