New African Court Emerges at the 11th AU Summit
14-07-2008
The processes for establishing a new regional court for Africa, the African Court of Justice and Human Rights was completed at the just concluded 11th AU Summit, held in Sharm El-Sheikh, Egypt when the Assembly of Heads of States and Government in their 11th Ordinary session adopted the ‘Protocol on the Statute of the African Court of Justice and Human Rights’. The new Court shall be the main judicial organ of the African Union (AU).
During the summit the Executive Council of the AU at its 13th Ordinary session considered the Draft Single legal instrument on the merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union as finalized by the meeting of Ministers of Justice/Attorneys General held in Addis Ababa, Ethiopia, 14-18 April 2008. The Executive Council approved the recommendations of the Ministers of Justice/Attorneys General without amendments. This document was then presented to the Assembly of Heads of States and Government.
The new Protocol replaces the two protocols establishing the African Court of Human and Peoples’ Rights on the one hand, and of the Court of Justice of the AU on the other hand. The new Protocol and the Statute annexed to it shall, enter into force thirty (30) days after the deposit of the instruments of ratification by fifteen (15) Member States of the AU. Although, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rightsshall “remain in force for a transitional period not exceeding one (1) year or any other period determined by the Assembly, after entry into force of the present Protocol, to enable the African Court on Human and Peoples’ Rights to take the necessary measures for the transfer of its prerogatives, assets, rights and obligations to the African Court of Justice and Human Rights.”
The Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights (African Court Protocol) was adopted by members of the Organization of African Unity (replaced as the African Union) at a meeting in Ouagadougou, Burkina Faso, on 9 June 1998. This Protocol entered into force on 25 January 2004. To date there are Twenty-four (24) ratifications to the Protocol. The African Court on Human and Peoples’ Right was meant to complement and reinforce the functions of the African Commission on Human and Peoples` Rights.
The Protocol of the Court of Justice of the African Union was adopted by the 2nd Ordinary session of the Assembly of Heads of States and Government, African Union (AU), in Maputo, Mozambique on 11 July 2003. This Court was created to be the principal judicial organ of the Union. AU records show that by January 2008, Fifteen (15) countries had ratified this Protocol.
At the 2004 AU Summit, the Assembly of Heads of State and Government decided to merge the African Court on Human and Peoples’ Rights established in 1998 and the Court of Justice of the AU to create an African Court of Justice and Human and Peoples’ Rights. One of the reasons for the merger was to consolidate limited resources for the management of one single court.
Key changes that affect the African Court Protocol include an increase in the number of Judges from eleven (11) to sixteen (16) with each geographical region, where possible, represented by three (3) Judges with the exception of the Western region, which would be represented by four (4) Judges. Election of Judges to the new Court will be from two lists, A and B, with eight (8) Judges eligible for election in each list. By virtue of its new status, the new Court will have two (2) sections: a General Affairs Section and a Human Rights Section composed of eight (8) Judges each.
Despite submissions by the Coalition for an Effective African Court and interested human rights bodies about the need for direct access for individuals and NGOs for the new Court, the provision to grant access was absent from the final text presented to the AU Assembly for adoption. Member States will have to make a declaration permitting individuals and NGOS direct access, before the new Court can receive petitions from them.
In a letter to member states of the AU, on the creation of the African Court of Justice and Human Rights, the Coalition restated strongly that the non-grant of direct access to individuals “is a step back in access to justice for all in Africa. It dilutes the effectiveness of the continental judicial system and runs contrary to the provisions on access to justice in several international human rights instruments, including the African Charter on Human and Peoples’ Rights, and the International Covenant on Civil and Political Rights to which most Member States are a party.” Besides all the courts of the RECs (Regional Economic Communities), e.g. Court of Justice of the Economic Community of West African States (ECOWAS), the East African Court of Justice (EACJ); the Southern African Development Community (SADC) Tribunal, the Court of Justice of the Common Market of the East and Southern Africa (COMESA), and the Court of Justice of the Economic and Monetary Union of West Africa (UEMOA), grant direct access to individuals.
However, other bodies that can bring cases before the new Court include African National Human Rights Institutions (NHRI), African Intergovernmental Organizations accredited to the Union or its organs, the African Committee of Experts on the Rights and Welfare of the Child, the African Commission on Human and Peoples’ Rights and State parties to the new Protocol.
Election of Judges to the African Court
The Election of Judges to the African Court of Human and Peoples’ Rights also took place at the same summit. Four of the first 11 judges whose 2-year terms expired in July 2008 were eligible for re-election. However, only 3 were nominated by their countries; Hon. Lady Justice Sophia A.B. AKUFFO of Ghana, Hon. Justice Bernard Makgabo NGOEPE of South Africa and Hon. Justice Jean Emile SOMDA of Burkina Faso. Uganda nominated Justice Joseph Nyamihana MULENGA in place of Hon. Justice Kanyiehamba. Other nominees were Mr. Jose Ibraimo ABUDO of Mozambique, Mr. Sylvain ORE of Cote d’Ivoire and Mr. Githu MUIGAI of Kenya.
The nominees that were elected for a term of 6 years are:
1. Sophia A.B. AKUFFO of Ghana (re-elected)
2. Githu MUIGAI of Kenya
3. Joseph Nyamihana MULENGA of Uganda
4. Bernard Makgabo NGOEPE of South Africa (re-elected)
It was observed that no women were nominated and this has not improved the gender balance of the Judges as there are only still two women as members of the African Court.
The first eleven (11) Judges of the African Court on Human and Peoples’ Rights were elected by the 8th Ordinary Session of the Executive Council and appointed by the 6th Ordinary Session of the Assembly held in Khartoum, The Sudan in January 2006. See the section ‘The African Court Judges’.
For legal documents relating to the African Court and the new Protocol please visit the ‘Historical Documents’ Section of the website.
Further information can be found at the following links:
The African Union
The African Commission on Human and Peoples’ Rights