Protocol on the Establishment of an African Court of Human Rights

PROTOCOL ON THE STATUTE OF THE AFRICAN

COURT OF JUSTICE AND HUMAN RIGHTS

The Member States of the African Union, Parties to this Protocol,

RECALLING the objectives and principles enunciated in the Constitutive Act of the African Union, adopted on 11 July 2000 in Lome, Togo, in particular the commitment to settle their disputes through peaceful means;

BEARING IN MIND their commitment to promote peace, security and stability on the Continent and to protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant instruments relating to human rights;

CONSIDERING that the Constitutive Act of the African Union provides for the establishment of a Court of Justice charged with hearing, among other things, all cases relating to interpretation or application of the said Act or of all other Treaties adopted within the framework of the Union;

FURTHER CONSIDERING Decisions Assembly/AU/Dec.45 (III) and Assembly/AU/Dec.83 (V) of the Assembly of the Union, adopted respectively at its Third (6-8 July 2004, Addis Ababa, Ethiopia) and Fifth (4-5 July 2005, Sirte, Libya), Ordinary Sessions, to merge the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union into a single Court,

FIRMLY CONVINCED that the establishment of an 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 and Peoples’ Rights as well as the African Committee of Experts on the Rights and Welfare of the Child;

TAKING DUE ACCOUNT of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment an African Court on Human and Peoples’ Rights, adopted by the Assembly of Heads of States and Governments of the Organization of African Unity on 10 June 1998 at Ouagadougou, Burkina Faso, and which entered into force on 25 January 2004;

TAKING DUE ACCOUNT ALSO of the Protocol of the Court of Justice of the African Union, adopted by the Assembly of the Union on 11 July 2003 in Maputo Mozambique;

RECALLING their commitment to take all necessary measures to strengthen their common institutions and to endow them with the necessary powers and resources to carry out their missions effectively;

COGNIZANT of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and the commitments contained in the Solemn Declaration on the gender equality in Africa (Assembly/AU/Decl.12 (III) adopted by the Assembly of the Union respectively at its Second and Third ordinary sessions held in July 2003 and 2004, in Maputo, Mozambique and in Addis Ababa, Ethiopia);

Convinced that that the present Protocol shall supplement the mandate and efforts of other continental treaty bodies as well as national institutions in protecting human rights:

HAVE AGREED AS FOLLOWS:

CHAPTER I

MERGER OF THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS AND THE COURT OF JUSTICE OF THE AFRICAN UNION

Article 1

Replacement of the 1998 and 2003 Protocols

The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, adopted on 10 June 1998 in Ouagadougou, Burkina Faso and which entered into force on 25 January 2004, and the Protocol of the Court of Justice of the African Union, adopted on 11 July 2003 in Maputo, Mozambique, are hereby replaced by the present Protocol and Statute annexed as its integral part hereto, subject to the provisions of Article 5, 7 and 9 of this Protocol.

Article 2 Establishment of a single Court

The African Court on Human and Peoples’ Rights established by the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights and the Court of Justice of the African Union established by the Constitutive Act of the African Union, are hereby merged into a single Court and established as “The African Court of Justice and Human Rights”.

Article 3

Reference to the single Court in the Constitutive Act

References made to the “Court of Justice” in the Constitutive Act of the African Union shall be read as references to the “African Court of Justice and Human Rights” established under Article 2 of this Protocol.

CHAPTER II TRANSITIONAL PROVISIONS

Article 4

Term of Office of the Judges of the African Court on Human

and Peoples’ Rights

The term of office of the Judges of the African Court on Human and Peoples’ Rights shall end following the election of the Judges of the African Court of Justice and Human Rights. However, the Judges shall remain in office until the newly elected Judges of the African Court of Justice and Human Rights are sworn in.

Article 5

Cases Pending before the African Court on Human and Peoples’ Rights

Cases pending before the African Court on Human and Peoples’ Rights, that have not been concluded before the entry into force of the present Protocol, shall be transferred to the Human Rights Section of the African Court of Justice and Human Rights on the understanding that such cases shall be dealt with In accordance with the protocol to the ACHPR on the establishment of the African Court on Human and Peoples’ Rights.

Article 6 Registry of the Court

The Registrar of the African Court on Human and Peoples’ Rights shall remain in office until the appointment of a new Registrar for the African Court of Justice and Human Rights.

Article 7

Provisional validity of the 1998 Protocol

The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights shall 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.

CHAPTER III FINAL PROVISIONS

Article 8

Signature, Ratification and Accession

1.         The present Protocol shall be open for signature, ratification or accession by Member States, in accordance with their respective constitutional procedures.

2.               The instruments of ratification or accession to the present Protocol shall be deposited with the Chairperson of the Commission of the African Union.

