HURISA - A Guide to the African Court

A GUIDE TO THE AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS

THE CREATION OF THE COURT

The Assembly of Heads of State and Government of the Organisation of African Unity (now the African Union) adopted the Protocol to the African Charter on Human and Peoples' Rights (the Protocol) in Ouagadougou, Burkina Faso, on 10 June 1998. The Comoros deposited the required 15th instrument of ratification on 25 December 2003 resulting in the Protocol coming into effect on 25 January 2004. The African Union July 2004 Summit decided to integrate the African Court on Human and Peoples’ Rights and the Court of Justice of the Africa Union. A group of legal experts wrote a new legal instrument merging the protocols creating the two courts. As of February 2006, the following states had ratified the Protocol: Algeria, Burkina Faso, Burundi, Cote d'Ivoire, the Comoros, Gabon, the Gambia, Ghana, Kenya, Libya, Lesotho, Mali, Mozambique, Mauritania, Mauritius, Nigeria, Niger, Rwanda, South Africa, Senegal, Tanzania, Togo and Uganda.

THE PURPOSE FOR THE COURT

The primary objective for the creation of a human rights court is to complement and reinforce the protective mandate of the African Commission on Human and Peoples' Rights and to interpret the African Charter on Human and Peoples' Rights (African Charter).

THE COMPOSITION OF THE COURT

The Court shall be independent and impartial. No judge may hear a case in which he/she has been a party as a counsel or adviser involved in any capacity on the case. The African Union guidelines on nominations and elections of judges state that the court should have the following number of judges for each region of Africa: Eastern (2), Northern (2), Central (2), Western (3) and Southern Region (2). No two judges can be from the same country. The judges that compose the Court should have experience in one of the following legal traditions: civil, common, Islamic, and African customary law. Judges must also have experience in human and peoples' rights. The Assembly of Heads of State and Government must ensure that there is a balance of men and women on the Court.

The Court consists of 11 judges. At least seven judges shall consider a case. The Court elects the president and vice-president. The Court shall appoint a registrar and other staff. See Judges of the African Court.

WHO CAN BE A JUDGE

Nationals of member states of the African Union Jurists of high moral character, recognised practical, judicial and academic experience in the field of human and peoples' rights. A judge cannot be someone who is closely linked to a government such as a legal advisor, a director in a ministry or a diplomatic representative.

HOW CAN ONE BECOME A JUDGE

Only a state that has ratified the Protocol can nominate a candidate to be a judge to the Court. A state that has ratified the Protocol can nominate up to three candidates. At least one of those should be a woman. The nominations must be submitted to the African Union Commission (the office of the Legal Counsel) two months before the next African Union Summit. There are two African Union Summits each year – January and July. The African Union Commission shall send a list of all candidates to member states of the African Union at least 30 days before the next ordinary session of the Assembly of Heads of State and Government. The Assembly of Heads of State and Government will elect candidates by secret ballot.

WHO CAN TAKE A CASE BEFORE THE COURT

The following parties can take cases before the Court:

The African Commission on Human and Peoples’ Rights;
States that were complainants or respondents to a complaint before the African Commission on Human and Peoples’ Rights;
States that have an interest in a case;
African inter-governmental organisations; and
Non-governmental organisations with observer status at the African Commission on Human and Peoples' Rights and individuals in cases against states parties that have made a declaration allowing them direct access to the Court.

By January 2006 only one state party, Burkina Faso, had made the declaration allowing for direct access. Parties must have exhausted all local remedies before taking cases to the Court.

WHAT CAN THE COURT DO

The Court can consider disputes brought before it. The Court can also give advisory opinions on a legal matter upon request by the following:

A member state of the African Union;
The organs of the African Union. These include the Assembly of African Union, the Peace and Security Council, the Pan-African Parliament, the African Union Commission, the Permanent Representatives Committee (this is made up of the ambassadors to the AU headquarters in Addis Ababa, Ethiopia); the Specialised Technical Committee of the African Union, the Economic, Social and Cultural Council (the civil society body); and the financial institutions;
Any African organisation recognised by the African Union. These include the Regional Economic Communities such as the Southern Africa Development Community and organisations that have observer status at the African Union.

SOURCES OF LAW

The Court shall interpret the provisions of the African Charter; the African Charter on the Rights and Welfare of the Child; the Protocol to the African Charter on the Rights of Women and any other relevant human rights instruments ratified by African states.

CONSIDERING CASES

Hearings of cases take place in public. The rules of procedure shall determine those instances where cases shall be held in private. Legal representatives may represent parties before the Court. In the interests of justice, the Court may provide free legal representation.

DECISIONS

The Court may do the following:

Reach an amicable settlement;
Find that there is a violation of human or peoples' rights;
Order that the violator make a payment of fair compensation or reparation; and
Decide on a provisional measure in order to avoid irreparable harm to the person in urgent matters.

The Court shall deliver decisions within ninety days from the end of deliberations. The Court shall inform parties to the case as to when the decision shall be delivered. The decision of the Court shall be final with no opportunity of appeal. The states parties are responsible for complying with the decision.

TENURE OF JUDGES

The judges will serve a six-year term. They can serve a maximum of two consecutive terms. The president of the Court is elected for a two-year term. The president can be appointed for one further term in this capacity. In the first six years of the Court, four judges shall serve a two-year term and four other judges shall serve a four-year term. The president of the Court serves on a full-time basis. The other judges serve on a part-time basis.

VACANCIES AND SUSPENSION OF JUDGES

A seat may be vacant either by resignation or death. Judges can unanimously decide to suspend a fellow judge. This will occur where the judge is no longer fulfilling the required conditions to be a judge. The Assembly of the African Union may set aside the suspension. The Assembly of the African Union shall elect a candidate to occupy the vacancy for the remainder of the term. The seat shall not be filled if the remaining period of the term is less than 180 days.

RULES OF PROCEDURE

The elected judges will draft the Rules of Procedure. Included in the Rules are the following: the relationship between the Court and the African Commission on Human and Peoples’ Rights, filing cases, and proceedings of the Court.

ENFORCEMENT

The Court will transmit its decisions to the African Union. The Council of Ministers of the African Union shall monitor a states’ compliance with a decision.

ACCOUNTABILITY

The Court shall submit an annual report to the Assembly of the African Union.

BUDGET

The African Union, in consultation with the Court, shall determine the Courts’ expenses, the judges’ allowances and emoluments, and the budget of registry.

THE SEAT OF THE COURT

Only states that have ratified the protocol can host the Court. The Assembly of the African Union decided that the Court shall be located in Arusha, Tanzania.

Published by HURISA on behalf of the Coalition for an Effective African Human Rights Court

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