Courts for Africa: Considering the Co-Existence of the African Court on Human and Peoples' Rights and the African Court of Justice
| DOI | 10.1177/016934410402200205 |
| Date | 01 June 2004 |
| Published date | 01 June 2004 |
| Subject Matter | Part A: Article |
COURTS FOR AFRICA: CONSIDERING THE CO-
EXISTENCE OF THE AFRICAN COURT ON HUMAN
AND PEOPLES’ RIGHTS AND THE AFRICAN COURT
OF JUSTICE
FRANS VILJOEN*AND EVARIST BAIMU**
Abstract
Institutional strengthening has characterised the transformation of the OAU into the
AU. This contribution focuses on two new judicial institutions in Africa, the African
Court on Human and Peoples’ Rights (ACHR) and the African Court of Justice
(ACJ). The ACHR Protocol, adopted in 1998, and entering into force in 2004, mainly
entrusts the ACHR with the application and interpretation of the African Charter on
Human and Peoples’ Rights (African Charter). The ACJ Protocol, adopted in 2003,
not yet in force, establishes the ACJ as the AU’s principal judicial organ. As the AU
Constitutive Act embraces the promotion and protection of human rights as founding
principle, the possibility of overlapping mandates and conflicting judgments between
the two Courts arises. The authors try to balance the important role of the ACJ in
realising human rights with the need for coherence, consistency and certainty with
respect to African human rights law. Some solutions, such as institutional co-
operation, preliminary referrals on crucial questions of human rights from the ACJ to
the ACHR, the accession of the AU to the African Charter and harmonisation through
Rules of Procedure, are suggested.
1. INTRODUCTION
The near future is set to see two courts of continental jurisdiction exist side
by side in Africa: the African Court on Human and Peoples’ Rights (ACHR)
1
Netherlands Quarterly of Human Rights, Vol. 22/2, 241-267, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 241
* Professor of Law, University of Pretoria; MA, LL.B, LL.D (Pretoria), LL.M (Cambridge);
fviljoen@hakuna.up.ac.za
** LL.D candidate and Research Fellow, Centre for Human Rights, University of Pretoria; LL.B
(Dar-es-Salaam), LL.M (Pretoria); ebaimu@postino.up.ac.za
1
The Protocol to the African Charter on Human and Peoples’ Rights Relating to the
Establishment of the African Court on Human and Peoples’ Rights (ACHR Protocol) entered
into force on 25 January 2004, 30 days after the deposit of the 15th instrument of ratification
to the African Union Commission on 26 December 2003 (AU Commission, ‘The Protocol on
the African Court on Human and Peoples’ Rights to come into force soon’, Press Release No.
121/2003 (26 December 2003)). The Protocol is reprinted in, e.g.,African Journal of
International and Comparative Law, Vol. 12, 2000, p. 187 and Heyns, C. (ed.), Human Rights Law
in Africa 1999, Kluwer Law International, The Hague, 2002, p. 279, and is available at the web
242
and the African Court of Justice (ACJ).
2
This contribution examines the
implications of the co-existence-to-be of these two judicial institutions,
focussing on the potential role of the ACJ in furthering human rights in
Africa, and on difficulties that overlapping mandates may give rise to.
Developments towards establishing these institutions are embedded in
the process of political and economic integration in Africa.
3
The agendum
of inter-State political and economic co-operation in Africa has been
pursued since the 1960s through the establishment of regional bodies such
as the Organisation of African Unity (OAU)
4
and the African Economic
Community (AEC),
5
as well as sub-regional economic bodies such as the
Economic Community of West African States (ECOWAS), the Common
Market of Eastern and Southern Africa (COMESA), the Southern Africa
Development Community (SADC) and the Maghreb Arab Union (UMA).
These efforts reached their apex in the adoption of the Constitutive Act of
the African Union (the Act) on 11 July 2000.
6
The African Union (AU)
combines the political and economic aspects of regional co-operation on
Frans Viljoen and Evarist Baimu
site of the African Union, www.africa-union.org. The 15 State parties are: Algeria, Burkina
Faso, Burundi, the Comoros, Coˆte d’Ivoire, the Gambia, Lesotho, Libya, Mali, Mauritius,
Rwanda, Senegal, South Africa, Togo and Uganda.
2
The Protocol of the Court of Justice of the African Union (ACJ Protocol), www.africa-
union.org, adopted on 11 July 2003, Maputo, Mozambique, not yet in force. As at 31 January
2004, 22 AU member States have signed but none has ratified the Protocol.
3
Efforts to achieve international co-operation (at the global and regional level) provide a
window of opportunities for furthering, among others, the realisation of human rights. The
link between international co-operation and human rights is underlined by the juxtaposition
of the two concepts in the constitutional structure of several intergovernmental organisations.
According to the UN Charter, the UN has the purpose of ‘achieving international co-
operation in promoting and encouraging respect for human rights’ (Article 1(3) of the UN
Charter). Similarly the OAU Charter identifies one of the objectives of OAU as that of
promoting ‘international co-operation, having due regard to (...) the Universal Declaration of
Human Rights’ (Article 2(1)(e) of the OAU Charter). In practice, this link is given life in the
history of the European Union, which began as an institutional framework for facilitating
international economic framework and evolved into an important platform for promoting
human rights in Europe and, indeed, worldwide. See Alston, P. and Weiler, J., ‘An ‘‘Ever
Closer Union’’ in Need of a Human Rights Policy’, European Journal of International Law, Vol.
9, 1998, p. 658 and Brandtner, B. and Rosas, A., ‘Human Rights and the External Relations of
the European Community: An Analysis of Doctrine and Practice’, European Journal of
International Law, Vol. 9, 1998, p. 468.
4
The OAU was founded on 25 May 1963 when its Charter was adopted by the Heads of State
and Government of 32 African countries. The OAU Charter is available at 47 United Nations
Treaty Series 39; International Legal Materials, 1963, p. 766 and Heyns, C. (ed.), Human Rights
Law in Africa 1998, Kluwer Law International, The Hague, 2001, p. 117.
5
For more information about the AEC see Senghor, J., ‘The Treaty Establishing the African
Economic Community: An Introductory Essay’, African Yearbook of International Law, Vol. 2,
1994, p. 183.
6
The Act entered into force on 26 May 2001. The Act replaces the OAU Charter, see Article
33(1) of the Act. The provisions of the Act take precedence over and supersede any
inconsistent or contrary provision of the Abuja Treaty, see Article 33(2) of the Act. The Act is
reprinted in African Human Rights Law Journal, Vol. 1, 2001, p. 315 and in African Journal of
International and Comparative Law, Vol. 12, 2000, p. 629.
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