Pardons before the African Criminal Court: Shield for Impunity or Path to Justice?

Abstract

Pardons and commutations in international criminal law remain contested because they sit at the intersection of accountability, victims’ rights, reconciliation and political power. The article explores the implications of national pardons on international crimes, particularly through the lens of Article 46K of the 2014 Malabo Protocol, which aims to establish jurisdiction for the African Criminal Court (ACC). Since the Protocol has not yet entered into force, the article uses a predictive analysis to assess how Article 46K is likely to operate if the ACC becomes operational and begins enforcing sentences through state cooperation. The analysis indicates that Article 46K does not automatically recognise domestic pardons but necessitates a controlled post-conviction clemency process. Through a doctrinal approach, the study evaluates the potential impacts of such pardons on victims’ rights and the ACC’s credibility. Drawing on comparative international and regional jurisprudence and practice, the paper identifies the conditions under which post-conviction mitigation may be compatible with international criminal justice, and the safeguards required to prevent clemency from functioning as a vehicle for impunity. It ultimately posits that, unless operationalised through transparent criteria, victim-facing procedures and consistency with international obligations to investigate and punish serious crimes, reliance on domestic eligibility standards risks weakening the ACC’s credibility and deterrent function.