The planned merger of the human rights court and the yet to be established court of justice into an African Court of Justice and Human Rights is the focus of this paper. More specifically the potential challenges of establishing such a court are explored in some detail.

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The African Court of Justice and Human Rights: Pitfalls in the Protocol on the ACJHR
Ghetnet Metiku Woldegiorgis
August 2004
Addis Ababa
Contents
Acronyms ...................................................................................................................................................... 3
1 Introduction ........................................................................................................................................... 4
2 The African Court of Justice and Human Rights .................................................................................. 4
3 Arguments against the ACJHR ............................................................................................................. 5
3.1 The Extensive Jurisdiction of the Court ........................................................................................ 6
3.2 Resource Constraints .................................................................................................................... 7
3.3 Relationship with the ICC ............................................................................................................. 7
3.4 Access for Individuals and NGOs ................................................................................................. 8
3.5 Individual Responsibility .............................................................................................................. 8
4 Conclusions ........................................................................................................................................... 8
Bibliography ............................................................................................................................................... 10

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Acronyms
ACHPR
African Charter on Human and Peoples’ Rights
ACJ
African Court of Justice
ACJHR
African Court of Justice and Human Rights
ACRWC
African Charter on the Rights and Welfare of the Child
AEC
African Economic Community
AU
African Union
ICC
International Criminal Court
IDPs
Internally Displaced Persons
NGOs
Non-Government Organizations
NHRIs
National Human Rights Institutions
OAU
Organization of African Unity

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1 Introduction
The adoption of the Protocol to the African Charter on the Establishment of the African Court of Justice and Human Rights has raised a number of issues relating to its motivation, preferability and future effectiveness in achieving its goals. The discussion is also fueled by the apparent conjunction with the debate over the indictment of African leaders in the international arena for serious violations of human rights including genocide, crimes against humanity and war crimes. This brief paper is an attempt to highlight the arguments against the creation of the merged court in the African regional system. It starts with a brief description of the Court and its background. The arguments against the Court are presented in the next section. Finally, the conclusion section summarizes the key points.
2 The African Court of Justice and Human Rights
The decision to merge the ACHPR and the ACJ was initially made in 2004 at the Third Ordinary Session of the Assembly of the African Union and reiterated in its Fifth Ordinary Session in 2005. The adoption of the Statutes of the ACJHR came about three years later at the AU Summit in Sharm El-Sheikh, Egypt, on 1 July 2008. The protocol comes into force thirty days after deposit of ratifications by fifteen member states (article 9/1). Although the Protocol has been signed by thirty African states, only five have ratified the Protocol by February 2014.1 These are: Benin, Burkina Faso, Congo, Libya and Mali. Among these five, only Benin has yet to deposit the instrument of ratification.
The establishment of the ACJHR draws upon the preceding developments in the development of the regional human rights and judicial systems for the continent. The starting point for this odyssey is the coming into being of the Organization of African Unity (OAU) in 1963 by 32 African states. Although initially conceived as a pan-African institution for the liberation of the continent, the OAU viewed itself as a center for economic cooperation and human rights
1 Coalition for an Effective African Court on Human and Peoples’ Rights, Ratification Status: Protocol on the Statute of the African Court of justice and Human Rights, available at: www.africancourtcoalition.org (accessed 08,06/2014)

