Development of Unconstitutional Change of Government under the Malabo Protocol – From Prohibition to Over-Criminalisation?

Abstract

Post-colonial Africa has been caught in military coups and civil wars. Incumbent leaders have refused to step down and hand over power post-elections or amended the constitution to not get voted out of power. In this context, three main challenges to democracy in Africa are military coups, lack of free and fair elections and illegal constitutional amendments to entrench de facto monarchy. To combat this, the Malabo Protocol, which introduces criminal jurisdiction of the African Court of Justice and Human Rights, criminalises unconstitutional change of government (‘UCG’). The article outlines the progression of UCG from a violation of the democracy and rule of law principles under the African Charter to a prosecutable crime under the Malabo Protocol and analyses the difficulties an actual prosecution will face on account of vague definition, lack of international recognition and the major roadblock due to Heads of State immunity under the Protocol.