African Union adopts the Protocol on the Statute of the African Court of Justice and Human Rights

At the July 2008 African Union Summit, Justice Ministers formally adopted a single legal instrument to create an African Court of Justice and Human Rights. The ‘Protocol on the Statute of the African Court of Justice and Human Rights’ (the single Protocol) resulted from the merger of the African Court on Human and Peoples' Rights and the Court of Justice of the African Union. The decision to merge the two courts at the Assembly of Heads of State and Government of the African Union in June 2004 was designed to ensure adequate resources to fund a single effective continental court.

The single Protocol 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 (the old Protocol), and the Protocol of the Court of Justice of the African Union which was adopted in 2003. The old Protocol shall remain in force for a transitional period of a year to enable the African Court on the Human and Peoples' Rights to implement measures necessary for the transfer of its prerogatives, assets, rights, and obligations to the African Court of Justice and Human Rights. The single Protocol shall enter into force thirty days after the deposit of the instruments of ratification by fifteen member states.

The establishment of a human rights Court which considers violations of human rights abuses and renders binding judgments, is long overdue given the backdrop of the region’s dismal human rights record. Entities that are able to submit cases to the Court include State Parties, the African Commission on Human and Peoples’ Rights, the African Committee of Experts on the Rights and Welfare of the Child, African inter-governmental organisations and African National Human Rights Institutions.

However, individuals and NGOs can only submit cases against states if the state concerned has made a declaration accepting the competence of the Court to do so under Article 30(f) of the single Protocol. Unless States make such a declaration, this limitation renders access to justice illusory for human rights victims.

This development also marks a departure from the practice of African regional and sub-regional human rights mechanisms which have long recognised individual petitions for human rights abuses. The procedures of the African Commission and sub-regional courts such as the Court of Justice of the Economic Community of West African States (ECOWAS), the East African Court of Justice (EACJ), and the Southern African Development Community (SADC) Tribunal clearly demonstrate that victims require direct access to human rights institutions in order to ensure effective protection of human rights in the region.

While the adoption of this instrument is a welcome development, the issue of access for individuals remains a matter of concern which threatens the effectiveness of the Court. The stakeholder community, states, civil society, the African Union should all seek to intensify efforts to urge states to ratify the single Protocol, and states should make the declaration allowing for individual petitions.