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African Court of Justice
As per Articles 5(1) and 18 of the Constitutive Act, the Court of Justice of the African Union was established as a principal judicial organ of the Union. However, thereafter, the Assembly of the Union passed a decision urging the merger of the Court of Justice with the African Court on Human and Peoples’ Rights. The many area of focus of material is not on the African Court on Human and Peoples’ Rights. Nevertheless, the merger of the two judicial organs would have to be addressed here as the destiny of the Court of Justice is going to be shaped accordingly. For a proper and logical understanding of the issue under consideration, we first have to a look at the primarily intended structure of the Court of Justice of the African Union. Then we explain the decision to merge the two judicial bodies along with the rationale behind such endorsement. Finally, we look at the proposed modus operandi of the merged court.
Salient Features of the Court of Justice
The Court of Justice was, as stated above, set up as the principal judicial organ of the African Union. Thus, it could be said that it was meant to be a body that could offer judicial assistance for the functioning of the Union as part of international institutional law. It was with this objective in view that the protocol to the Court of Justice of the African Union was framed.
Article 18 of the said protocol listed entities that deemed to be eligible to submit cases to the Court. The entities enumerated were States parties to the protocol, the Assembly of the African Union, the Parliament and other organs of the Union authorized by the Assembly, the African Union Commission or a member of staff of the Commission in a dispute between them within the limits and under the conditions laid down in the Staff Rules and Regulations of the Union, and in accordance with conditions to be determined by the Assembly and provided that state party concerned is consented to the application made by the third party.
As a judicial organ of the African Union, the Court of Justice was meant to have jurisdiction over the following matters as stipulated in Article 19 of the protocol relating thereto. The jurisdictions of the Court shall include the interpretation, application or validity of Union treaties and all subsidiary legal instruments adopted within the framework of the Union, any question of international law, all acts, decisions, regulations and directives of the organs of the Union, all matters specifically provided for in any other agreements that states parties may conclude among themselves or with the Union and which confer jurisdiction on the Court, the existence of any fact which, if established, would constitute a breach of an international obligation owed to a state party to the Union and finally the nature or extent of the reparation to be made for the breach of an obligation.
The Decision to Merge the African Court on Human and Peoples’ Rights and the Court of Justice
The African Court on Human and Peoples’ Rights predates the Court of Justice in its establishment. But it is usually alleged that even from the outset of the drafting of the protocol establishing the African Court on Human and Peoples’ Rights, there was some debate about the possibility of amalgamating it with the Court of Justice into a single institution. In the second ordinary session of the African Union, which was held in Maputo, Mozambique, in July, 2003, the African Union decided to merge the two through the adoption of an instrument fusing both courts i.e. the draft merger instrument. At the request of the African Union, Algeria’s Foreign Minister and former president of the World Court in Hague, Mohammed Bedjaoui, prepared a draft merger Treaty in November 2005.
The following are among the reasons put forward to justify the merger of the two courts. The official explanation for such a merger was that it would be financially expedient to do so. Instead of having two courts with different budgets; it was opted for a single court. Another argument for an amalgamated court was the apparent competence of both courts to adjudicate human rights mattes. This led to the creation of a new merged court named the African Court of Justice and Human Rights.
The preamble of the Statute of the African Court of Justice of Human Rights provides the following as one among the statement of reasons mentioned in it. It was stated that “[we are] firmly convinced that the establishment of the African Court of Justice and Human Rights shall assist in the achievement of the goals pursued by the African Union and that the attainment of the objectives of the African Charter on Human and Peoples’ Rights requires the establishment of a judicial organ to supplement and strengthen the mission of the African Commission on Human Peoples’ Rights as well as the African Committee of Experts on the Rights and Welfare of the Child.
The Proposed Mode of Operation of the Merged Court
The modus operandi of the merged court might be highlighted by focusing on four principal centers of attention:
Sections of the Court
The Court shall have two sections. The first section is the General Affairs Section, which has eight judges and is competent to hear all cases which were the jurisdiction of the former Court of Justice for Human and Peoples’ Rights issues, which shall be handled by the second section of the court named as the Human Rights Section.
Though the Court has two sections with their own mandate, any section may refer a case to be considered by the full court whenever it is convinced that it is necessary to do so. It may be said that this kind of proposal is likely to occur in some grey areas, which are not easy to determine whether they are human rights issues, or not and in cases where in the mandates of the General Affairs Section might commingle with human rights issues.
A quorum of nine and five judges shall respectively be required for deliberations of the full court and for deliberations of each section.
Jurisdiction of the Court
The court shall have jurisdiction over the previous jurisdictions of the two Courts before their merger. The jurisdiction of the former Court of Justice is already stated in 3.5.1 of this material. As regards to, the African Court of Human and Peoples’ Rights, the protocol for its establishment extends its jurisdiction to all cases and disputes concerning the interpretation and application of the Charter (ACHPR) and any other relevant human right instrument ratified by the states concerned. It was also meant to have an advisory jurisdiction to any recognized African organization. In the same fashion, the merged court may as well have advisory jurisdiction on any legal question to organs of the Union.
Entities Eligible to Submit Cases to the Court
Under the proposed merged court, locus stand has been broadened to include individuals and relevant human rights organizations accredited to the African Union or any of its organs. Accordingly, the old requirement of an additional declaration to allow individual and NGO petitions has been dispensed with, and the majority of the victims can approach the Court directly. This modification was cited in Chapter two, of this material, as a feature that shows African Union’s trend to adopt some supranational characters as an international organization.