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protection in its latter years. One of the most important developments under the OAU is the adoption of the African Charter on Human and Peoples’ Rights (ACHPR)2 and the Protocol on the establishment of the African Court of Human and Peoples’ Rights3. The African Commission on Human and Peoples’ Rights, which was envisaged in the ACHPR, was established in 1987.
At this point, the OAU was replaced by the African Union (AU) and the development of the system continued under the new organization. The Assembly of Heads of State and Government of the OAU declared the establishment of the African Union (AU) during their extraordinary session held in Sirte, Libya in March 2001. The Constitutive Act (Act) of the Union entered into force on 26 May 2001 and the AU finally replaced the OAU in 2002. In July 2003, the AU Assembly of Heads of State and Government adopted the Protocol of the Court of Justice of the AU (ACJ Protocol). The African Court of Human and Peoples’ Rights, which was established by the ACHPR protocol, came into being in 2006. Finally, on 8 July 2004, the AU Assembly decided to merge the ACHPR with the ACJ. The AU at its Ministers of Justice and/or Attorneys General meeting from 14–15 May 2012 has adopted the report of Government Legal Experts on amendments to the African Court's protocol, and the meeting approved the draft protocol as amended and recommended it to the AU Assembly for adoption.
The ACJHR has been given an extensive mandate in its statutes. The court generally merges the jurisdictions of the ACJ and the ACHPR and takes on an additional criminal law jurisdiction. The statutes as adopted provide for two sections within the ACJHR dealing respectively with ‘general affairs’ and ‘human rights’. Each of these sections have a pre-trial, trial and appellate chambers.
3 Arguments against the ACJHR
As noted in the previous sections, the establishment of the ACJHR did not come out of the blue. Processes to this end have been formally initiated a decade ago and have been proceeding with some pace. While the protocol establishing the ACJHR is open for signature and ratification, this is a process that requires a number of years for completion. The express reasons for the
2 ACHPR (adopted 1981 and came into force 1986)
3 ACHPR Protocol on the African Human Rights Court (adopted 1998 and came into force 2004

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establishment of the ACJHR relate mainly to rationalizing the structure of the existing courts and cost effectiveness.4 Advantages of establishing a ‘merged’ court have also been indicated.5
However, a number of arguments have been raised questioning the wisdom of establishing the ACJHR, its mandate, organization and possible contributions. Arguments and criticisms against the ACHHR generally fall into two categories: the process of drafting the protocol; and, the content of the protocol.6 The first mainly relate to the apparent haste with which the draft protocol was developed and the lack of adequate consultation in the process. The process, which started in February 2010 with the appointment of consultants by the AU, produced a draft protocol by June of the same year. After a series of consultation workshops organized by the Pan-African Parliament and the AU Commission during late 2010 and 2011, it was adopted by mid-2012 by a meeting of Ministers of Justice and/or Attorney Generals. In effect, governments had only a year to consider the draft protocol and non-state actors barely had a chance to access the draft document – which has not been made available to the public. The parallel disputes between African states and the International Criminal Court’s (ICC) provides further fuel to the criticism of the process from this angle.7 The more substantive critics of the ACJHR relate to a number of issues, major among which are discussed below.
3.1 The Extensive Jurisdiction of the Court
The ACJHR has jurisdiction over three thematic areas: general affairs, human rights and international crimes.8 The first are issues previously entertained by the ACJ while the second encompasses the current mandate of the ACHPR. Issues relating to international crimes, i.e. the new jurisdiction, cover the usual reference to genocide, crimes against humanity and war crimes. The protocol does not stop here. It also mandates the Court to entertain a number of issues
4 Timothy Fwa Yerima, Comparative Evaluation of the Challenges of African Regional Human Rights Courts, Journal of Politics and Law, Vol. 4, No. 2, Canadian Center of Science and Education, September 2011, pp. 120-127, p. 121
5 Sonya Sceats, Africa’s New Human Rights Court: Whistling in the Wind? Chatham House Briefing Paper, International Law, March 2009, p. 5
6 Max Du Plessis, A case of negative regional complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes, Oxford Institute for Ethics, Law and Armed Conflict, August 27, 2012 (available at: www.ejiltalk.org)
7 Max Du Plessis, Implications of the AU decision to give the African Court jurisdiction over international crimes, Institute of Security Studies Paper, June 2012, p. 4
8 B. M Ngoepe, The Mandate of the Merged African Court of Justice and Human Rights and its Implications on Individual States, 7th Annual Africa Prosecutors Association Conference and Annual General Meeting Windhoek, Namibia 7-10 October 2012, pp. 3-4

