Africa’s silent crime: towards recognising ecocide under the Malabo Court Protocol

2.1.1 The illusion of protection: article 24 and its limits on legal environmentalism

Article 24 of the African Charter recognises the right of all peoples to ‘a general satisfactory environment favourable to their development’. On its face, this provision appears progressive, even visionary as it was among the earliest regional human rights instruments to explicitly mention environmental rights.58 Du Plessis argues that although article 24 is regarded as an environmental right, its scope stretches in typical anthropocentric style far beyond eco-centric type environmental concerns.59 People have the right to a ‘general satisfactory environment’, a phrase which, when read with the caveat that the environment should be favourable to peoples’ development, implies at a minimum that an equilibrium should exist between peoples’ natural environment and other factors necessary for development, including economic, social and cultural factors.60

However, upon closer examination, article 24 suffers from profound structural and interpretive weaknesses that render it more symbolic than substantive, especially when viewed through the lens of ecological destruction and the unrecognised crime of ecocide.

To begin, the language of article 24 is vague and non-committal. The phrase ‘general satisfactory environment’ lacks legal precision, offering no clear standard or threshold for what constitutes environmental harm, nor any benchmark for determining when a violation occurs. This want of definitional clarity creates interpretive ambiguity, leaving the provision open to minimalist readings that fail to capture the severity of large-scale ecological damage. The term ‘favourable to their development’ introduces another layer of conceptual ambiguity; does development refer to economic advancement, cultural survival, health, or intergenerational justice? Without elaboration, this provision lends itself to rhetorical invocation rather than practical enforcement.

Furthermore, article 24 is drafted as a peoples’ right , not an individual right. While this collectivist framing is consistent with the Charter’s broader emphasis on communal rights, it raises significant enforcement challenges.61 In practice, peoples’ rights often lack direct justifiability, and mechanisms for determining who constitutes ‘a people’ remain contested in many African jurisdictions.62 This legal abstraction allows states to avoid accountability for environmental harm by hiding behind the vagueness of collective entitlement, even when entire communities suffer the consequences of extractive violence.

In addition, the provision is silent on duties particularly state obligations to prevent, redress, and punish environmental destruction. Without explicit procedural guarantees, such as access to environmental information, public participation, or judicial redress, article 24 reads as a noble aspiration rather than an actionable right. Worse still, the Charter offers no accompanying provision that defines or criminalises acts of severe environmental harm. This leaves African legal systems incapable of responding to ecocide, even when the facts are overwhelming and the damage irreparable. The interpretive jurisprudence of the African Commission has sought to breathe life into article 24, particularly in the landmark SERAC v Nigeria decision.63 Yet even this bold judgment did not elevate environmental destruction to the level of a punishable wrong let alone recognise it as a crime against humanity or nature. What emerges, then, is a legal regime that acknowledges environmental harm but stops short of confronting its agents or constructing a deterrent framework. The provision acts like a ceremonial curtain, draped across the Charter’s surface behind which ecological injustice plays out with impunity.

In the context of ecocide, article 24 is thus emblematic of the African human rights system’s broader failure: a promise unfulfilled, a norm without teeth. It symbolises the Charter’s unwillingness to name the crime that haunts African soil, the deliberate, large-scale destruction of ecosystems for profit and power. Without urgent reform, including the codification of ecocide as a standalone crime, article 24 will remain a ghost in the legal text; present but incapable of protecting what it proclaims to defend.

2.1.2 The African Revised Nature Convention: strong in aspiration, weak in enforceability

The African Convention on the Conservation of Nature and Natural Resources, first adopted in Algiers in 1968 and revised in Maputo in 2003 (African Revised Nature Convention),64 is Africa’s most comprehensive legal instrument on environmental governance. It offers an ambitious and integrated framework for the sustainable management of natural resources, the protection of biodiversity, and the regulation of harmful activities across land, water, and air. On paper, the African Revised Nature Convention is an environmental manifesto for the continent, progressive in scope, ecocentric in spirit, and commendable in its rhetorical commitment to sustainability, intergenerational equity, and participatory governance.65 Yet, despite its lofty aspirations, the African Revised Nature Convention remains a juridical toothless tiger, long on principles but short on enforceable mandates.

