The Crime of Unconstitutional Change of Government

Abstract

The entry into force of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (hereinafter the Malabo Protocol) will imply the activation of the International Criminal Law Section of the African Court of Justice and Human and Peoples’ Rights, along with the new crimes there included — among them, the crime of unconstitutional change of government. While the African Union (AU)’s concern over these changes of government is understandable, the criminalization of them raises several doubts. First, the lack of precision in the wording makes it difficult for both judges and individuals to know what is prohibited and what is not. This, along with the AU’s approach to popular uprisings, entails a serious risk for the Criminal Section of the Court to be used in accordance with political considerations of the regional organization. Finally, the combination of the crime with the immunity clause, also contained in the Protocol, greatly impedes the achievement of the criminalization’s goal.