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including: including: genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government; piracy; terrorism; mercenarism; corruption; money laundering; trafficking in persons; trafficking in drugs; trafficking in hazardous wastes; illicit exploitation of natural resources; the crime of aggression; and inchoate offences. This extensive mandate is likely to overstretch the court and its resources.
3.2 Resource Constraints
The issue of resources, financial and human, is another source of criticism for the ACJHR.9 In comparison with other regional systems and the ICC, the AU and the ACJHR have and are likely to have very limited resources. This put into question the possibility of the Court becoming effective at the operational level (article 3). The number of judges, which is set at sixteen, is also too limited to handle the expansive jurisdiction of the Court at three levels (pre-trial, trial and appellate).
3.3 Relationship with the ICC
The most widely publicized criticism of the ACJHR relates to its relationship with the ICC.10 The AU has called on its member states to adopt a policy of non-cooperation under the threat of sanctions after the indictment of President Omar al-Bashir in 2009 after the situation in Darfur was referred to the ICC Prosecutor by the United Nations Security Council.11 Given the backdrop of the tensions between the ICC and African states on the apparent disproportionate targeting of African leaders12, one would expect the protocol to give due emphasis to the possible relationships with the ICC. This is more so since at least 34 African states are already party to the Rome Statutes and have taken measures to implement its provisions. Eleven more have signed but have yet to ratify the Rome Statutes.13 Oddly, the protocol is silent on the issue.14
9 Timothy Fwa Yerima, p. 125
10 Sharon Esther Nakandha, Africa and the International Criminal Court: Mending Fences, Avocats Sans Frontières, Kampala, Uganda, July 2012
11 Assembly of the African Union, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245 (XIII), Sirte, July 3, 2009, para. 10
12 All pending cases at the ICC relate to Africa and Africans
13 Algeria, Angola, Cameroon, Egypt, Eritrea, Guinea-Bissau, Morocco, Mozambique, São Tome & Principe, Sudan, and Zimbabwe.
14 However, the Protocol – as amended – refers to complementarity with national courts and courts of regional economic communities

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3.4 Access for Individuals and NGOs
Another issue of concern is the issue of access to the ACJHR for individuals15 and NGOs. Taking the line adopted by the ACHPR, the ACJHR protocol mandates the Court to accept complaints from individuals and NGOs only where the concerned state has made a declaration accepting the mandate of the Court to do so (articles 30/f and 8/3). In addition, NGOs need to be accredited with the African Union to submit complaints to the Court. Thus, the AU has failed to draw lessons from the fact that the comparable provision of the ACHPR did not lead to widespread declarations to this effect among African states.16
3.5 Individual Responsibility
The ACJHR protocol gives the Court jurisdiction only over states that have ratified the protocol (article 29/2). This provision not only relieves non-parties to the protocol from international criminal responsibility at the regional level but also sets the starting point for responsibility at the time of coming into effect of the protocol or deposit of instruments of ratification (article 9). More importantly, this provision precludes individual criminal responsibility. There is, however, an amendment to the ACJHR protocol under consideration that would address this gap in the official text adopted in 2008.17 The proposed amendment includes provisions on individual and corporate criminal responsibility as well as a cap on presidential immunity.18
4 Conclusions
Criticisms of the ACJHR, especially its merged and extended mandate, are broad and wide reaching. However, the most significant issues relate to whether or not the coming into being of
15 Timothy Fwa Yerima, p. 123
16 The validity of declarations made under the ACHPR protocol to the ACJHR protocol is debatable. If these declarations are valid, then African states who have already made the declarations under the first protocol will need to make the declarations all over again.
17 Meeting of Government Experts and Ministers of Justice/Attorneys General on Legal Matters, Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 7 to 11 and 14 to 15 May 2012, Addis Ababa, Ethiopia
18 The merging of institutions dealing with state responsibility and individual guilt in the same court is itself a subject of debate. For a general discussion on the issue, please see: Frans Viljoen, AU Assembly should consider human rights implications before adopting the Amending Merged African Court Protocol, University of Pretoria, 23 May, 2012, available at: www.africlaw.com; also see: Alexandra Huneeus, International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts, The American Journal of International Law, Vol. 107, 2013 for a more comparative approach to the merged jurisdiction