The African Revised Nature Convention’s legal status is marred by inertia. To date, a majority of AU member states have failed to ratify or domesticate it. This poor ratification record undermines the Convention’s authority as a continent-wide standard.66 Unlike the African Charter, which has enjoyed near universal ratification within the continent and forms the basis for judicial interpretations at the African Court on Human and Peoples’ Rights (African Court) and African Commission on Human and Peoples’ Rights (African Commission), the African Revised Nature Convention floats in limbo. Its ambitious provisions remain unenforceable suggestions rather than binding obligations to majority of African non states parties.

Amechi rightly observes that the African Revised Nature Convention provides institutional structures aimed at facilitating implementation by state parties and includes mechanisms intended to promote compliance and enforcement.67 While this is a commendable feature, this article contends that, despite such provisions, the Convention lacks a truly robust and coercive institutional enforcement framework capable of addressing large-scale environmental harm, particularly those acts that may rise to the level of ecocide.68 There is no judicial or quasi-judicial body established under the Convention to interpret its provisions, review state compliance, or provide remedies for violations. In contrast to instruments like the African Charter, which have the African Commission and Court as enforcement avenues, the Convention relies entirely on political goodwill, state reporting, and intergovernmental cooperation, tools which have historically proven ineffective in compelling environmental compliance in Africa. In this respect, the Convention is more of a policy guideline than a rights-anchored legal instrument.

The African Revised Nature Convention is conspicuously silent on accountability for serious or systemic environmental harm. It fails to define environmental crimes, and there is no reference to ecocide or any other form of international environmental criminal liability. This normative omission is particularly damning in a region plagued by large-scale environmental atrocities from the Niger Delta’s oil-choked creeks to the deforested lungs of the Congo Basin. These acts often involve transnational corporations, complicit state officials, and lasting ecological devastation, yet the Convention offers no legal scaffolding to trigger criminal investigations, prosecutions, or reparative action. The Convention suffers from a disconnection between environmental protection and human rights enforcement. While it acknowledges the intrinsic value of nature and sustainability, it does not explicitly link environmental destruction to the violation of human rights, nor does it align itself firmly with the African Charter’s jurisprudence. This disjuncture reinforces the siloed nature of environmental governance on the continent where environmental law operates in isolation, rather than as a pillar of human dignity and justice.

In sum, the Convention reflects the paradox of African environmental governance: it aspires to ecological justice but lacks the legal, institutional, and political muscle to achieve it. It is emblematic of a broader pattern in the continent’s legal landscape where powerful declarations are made in the preamble, but accountability disappears in the operative clauses. Without legal reform that bridges this aspiration-enforcement gap including the elevation of ecocide as a punishable crime, the Convention will continue to speak eloquently about nature while standing mute in the face of its destruction.

2.1.3 The legal void: absence of ecocide in domestic African law

In a landmark advisory opinion, the International Court of Justice has clarified that states have binding legal obligations under international law not only to protect the climate system and the environment, but also to prevent harm, cooperate across borders, and provide reparations where damage occurs.69 While the continental silence on ecocide is well-documented, this normative gap is compounded and entrenched by the lack of explicit recognition of ecocide in the domestic legal frameworks of many African states, especially those most vulnerable to environmental devastation. Countries rich in natural resources and prone to ecological crimes, such as Nigeria,70 the

Democratic Republic of Congo (DRC),71 Angola, and South Africa,72 have failed to criminalise ecocide within their national legislations. This omission not only perpetuates environmental harm but also marginalises indigenous and local communities whose rights and livelihoods are destroyed in the process. While many African states maintain standalone environmental protection laws and include penal provisions targeting environmental harm, these legal frameworks often fall short of meeting the gravity, scale, and intent thresholds required to qualify as ecocide. As a result, the most egregious and systemic acts of environmental destruction continue to evade categorisation as international crimes, thereby undermining deterrence and accountability.

As afore mentioned, these states possess environmental laws that tend to regulate specific activities such as mining, forestry, and pollution control largely through administrative permits and regulatory standards rather than through criminal sanctions for the wholesale destruction of ecosystems. Where environmental protection statutes exist, they often focus on preventing or mitigating damage, lacking provisions that criminalise intentional, reckless, or systematic ecological destruction. Consequently, severe acts of environmental harm such as illegal mining, oil spills, and deforestation are addressed as regulatory infractions or civil wrongs, if at all, rather than as crimes of ecocide demanding prosecution and punitive action.

