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Following a proposal by the Chairperson of the Assembly of the AU and head of the Federal Republic of Nigeria, President Olusegun Obasanjo, the AU decided to integrate the African Human Rights Court and the Court of Justice of the African Union. Underlying this decision was the concern at the growing number of AU institutions, which it could not afford to support. The AU Commission was requested to work out the modalities on the implementation of the decision to integrate the courts.

A panel of legal experts met in Addis Ababa, Ethiopia from 13-14 January 2005 to consider the decision and make recommendations. This panel drafted a protocol entitled, “Draft Protocol on the Integration of the African Court on Human and Peoples’ Rights and the Court of Justice of the AU.” This was presented to the Executive Council of the AU at the summit in Abuja, Nigeria, January 2005. The AU Commission recommended that the integrity of the jurisdiction of the two courts should be retained while at the same time making it possible to administer the protocols through the same court by way of special chambers, and the necessary amendments to both protocols be effected through the adoption of a new protocol by the AU Assembly of Heads of States and Governments.

At the January 2005 AU Summit, the Executive Council decided to refer the report of the Permanent Representatives Committee (these are ambassadors to the AU in Addis Ababa, Ethiopia) and the AU Commission’s reports to a meeting of legal experts from governments for their recommendations, which would be presented at the next ordinary session of the AU in July 2005. Further and importantly, the Executive Council decided that the operationalisation of the African Court should continue without prejudice.

A meeting of government legal experts took place in Addis Ababa, Ethiopia from 29th March to 1st April 2005 to consider these documents. Acknowledging the complexities involved in creating an integrated judicial system, the meeting recommended that -

  1. the operationalisation of the African Court should continue,
  2. the ratification of the protocol establishing the Court of Justice of the AU should continue until it comes into force, and
  3. that only then should the process to integrate the two courts resume. The body of government experts further recommended that the AU should determine the seat of and elect judges to the African Court.

At the July AU Summit in Sirte, Libya, the Assembly of Heads of State and Government decided that the African Human Rights Court should be set up and the processes towards putting it in operation should begin. The Assembly further decided that the African Human Rights Court, and the merged court, will be headquartered in the East African region.  Only states that have ratified the protocol establishing the African Human Rights Court can qualify to offer to host the Court.

From 21st to 25th November 2005, a working group on the draft single legal instrument relating to the merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union met to examine the draft document.

 
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