During the African Union Summit in the summer of 2008, the Protocol on the Statute of the African Court of Justice and Human Rights (Protocol) creating an African Court of Justice and Human Rights (Court) was adopted. The Protocol merges the African Court on Human and Peoples' Rights and the Court of Justice of the African Union into one single court (Article 2). The Protocol thus replaces the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (adopted in 1998) and the Protocol of the Court of Justice of the African Union (adopted in 2003) (Article 1). The Protocol and the Statute annexed “shall enter into force thirty (30) days after the deposit of the instruments of ratification by fifteen (15) Member States” (Article 9).
The Court's Statute gives a detailed summary regarding the organization and the procedure of the Court. As the name suggests, the Court will be divided into two sections, a General Affairs Section and a Human Rights Section, where the former will “be competent to hear all cases submitted under Article 28 of the Statute” unless they are considered to belong to the Human Rights Section (Article 17).
Articles 3 to 15 govern the selection, election and replacement of judges. According to Article 3, the Court will be composed of sixteen judges, nationals of States that are parties to the Protocol and appointed for a term of six years, with the ability to be “re-elected only once” (Article 8). A State Party can only have one judge at a time and all judges must be “impartial and independent” and “with high moral character” (Article 4). Article 7, which states that the Executive Council will elect the judges and the Assembly will then appoint them, also mentions that “equitable gender representation” should be ensured. During their term, the judges shall enjoy “full privileges and immunities (like) diplomatic agents in accordance with international law” (Article 15). The compensation received for their service should be “free from all taxation” and not subject to change during a term (Article 23).
Chapter III governs the competence of the Court. Article 28 lists the types of cases the Court can hear and Article 29 enumerates the types of entities that can submit a case to the Court. The absence of a provision allowing individuals to bring claims before the Court - unless the Member State being sued made a “declaration accepting the competence of the Court to receive (such) cases”- is to be noted. Also interesting is Article 31 governing the applicable law, which enumerates all types of law to be considered by the Court, such as the Constitutive Act, international treaties, international customary law, general principles of law universally recognized by the African states, any other law relevant to the case, and other “judicial decisions and writings of the most highly qualified publicists...(as) subsidiary means” of interpretation. The decisions of the Court are binding (Article 45).
Finally, the Court is authorized to issue advisory opinions “on any legal question at the request of the Assembly, the Parliament, the Executive Council, the Peace and Security Council, the Economic, Social and Cultural Council (ECOSOC), the Financial Institutions or any other organ of the Union as may be authorized by the Assembly” (Article 53).
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