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the Court will promote or aggravate the situation of human rights on the continent. To understand this discourse one has to look more closely at what has actually changed in the protocol establishing the ACJHR. For the most part, the Court merged the jurisdictions of the pre-existing (at least on paper) two courts: the African Court on Human and Peoples’ Rights; and, the African Court of Justice. In addition, the new Court is expected to have extensive jurisdictions pertaining to international criminal law.
While the merging of the two courts does raise some important questions, these could be explained through the stated goal of rationalizing the system and ensuring cost effectiveness. The way the two sections are organized can possibly maintain the unique aspects of both courts while at the same time serving this goal. Similarly, the criticisms arising from operational issues such as funding and human resources are pre-existing concerns applicable to the whole African human rights system.
The remaining issues relate to the criminal law jurisdiction of the Court. As it is stipulated in the establishing protocol, the mandate of this court in these matters is extensive. This has raised concerns relating to expertise and efficiency. However, this could also be a positive point in terms of addressing violations that are more extensive in the regional context or are unique to African in some form. The inclusion of crimes such as piracy and corruption could be seen in this light.
A related issue is the implications of the ACJHR vis-à-vis the ICC. The starting point for this concern is the apparent emergence of the ACJHR in the context of the tension between the ICC and African states following the indictment of sitting heads of state and government by the ICC. Since the need for the establishment of the Court was recognized as far back as the 1980s and the protocol was adopted in 2008, prior to the referral of the Sudanese President to the ICC, this may be a bit far fetched. However, there is a clear need to clarify the relationship of the Court with the ICC. As it is, there is nothing to prevent the ICC from entertaining cases relating to individual criminal responsibility of African leaders since no such mechanism exists at the regional level (even after the ACJHR becomes operational) as long as national mechanisms are found to be wanting in this respect.

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Bibliography
Assembly of the African Union, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245 (XIII), Sirte, July 3, 2009
AU, Constitutive Act of the African Union (2000/2001)
B. M Ngoepe, The Mandate of the Merged African Court of Justice and Human Rights and its Implications on Individual States, 7th Annual Africa Prosecutors Association Conference and Annual General Meeting Windhoek, Namibia 7-10 October 2012
Coalition for an Effective African Court on Human and Peoples’ Rights, Ratification Status: Protocol on the Statute of the African Court of justice and Human Rights, available at: www.africancourtcoalition.org (accessed 08,06/2014)
Kristen Rau, Jurisprudential Innovation or Accountability Avoidance? The International Criminal Court and Proposed Expansion of the African Court of Justice and Human Rights, Minnesota Law Review, Volume 97, pp. 669-708
Max Du Plessis, A case of negative regional complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes, Oxford Institute for Ethics, Law and Armed Conflict, August 27, 2012 (available at: www.ejiltalk.org)
Max Du Plessis, Implications of the AU decision to give the African Court jurisdiction over international crimes, Institute of Security Studies Paper, June 2012
Meeting of Government Experts and Ministers of Justice/Attorneys General on Legal Matters, Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 7 to 11 and 14 to 15 May 2012, Addis Ababa, Ethiopia
OAU, African Charter on Human and Peoples’ Rights (ACHPR) (adopted 1981 and came into force 1986)
OAU, Charter of the Organization of African Unity (adopted 1963 and came into force 1963)
OAU, Protocol to the African Charter on Human and Peoples’ Rights on the African Human Rights Court (adopted 1998 and came into force 2004
Sharon Esther Nakandha, Africa and the International Criminal Court: Mending Fences, Avocats Sans Frontières, Kampala, Uganda, July 2012
Sonya Sceats, Africa’s New Human Rights Court: Whistling in the Wind? Chatham House Briefing Paper, International Law, March 2009

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Timothy Fwa Yerima, Comparative Evaluation of the Challenges of African Regional Human Rights Courts, Journal of Politics and Law, Vol. 4, No. 2, Canadian Center of Science and Education, September 2011, pp. 120-127