Odinkalu charges African countries to ratify Malabo Protocol against unconstitutional change of government

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*By Paul Ejime

Chidi Anselm Odinkalu, professor of human rights and former Chair of Nigeria’s National Human Rights Commission, has charged African governments to ratify the 2014 Malabo Protocol, which prescribes prosecution and punishment of politicians, soldiers and mercenaries who subvert constitutional rule on the continent.

Departing from his prepared paper as Guest Speaker at the 2023 International Conference of the ECOWAS Community Court of Justice, which opened on Monday 22 May in Banjul, the Gambian capital, Odinkalu, a lawyer and human rights activist, lamented that no African country had ratified the protocol since its adoption.

The protocol is a culmination of a protracted and complex process, expanding the jurisdiction of the African Court of Justice on Human Rights (ACJHR) to cover crimes under international law as well as transnational crimes.

Odinkalu challenged The Gambia, as host of the Conference on “Zero Tolerance for Unconstitutional Change of Government,” and also headquarters of the African Commission for Human and People’s Rights, to ratify the protocol and set an example for other African countries.

He explained that the ratification would pave the way for the protocol’s operationalisation and the trial of deviants at the ACJHR.

Chronicling military coups worldwide, Odinkalu said Africa accounted for 48.3% of all successful coups since 1950, with West Africa alone producing 169.

According to him, Burkina Faso holds the dubious honour with eight successful coups out of nine, followed countries such as Nigeria and Benin Republic. Cabo Verde is the only exception. 

Describing coups as a “symbolism that has its origin in colonialism,” the guest speaker said, the Berlin 1884 Conference on the Scramble for Africa was also a coup, and so was the assassination of Julius Caesar as narrated by William Shakespeare. 

The human rights activist also described the French Emperor Napoleon Bonaparte as “a coup plotter.”

However, he said the notion that “a military coup is a self-legalising illegality” must be jettisoned as Africa searches for solutions to the resurgence of military incursions in politics.

He alluded to difficulties with some existing legal frameworks and protocols as well as the challenges of coordination.

Odinkalu also identified some norms at play as regards the African Union and its Regional Economic Communities, such as ECOWAS, on the legitimisation of access to power through elections, tenure elongation and unconstitutional change of government, noting that it was not enough to condemn soldiers while ignoring political adventurers, who carry out constitutional and political coups, or use court orders for tenure elongation and subversion of national constitutions.

He said the continent must also deal with popular uprisings and the protection of court judges.

Declaring the Conference open, the Gambian President Adama Barrow, represented by vice President Muhammad Jallow, said “Zero tolerance for unconstitutional changes in government should not just be a slogan; it should reflect in our actions, in our policies, and in our laws.”

“Let our discussions guide us towards a future marked by peace, unity, prosperity, and an unwavering commitment to constitutional order,” he added.

In his address of welcome, the President of the ECOWAS Community Court of Justice, Justice Edward Asante, said the annual Conference was the regional Court’s most important programme, which “provides an excellent forum for cross fertilization of ideas by the legal experts, resource persons and participants, on themes with regional significance from a regional perspective.”

He described the theme this year as a burning issue, given military interventions in governance through military coups in the past two years in three ECOWAS member States – Mali, Guinea, and Burkina Faso. 

“As we speak, these member States are under military dictatorships and have been suspended from the Community by the Authority of Heads of State and Government,” Justice Asante said.

He expressed optimism that the outcome of the conference “will be useful in charting a way forward to prevent future unconstitutional changes of Government within our sub region.”

The opening ceremony also featured welcome statements and goodwill messages from Heads of ECOWAS Institutions including the ECOWAS Commission President Omar Alieu Touray, represented by the ECOWAS Resident Representative to the Gambia Miata French, as well the Gambian Justice Minister and Chief Justice, among others.

Presenters and attendees of the Conference include Justice Ministers and Attorneys General, eminent Judges and Lawyers from ECOWAS member States, as well as constitution, governance, human rights, and election experts. 

*Paul Ejime, a Global Affairs Analyst, is a Consultant on Strategic Communication, Media Development, Governance Issues, Peace & Security and Election. (GBN)

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