Moreover, the absence of domestic ecocide laws perpetuates a vicious cycle, reinforcing the continental gap in environmental justice. Without clear national laws defining and punishing ecocide, the African regional legal framework faces an uphill battle in establishing accountability. The domestic legal vacuum undermines efforts to create harmonised continental standards or to empower regional courts with jurisdiction over ecological crimes. It also reflects deeper political and economic realities, where short-term resource extraction goals and governance weaknesses discourage robust environmental crimina-lisation.

2.2.1 Thrones of impunity: the political economy of environmental justice

In Africa, environmental degradation is not merely a by-product of underdevelopment; it is actively perpetuated by political elites, transnational corporations, and state structures complicit in extractive violence.76 The phrase ‘thrones of impunity’ captures this web of economic and political power, where wealth is built on ecological ruins and justice is smothered beneath diplomatic immunity, corporate lobbying, and selective law enforcement.77

Take the Niger Delta in Nigeria, a region emblematic of environmental collapse engineered under state watch.78 For over six decades, multinational oil companies, notably Shell and Eni, Chevron, and Total , have extracted crude oil while discharging toxic waste into rivers, flaring gas day and night, and rupturing pipelines that spill millions of barrels of oil into fragile ecosystems.79 The Bodo oil spills of 2008 and 2009 , where 11 million gallons polluted the creeks and mangroves, devastated the livelihoods of over 15,000 Ogoni fishermen.80 While Shell eventually agreed to an out-of-court settlement, no criminal accountability followed , and the structural conditions for further damage remain unchanged.81 The Nigerian government, deeply entangled in oil revenues, has consistently failed to regulate these companies or enforce environmental standards, making it both culpable and complicit.82

In the DRC , the mining of cobalt, copper, and colta , critical to the global green energy transition, has brought anything but sustainability.83 Mining giants such as Glencore, China Molybdenum and Huayou Cobalt operate in near-lawless zones where toxic waste is dumped into rivers, forests are razed, and workers (often children) labour in inhumane conditions.84 Villages around Lake Katwe and the Shinkolobwe mine suffer from birth defects, cancer, and water contamination, yet attempts to hold these companies accountable, either domestically or through regional mechanisms, have been futile. The Congolese state, mired in corruption and reliant on mining royalties, has no incentive to disrupt this chain of exploitation.85

In South Africa , the coal industry, led by entities like Eskom and Sasol, has choked communities in Mpumalanga , where air pollution levels have surpassed safe thresholds established by the World Health Organization.86 The Highveld Priority Area, intended for special environmental protection, has become one of the most toxic airspaces on the planet. Despite a court ruling in 2022 mandating the government to act, enforcement has been piecemeal, and corporate polluters continue operations without serious regulatory con-sequences.87

In Tanzania, the forced evictions of the Maasai people from the Ngorongoro Conservation Area under the guise of conservation and tourism development often linked to elite-backed safari companies and foreign investors demonstrate another angle of environmental injustice: dispossession in the name of ‘sustainable development’ .88 The state’s alliance with the private sector turns indigenous peoples into environmental refugees, without legal remedy or access to regional justice.

Similarly, in Zambia , the Kabwe lead mine , once operated by British colonial interests and later nationalised, has turned Kabwe into one of the most polluted towns in the world . Lead poisoning affects over 90 per cent of children in the area, impairing cognitive development and overall health.89 Although a class action lawsuit has been filed in South Africa against Anglo American , the case has faced significant legal resistance. No one has been criminally prosecuted, and neither Zambia’s judiciary nor its environmental agencies have mounted a credible response to what amounts to generational ecocide .90

Across the continent, elite impunity is fortified by weak investigative institutions, underfunded environmental regulators, and selective judicial interventions . The problem is not merely the absence of laws but the absence of political will to enforce them. For instance, many African states are party to treaties such as the African Charter , the African Revised Nature Convention , and the Bamako Convention on Hazardous Waste , yet compliance is often symbolic . Reports are filed, but communities continue to drink poisoned water and breathe poisoned air .

Thus, the political economy of environmental justice in Africa is rigged in favour of power, profit, and passivity. The absence of ecocide in the Malabo Court Protocol is not an oversight; it is a symptom of institutionalised impunity , where those seated on thrones, whether in parliament, boardrooms, or palaces, have no incentive to legislate against the very structures that sustain their rule. If environmental justice is to be achieved in Africa, the thrones of impunity must be unseated. This demands not only legal reform but a political reckoning, where corporate ecocrimes are prosecuted as crimes against humanity , and where communities are empowered to reclaim the ecological destiny stolen from them .

