The future African Court:
Progress, Prospects, Challenges –
So what are YOU going to do?
Presented by Don Deya
Chief Executive Officer, PALU
RESPECT
The option …
• The option of doing NOTHING is so alluring!
• Become an Armchair Philosopher, criticize,
offer no alternatives, do NOTHING!
The biblical parable of the talents
(Matthew 25: 14 – 30):
5 talents
5 talents MORE
2 talents
2 talents MORE
1 talent
Dug a hole and hid it!
African Union; African unity
•
•
•
Resurgence of the AU: 2000 to date
From 25 May 1963: over 50 Treaties & Protocols
From 2000 to date: over 28 Treaties & Protocols; over 18 touching on
democracy, good governance, human & peoples’ rights or the fight against
impunity
Key Instruments
1.
Constitutive Act of the African Union, 2000
2.
(O)AU Convention Governing the Specific Aspects of Refugee Problems in Africa,
1969
3.
Convention for the Elimination of Mercenariism in Africa, 1977
4.
African Charter on Human & People’s Rights, 1981
a.
Protocol to the African Charter (…) on the Establishment of an African Court
on Human & People’s Rights, 1998
b.
Protocol to the African Charter (…) on the Rights of Women in Africa, 2003
5.
African Charter on the Rights & Welfare of the Child, 1990
AU – some of the Treaties
(continued)
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
Protocol on the establishment of the Peace & Security Council of the
African Union (AU-PSC), 2002
Protocol of the Court of Justice of the African Union, 2003
Convention on Preventing & Combating Corruption, 2003
Statutes of the Economic, Social and Cultural Council of the African Union
(ECOSOCC-AU), 2004
Non-Aggression & Common Defence Pact, 2005
African Charter on Democracy, Elections & Governance (ACDEG), 2007
Protocol on the Statute of the African Court of Justice & Human Rights,
2008
Protocol on Relations between the African Union (AU) and the Regional
Economic Communities (RECs), 2008
Statute of the African Union Commission on International Law (AUCIL),
2009
Convention for the Protection & Assistance of Internally Displaced
Persons, 2009
African Charter on Values & Principles of Public Service & Administration,
2011
African Union (AU) – the NEW Treaties:
Malabo, Equatorial Guinea, June 2014
By the Assembly
17. Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and
Human Rights, 2014 (the Tri-Jurisdictional Court; incompletely referred to as the
‘International Crimes Protocol)
18. Protocol to the Constitutive Act of the African Union relating to the Pan-African
Parliament, 2014 (PAP Protocol)
19. African Union Convention on Cross-border Cooperation, 2014 (Niamey Convention)
20. African Charter on the Values ​and Principles of Decentralization, Local Governance and
Local Development, 2014 (Decentralization Convention)
21. African Union Convention on Security in Cyber-Space and Protection of Personal Data,
2014 (Cyber-Security Convention)
22. Protocol on the Establishment of the African Monetary Fund, 2014 and the Statute of the
African Monetary Fund, 2014 (AMF Protocol and Statute)
By the Executive Council
22. Rules of Procedure of the (African Union) Specialized Technical Committee (STC) on Justice
and Legal Affairs, 2014
Other Policy Instruments (1)
Over 100 Policy Frameworks, including: 1. Post-Conflict Reconstruction and Development
Framework, 2006
2. Migration Policy Framework for Africa, 2006
3. Social Policy Framework for Africa, 2008
4. African Mining Vision (AMV)
5. Common African Defence and Security Policy (CADSP)
6. Comprehensive Africa Agricultural Development
Programme (CAADP)
7. Framework and Guidelines on Land Policy in Africa,
2009
8. Productivity Agenda for Africa, 2010
Other Policy Instruments (2)
Several Declarations, including:  Shared Values Declaration
 50th Anniversary Declaration
Several Decisions, including on specific Country
Situations, including:  December 2012: Appointing a Commission of
Inquiry into Human Rights Violations in South
Sudan
The context: 3 things to bear in mind
simultaneously
1.
African Governance Architecture (AGA)
–
–
–
2.
(Draft) Policy Framework for Transitional Justice in Africa
–
3.
African Human Rights Strategy (AHRS)
The “Ecosystem”
Complementarity and co-operation with the Court
Looking at the full range of needs of Africans: truth-seeking and truth-telling;
reconcililation; memorialization; reparations AND accountability, including – though not
limitied to – individual criminal responsibility
Extending the jurisdiction of the African Court, INCLUDING to cover
international and transnational crimes
–
–
Positive complementarity
Bear in mind AU Model Law for Universal Jurisdiction, 2012 (policy decision HAS been
made)
Also bear in mind (in the background): the African Peace & Security Architecture
(APSA), and its complementarity with AGA
An activist’s dream!
1. Body of laws
2. Range of institutions
3. (No?) shortage of ‘users’
The process (1) - Antecedent
1.
2.
3.
4.
5.
6.
7.
8.
Pre-1981, during the drafting of the African Charter: recommendation for a
‘World Criminal Court’ (obiter dicta?)
