Africa’s leaders now face the challenge of convincing their citizens that a continental court will address justice, rather than operate as an instrument for their self-preservation.

Kenya’s Cabinet Secretary for Foreign Affairs and International Trade Amina Mohammed reportedly said that 11 countries, out of the required 14, had signed the Malabo Protocol to expand the jurisdiction of the African court.

However, The EastAfrican established that only five countries signed the protocol on the expanded jurisdiction of the Arusha-based African Court of Human and People’s Rights. They are Kenya, Benin, Mauritania, Tanzania and Guinea Bissau. Kenya has offered to donate $1 million to the court; the expanded mandate will need $4 million annually.

Questions arising are if the expanded jurisdiction will work for the continent, and whether it is complementary or a replacement of the International Criminal Court.

READ: Kenya's ICC withdrawal push receives cold shoulder in Addis

Legal experts say that Uganda, which has referred the case of the Lord’s Resistance Army (LRA) to the ICC, is cautious about signing the protocol that would be seen to be undermining the international court. Rwanda is not a signatory to the Rome Statute.

Nicholas Opiyo, a Ugandan lawyer and political commentator said that Kenya could be isolated in the region in regards to the African court.

“The issue of being African is secondary. The question is whether these countries have internal mechanisms to address international crimes. You can expand the mandate yes, but the problem is that many African countries have blocked their nationals from accessing the court. So long as there is no reform to ensure access by the ordinary people, it will remain a political court,” he said.

Mr Opiyo argues that a continental court must have a mechanism for enforcement. He said Ugandan President Yoweri Museveni is playing to the gallery by encouraging Kenya to defy the ICC, but that Uganda is fully co-operating with the ICC after rebel leader Dominic Ongwen was delivered to The Hague.

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President Museveni did not keep his promise to sponsor a motion at the AU summit for mass withdrawal of the African states from the Rome Statute, Mr Opiyo said.

He said Uganda, having signed a defence pact with the US during last year’s US-Africa summit, would not want to upset this agreement. In addition, it is the only country on the continent hosting the ICC field office that deals with Kenya, the Democratic Republic Congo and the Central African Republic.

“Kenya’s efforts to push for signatures at the summit was the wrong approach because signing of treaties is a complex issue which, at the very minimum, requires the preparation of a legal opinion or brief,” said Mr Opiyo.

South Africa, Ghana, Senegal, Botswana, and Ivory Coast have emerged as strong proponents of the ICC. So far, only 26 out of the 54 AU partner states have ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights since it was established in 1998.

Kenya, which has been lobbying for at least 15 countries to sign the Protocol, is encouraged that all the five EAC partner states have ratified the charter that established the court.  

In addition to ratification of the Protocol, only seven of the 26 state parties to the Protocol so far have made declarations recognising the competence of the court to receive cases from non-governmental organisations and individuals. The seven states are Burkina Faso, Ivory Coast, Ghana, Malawi, Mali, Rwanda and Tanzania.

The African Court of Human and People’s Rights officially started its operations in November 2006. By March 2014, the court had received 28 applications, disposed of 23 cases and currently has five pending.

Donald Deya, the chief executive of the Pan African lawyer Union said many African states will not pull out of the ICC because some believe that it is a deterrent to impunity; others are using the international court so solve their own internal politics like Uganda. Others, like Sudan, support the Kenyan agenda of disassociating from the ICC.

The other challenge is the manner in which the judges will be appointed. Article 4 of the Protocol says that judges will be appointed once the new jurisdiction comes into force. There has been a concern over impartiality because the judges will be appointed by the heads of state.