The Future of the ACtHPR

A guest post by Marie O’Leary

In July 2004, just months after the Protocol for the African Court on Human and Peoples’ Rights (ACtHPR) entered into force, the African Union initiated procedures to merge this court with its newly adopted African Court of Justice (ACJ). However, the Protocol and Statute of the combined court – adopted as the African Court of Justice and Human Rights (ACJHR) – cannot enter into force until 30 days after the deposit of the instrument of ratification by 15 Member States. To date only 3 of the 53 Member States have ratified the ‘merged court’ ACJHR Protocol. Meanwhile, the separate courts of the ACtHPR and the ACJ continue to develop slowly as individual entities.

Background

The ACtHPR had only just entered into force in January 2004 when the AU Assembly of States Parties decided that the court should be combined with the recently created ACJ for greater economic efficiency and jurisdictional singularity. In July 2004, the Assembly of the African Union decided to merge the two courts it had created, and in 2005 tasked the Algerian Minister of Foreign Affairs and former President of the International Court of Justice Mohamed Bedjaoui with drafting the merged court Statute. At the AU Summit in July 2008, the merged court Protocol and Statute were adopted.

The Merged Court

As indicated in the preamble to the ACJHR Protocol, the merged court is to become the overarching judicial institution of the AU, replacing the 1998 (ACtHPR) and 2004 (ACJ) Protocols.

The transition to a merged court was envisioned by the Assembly as being a seamless exercise by virtue of the transitional measures outlined in Chapter II of the ACJHR Protocol. This has not however been the case, as the merged court Protocol has yet to enter into force, awaiting ratification by 15 Member States. The merged court will eventually be seated in the home of the present ACtHPR in Arusha, Tanzania, and will receive any pending cases from the ACtHPR. The Judges and Registry of the ACtHPR will remain in place until new personnel can be appointed and the ACtHPR will continue to function for at least one year, or as long as necessary, following the practical creation of the ACJHR in order to ensure the handling of all outstanding and transitional matters.

The merged court will have broad jurisdiction over cases relating to all acts, decisions, regulations and directives of the organs of the Union, the AU Constitutive Act, the African Charter, all treaties and legal instruments adopted by the AU or OAU, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and any other legal instrument relating to human rights. The court will also have jurisdiction over “any question of international law”.

Article 29 of the ACJHR’s Statute generally limits access to the court to State Parties to the Protocol, organs of the AU (as authorized by the Assembly) and staff members of the AU (within parameters of the AU Staff Rules and Regulations). However, Article 30 permits broader access to the court in those cases concerning alleged human rights abuses, including direct access by individuals under Article 30(f) but only in respect of those States which have lodged a separate declaration permitting such access (Article 8 (3) of the ACJHR Protocol).

The ACJHR is designed to have two specific divisions – ‘General Affairs’ and ‘Human Rights’. Articles 16-18 of the ACJHR Statute set out how the separate divisions will operate.

Some academics have expressed concern that the human rights division may be overshadowed by the ‘General Affairs’ division. Others consider that this separation of divisions – with separate judges – will allow for specialization and, at the same time, the reaping of benefits of lower overheads, i.e. shared premises with shared courtrooms and resources.

Ratification Process

The true advantages and disadvantages of a merged court system remain to be seen as the ACJHR awaits enactment by ratification. To date, the ACJHR Protocol has only received the signature of 22 Member States, while only three (3) have ratified and deposited: Libya (deposited 17 July 2009), Mali (deposited 27 August 2009) and Burkina Faso (deposited 4 August 2010) (for all signatories and ratifications, see here). Both the ACtHPR and ACJ required similar ratification (the ACtHPR Protocol was adopted in 1998, but the court did not open for business until 2006; the ACJ Protocol was adopted in 2003 but did not enter into force until 2009). The ratification process of the merged court looks set to be a longwinded process.

Access of Individuals

Article 30(f), in conjunction with Article 8(3) of the ACJHR creates a barrier to individual and NGO direct access, similar to that before the ACtHPR, whereby a Member State must lodge a separate declaration permitting such access before the court. To date, only 5 Member States before the ACtHPR have deposited such declarations.

Conclusion

At this stage, the merged court Protocol awaits the ratification of 12 more Member States in order to launch the institution of the ACJHR, which may take many years. In the meantime, it is essential that immediate efforts are made to increase awareness and build the capacity of existing human rights institutions in Africa, especially the African Court on Human and Peoples’ Rights, the pre-cursor to the permanent court, which cannot be allowed to fail.