Pre-1998, during the drafting of the African Court Protocol: recommendation for
a Criminal Chamber – not taken up
Pre-2006, Eminent Panel of African Jurists on the case of Hissene Habre:
recommendation for a Criminal Chamber – not taken up
Pre-2008, during the drafting of the “Merger” Court Protocol: recommendation
for a Criminal Chamber – not taken up
February 2009: AU Assembly “Decision 213”: Directed AU Commission (Addis
Ababa), African Court (Arusha) and African Commission (Banjul) to examine and
report on the possible implications of granting international criminal jurisdiction
to the African Court
April 2009: Report of the AU-EU Expert Panel on Universal Jurisdiction:
commended the AU Assembly for “Decision 213”
January 2010: AU Assembly directs that a Report and draft Protocol be prepared
February 2010: AU Commission appoints Pan African Lawyers Union (PALU) as its
Consultant to undertake the above
The process (2) – the current phase
N
o
Period
Activity
1
Feb 2010
AUC appoints PALU) as its Consultant
2
Feb – Jun 2010
PALU undertakes Desk Survey, LIMITED Consultations; drafts a Report & draft Protocol
& Statute (hereinafter called ‘Instrument’)
3
Jun 2010
Office of the Legal Counsel of the AUC (OLC-AUC) reviews Report & Instrument &
issues Directives
4
Jul 2010
PALU issues Revised Report & Instrument
5
Aug & Nov 2010
2 Validation Meetings, Midrand, South Africa: AU Organs & Institutions, & REC Legal
Counsel ### Directives & Recommendations
6
May 2010 – May
2012
• 4 Government Experts’ Meetings
• 1 Ministers of Justice & Attorneys’ General
### Directives & Recommendations
7
Jul 2012, Jan 2013,
Jul 2013, Jan 2014
4 Mentions of the matter at AU Summit: • Requiring further studies on (1) Financial Implications (2) Popular Uprisings
• Calling for urgent conclusion of the exercise
8
May 2014
Inaugural Specialized Technical Committee (STC) on Justice & Legal Affairs – amends &
‘clears’ draft Instrument, & 6 others
9
June 2014
AU Summit adopts the Instrument & 4 others
The principles underlying the process
• Pragmatism: working with the Africa that exist
• Gradualism: think big, but start small
• Flexibility: AU Assembly (‘Summit’) can easily
increase Judges, increase crimes, amend
provisions, especially based on
recommendations of the Court
• PALU’s personal ethos: Audacity; long-term
view
The 4 Courts
No
Year
Place
Court
Instrument
1
1998
Ouagadougou
Burkina Faso
African Court on Human &
People’s Rights (AfCHPR)
Protocol to the African
Charter (…) on the
Establishment of an African
Court on Human & People’s
Rights, 1998
2
2003
African Court of Justice (ACJ)
Protocol of the Court of
Justice of the African Union,
2003
3
2008
Sharm-el-Sheik
Egypt
African Court of Justice &
Human Rights
Protocol on the Statute of
the African Court of Justice
& Human Rights, 2008
4
2014
Malabo
Equatorial Guinea
African Court of Justice &
Human & Peoples’ Rights
Protocol on Amendments to
the Protocol on the Statute of
the African Court of Justice
and Human Rights, 2014
Provisions
1. Positive complementarity: national Courts
2. Complementarity and co-operation with other
international Courts
– Why must a future African Court – ICC relationship be
conceptualized in exclusively conflictual terms
– What has the current African Court said about
potential relationship?
3. ‘Saving’ provisions
4. Expanded array of crimes “of concern to
Africans”: ‘enabling crimes’
The Jurisdiction
Jurisdiction
Recommendation
Subject-matter jurisd.
(Rationae materiae)
•Genocide, Crimes against humanity, War crimes (ICC
definitions)
•Unconstitutional change of government (ACDEG)
•Others, according to AU Treaties & Protocols: Corruption,
Money laundering; Illegal Exploitation of Natural Resources
(ICGLR); Terrorism, Piracy (UNCLOS), Mercenariism;
Trafficking in Persons, Drugs, Hazardous Wastes;
14 Crimes
Personal jurisd.
(Rationae personae)
•Open to Africans and non-Africans in Africa
•Over 18 years
•Legal and Natural Persons (Corporate criminal liability)
Territorial jurisd.
(Rationae loci)
•Within Africa; within States Parties
Temporal jurisd.
(Rationae temporis)
•Non-retrospectivity
•Leaves intact customary international law, though (which is
positive!)
16
Considerations
•
Independence: DEMONSTRABLE knowledge, skills, experience:
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–
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–
•
•
•
Chambers
Office of the Prosecutor
Registry
Principal Defender
Collegiate Decision-making: Chambers, Office of the Prosecutor, Registry
How does the AU make law? Realistic scenarios
What are our choices/ options?
Financing the Court
• Need for budget advocacy generally
• “Africa Rising”
• Innovations
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–
–
–
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Africa Risk Capacity (ARC)
African Investment Bank (AIB)
African Monetary Fund (AMF)
African Union Foundation (AUF)
Legal Aid Fund for the African Court/ African Human Rights
System
– African Central Bank (ACB)
• It begins and ends with YOU!
Immunities/ Impunities
• (Next Session)
• PALU did not propose, and actually always opposed this
‘proposition’
• So did the Office of the Legal Counsel of the African Union
Commission (OLC-AUC)
• Decisions of the apex AU policy organ: the Summit
• Merits of AU policy organs’ strategy on stability
• We can: – Investigate Heads of State/ Senior State Officials
– Prosecute their Co-perpetrators (Direct and Indirect Co-perpetrators)
• Tenure prolongation: AGA and APSA (Unconstitutional Change of
Government)
Questions for us all
1.
2.
3.
4.
5.
Instruments DON’T ratify themselves. Please inquire, to the best of your
knowledge what ratification campaigns have been undertaken in your
country/ region; and which ones you have participated in
Judges/ Commissioners don’t elect themselves. What can lawyers/ civil
society do?
Courts (Judges) don’t file cases; litigants/ lawyers do. Please inquire, to the
best of your knowledge what litigation has been commenced in your
country/ region; and which ones you have participated in. Selemani’s point:
great lawyers file great cases!
Decisions don’t implement themselves. Please inquire, to the best of your
knowledge what implementation campaigns have been undertaken in your
country/ region; and which ones you have participated in
Advocacy is a CONTACT Sport!
–
Michael Jackson: (Wo)man in the mirror: MAKE that change!
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