3.               Any Member State may, a
t the time of signature or when depositing its instrument of ratification or accession, or at any time thereafter, make a declaration accepting the competence of the Court to receive cases under Article 30 (f) involving a State which has not made such a declaration.

Article 9 Entry into force

1.         The present 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.

2.         For each Member State which shall ratify or accede to it subsequently, the present Protocol shall enter into force on the date on which the instruments of ratification or accession are deposited,

3.         The Chairperson of the Commission shall inform all Member States of the entry into force of the present Protocol.

ADOPTED BY THE ELEVENTH ORDINARY SESSION OF THE ASSEMBLY, HELD IN SHARM EL-SHEIKH, EGYPT, 1^st JULY 2008

*************

ANNEX

STATUTE OF THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS

CHAPTER I GENERAL PROVISIONS

Article 1 Definitions

In this Statute, except otherwise indicated, the following shall mean:

“African Charter” means the African Charter on Human and Peoples’ Rights;

“African Commission” means the African Commission on Human and Peoples’ Rights;

“African Committee of Experts” means the African Committee of Experts on the Rights and Welfare of the Child;

“African Intergovernmental Organisations” means an organisation that has been established with the aim of ensuring socio-economic integration, and to which some Member States have ceded certain competences to act on their behalf, as well as other sub-regional, regional or inter-African Organisations;

“African Non-Governmental Organizations” means Non-Governmental Organizations at the sub-regional, regional or inter-African levels as well as those in the Diaspora as may be defined by the Executive Council;

“Agent” means a person mandated in writing to represent a party in a case before the Court;

“Assembly” means the Assembly of Heads of State and Government of the Union;

“Chamber(s)” means a Chamber established in accordance with Article 19 of the Statute.

“Constitutive Act” means the Constitutive Act of the African Union; “Commission”: means the Commission of the Union;

“Court” means the African Court of Justice and Human Rights as well as its sections and chambers;

“Executive Council” means the Executive Council of Ministers of the Union;

“Full Court” means joint sitting of the General Affairs and Human Rights Sections of the Court;

“Human Rights Section” means the Human and Peoples’ Rights Section of the Court;

“Judge” means a judge of the Court;

“Member State” means a Member State of the Union;

“National Human Rights Institutions” means public institutions established by a state to promote and protect human rights;

“President” means the President of the Court elected in accordance with Article 22(1) of the Statute;

“Protocol” means the Protocol to the Statute of the African Court of Justice and Human Rights;

“Registrar” means the person appointed as such in accordance with Article 22 (4) of the Statute;

“Rules” means the Rules of the Court;

“Section” means the General Affairs or the Human Rights Section of the Court;

“Senior Judge” means the person defined as such in the Rules of Court;

“States Parties” means Member States, which have ratified or acceded to this Protocol;

“Statute” means the present Statute;

“Union” means the African Union established by the Constitutive Act;

“Vice President” means the Vice President of the Court elected in accordance with Article 22 (1) of the Statute.

Article 2 Functions of the Court

1.           The African Court of Justice and Human Rights shall be the main judicial organ of the African Union.

2.           The Court shall be constituted and function in accordance with the provisions of the present Statute.

CHAPTER II ORGANIZATION OF THE COURT

Article 3 Composition

1.         The Court shall consist of sixteen (16) Judges who are nationals of States Parties. Upon recommendation of the Court, the Assembly, may, review the number of Judges.

2.         The Court shall not, at any one time, have more than one judge from a single Member State.

3.         Each geographical region of the Continent, as determined by the Decisions of the Assembly shall, where possible, be represented by three (3) Judges except the Western Region which shall have four (4) Judges.

Article 4 Qualifications of Judges

The Court shall be composed of impartial and independent Judges elected from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are juris-consults of recognized competence and experience in international law and /or, human rights law.

Article 5 Presentation of Candidates

1.         As soon as the Protocol to this Statute enters into force, the Chairperson of the Commission shall invite each State Party to submit, in writing, within a period of ninety (90) days, candidatures to the post of judge of the Court.

2.         Each State Party may present up to two (2) candidates and shall take into account equitable gender representation in the nomination process.

Article 6 List of candidates

1. For the purpose of election, the Chairperson of the Commission shall establish two alphabetical lists of candidates presented as follows:

i) List A containing the names of candidates having recognized competence and experience in International law; and

ii) List B containing the names of candidates possessing recognized competence and experience in Human Rights law.

2.         States Parties that nominate candidates possessing the competences required on the two lists shall choose the list on which their candidates may be placed.

3.         At the first election, eight (8) Judges shall be elected from amongst the candidates of list A and eight (8) from among the candidates of list B. The elections shall be organized in a way as to maintain the same proportion of judges elected on the two lists.

4.