2.2.2 Jurisdictional labyrinths and the vanishing voice of the earth

The dream of environmental justice in Africa finds itself entrapped within a dense legal maze, a jurisdictional labyrinth where the cries of the earth are either lost in procedural silence or drowned in political compromise . While Africa has made notable strides in building normative frameworks and continental institutions, their effectiveness in addressing environmental atrocities, especially those bordering on ecocide , remains deeply flawed. This section interrogates the jurisdictional reach and institutional coherence of the African Court and the prospective African Court of Justice and Human and Peoples’ Rights, engineered by the Malabo Court Protocol , whose promises of criminal accountability are marred by contradictions, exclusions, and troubling immunities.

The African Court , established under the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights (African Court Protocol),91 was intended to provide a binding judicial forum to enforce the rights enshrined in the Charter. Yet, it is institutionally and jurisdictionally limited in both scope and access .92 Only twelve of the AU’s 55 member states have ever made an article 34(6) declaration allowing individuals and NGOs to submit cases directly to the Court.93 Of these states, five - Rwanda, Tanzania, Benin, Côte d’Ivoire and Tunisia - have subsequently withdrawn their declarations after adverse rulings, thereby undermining the very fabric of regional judicial accountability .94 Even where access is granted, environmental claims could face doctrinal hurdles , as the Court lacks an explicit environmental jurisdiction and must shoehorn such issues under the right to life, health, or development, an interpretive stretch that dilutes legal precision and remedial effectiveness.95

The Malabo Court Protocol, which is yet to enter into force due to a lack of ratifications, proposes to integrate into the to-be-established African Court of Justice and Human Rights a third chamber with international criminal jurisdiction to establish the African Court of Justice and Human and Peoples’ Rights . Amongst others, it criminalises in articles 28L and 28L bis the crime of ‘trafficking in hazardous wastes’ and ‘illicit exploitation of natural resources’, respectively. While this appears commendable, ecocide is not explicitly included as a crime. The Malabo Court Protocol lacks a comprehensive definition of environmental destruction that captures widespread, long-term, or severe damage to ecosystems. This conceptual vagueness leaves space for minimalist interpretations and jurisprudential inconsistency .

Nevertheless, the Malabo Court Protocol exhibits progressive innovations that in some respects exceed even the ICC’s Rome Statute. These include the insertion of no statute of limitations, ensuring accountability over time,96 recognition of command responsibility, ensuring that high-level political and military leaders are not shielded by the chain of command;97 the explicit recognition of corporate criminal responsibility, a breakthrough in a continent where corporate complicity in environmental atrocities is rampant but rarely accounted for;98 and the non bis in idem rule.99 However, these gains are undermined by the controversial article 46A bis , which grants blanket immunity to sitting heads of state and other senior government officials during their tenure. This immunity clause is antithetical to the foundational logic of international criminal law , which seeks to pierce the veil of sovereign impunity.100 By entrenching impunity at the apex of power, the Malabo Court Protocol sabotages its own normative aspirations . In the environmental context, this is particularly troubling, as many of the most egregious environmental crimes in Africa are perpetrated or sanctioned by state authorities and their transnational partners. Immunities effectively immunise destruction.

The jurisdictional design of African judicial bodies also lacks an environmental legal corpus . Unlike the Inter-American,101 or European systems,102 where environmental jurisprudence is gradually being mainstreamed, the African Court has no consistent legal doctrine, procedural guidelines, or enforcement tools tailored to environmental harm. There is no regional framework for collective environmental litigation , no standing for nature or future generations, and limited integration of scientific and indigenous ecological knowledge into adjudicatory processes. This epistemic gap reflects a broader ecological marginalisation within Africa’s human rights architecture.

In short, Africa’s emerging criminal jurisdiction represents a symbolic triumph and a practical entrapment . While it gestures toward environmental accountability, the institutional architecture is so fraught with legal ambiguities, political immunities, and jurisdictional fragmentation that it may serve more as a smokescreen than a shield . Without radical reform, especially the removal of article 46A bis , codification of ecocide as a standalone crime , and universal access to regional courts , Africa risks becoming a theatre of ecological impunity without the power to judge. In a nutshell, the vanishing voice of the Earth is not merely poetic, it is political. And unless this voice is carved into the chambers of Africa’s courts, it will continue to be buried beneath the weight of bureaucratic silence and elite complicity.