Protocol to the African Charter
on Human and Peoples’ Rights on the Establishment
of an African Court on Human and Peoples’ Rights
The Member States of the Organization of African
Unity hereinafter referred to as the OAU, States
Parties to the African Charter on Human and Peoples’
Rights:
Considering that the Charter of the Organization
of African Unity recognizes that freedom, equality,
justice, peace and dignity are essential objectives
for the achievement of the legitimate aspirations
of the African peoples;
Noting that the African Charter on Human and Peoples’
Rights reaffirms adherence to the principles of
human and peoples’ rights, freedoms and duties
contained in the declarations, conventions and other
instruments adopted by the Organization of African
Unity, and other international organizations;
Recognizing that the twofold objective of the African
Charter on Human and Peoples’ Rights is to
ensure on the one hand promotion and on the other
protection of human and peoples’ rights, freedoms
and duties;
Recognizing further, the efforts of the African
Commission on Human and Peoples’ Rights in
the promotion and protection of human and peoples’
rights since its inception in 1987;
Recalling resolution AHG/Res.230 (XXX) adopted
by the Assembly of Heads of State and Government
in June 1994 in Tunis, Tunisia, requesting the Secretary-General
to convene a Government experts’ meeting to
ponder, in conjunction with the African Commission,
over the means to enhance the efficiency of the
African Commission and to consider in particular
the establishment of an African Court on Human and
Peoples’ Rights;
Noting the first and second Government legal experts’
meetings held respectively in Cape Town, South Africa
(September, 1995) and Nouakchott, Mauritania (April,
1997), and the third Government legal experts’
meeting held in Addis Ababa, Ethiopia (December,
1997), which was enlarged to include Diplomats;
Firmly convinced that the attainment of the objectives
of the African Charter on Human and Peoples’
Rights requires the establishment of an African
Court on Human and Peoples’ Rights to complement
and reinforce the functions of the African Commission
on Human and Peoples’ Rights.
HAVE AGREED AS FOLLOWS:
Article 1
ESTABLISHMENT OF THE COURT
There shall be established within the Organization
of African Unity an African Court on Human and Peoples’
Rights (hereinafter referred to as "the Court"),
the organization, jurisdiction and functioning of
which shall be governed by the present Protocol.
Article 2
RELATIONSHIP BETWEEN THE COURT AND THE COMMISSION
The Court shall, bearing in mind the provisions
of this Protocol, complement the protective mandate
of the African Commission on Human and Peoples’
Rights (hereinafter referred to as "the Commission")
conferred upon it by the African Charter on Human
and Peoples’ Rights (hereinafter referred to
as "the Charter");
Article 3
JURISDICTION
The jurisdiction of the Court shall extend to all
cases and disputes submitted to it concerning the
interpretation and application of the Charter, this
Protocol and any other relevant Human Rights instrument
ratified by the States concerned.
In the event of a dispute as to whether the Court
has jurisdiction, the Court shall decide.
Article 4
ADVISORY OPINIONS
At the request of a Member State of the OAU, the
OAU, any of its organs, or any African organization
recognized by the OAU, the Court may provide an
opinion on any legal matter relating to the Charter
or any other relevant human rights instruments,
provided that the subject matter of the opinion
is not related to a matter being examined by the
Commission.
The Court shall give reasons for its advisory opinions
provided that every judge shall be entitled to deliver
a separate or dissenting decision.
Article 5
ACCESS TO THE COURT
The following are entitled to submit cases to the
Court
• The Commission;
• The State Party which has lodged a complaint
to the Commission;
• The State Party against which the complaint
has been lodged at the Commission;
• The State Party whose citizen is a victim
of human rights violation;
• African Intergovernmental Organizations.
When a State Party has an interest in a case, it
may submit a request to the Court to be permitted
to join.
The Court may entitle relevant Non Governmental
Organizations (NGOs) with observer status before
the Commission, and individuals to institute cases
directly before it, in accordance with article 34
(6) of this Protocol.
Article 6
ADMISSIBILITY OF CASES
The Court, when deciding on the admissibility of
a case instituted under article 5 (3) of this Protocol,
may request the opinion of the Commission which
shall give it as soon as possible.
The Court shall rule on the admissibility of cases
taking into account the provisions of article 56
of the Charter.
The Court may consider cases or transfer them to
the Commission.
Article 7
SOURCES OF LAW
The Court shall apply the provisions of the Charter
and any other relevant human rights instruments
ratified by the States concerned.
Article 8
CONSIDERATION OF CASES
The Rules of Procedure of the Court shall lay down
the detailed conditions under which the Court shall
consider cases brought before it, bearing in mind
the complementarity between the Commission and the
Court.
Article 9
AMICABLE SETTLEMENT
The Court may try to reach an amicable settlement
in a case pending before it in accordance with the
provisions of the Charter.
Article 10
HEARINGS AND REPRESENTATION
The Court shall conduct its proceedings in public.
The Court may, however, conduct proceedings in camera
as may be provided for in the Rules of Procedure.
Any party to a case shall be entitled to be represented
by a legal representative of the party’s choice.
Free legal representation may be provided where
the interests of justice so require.
Any person, witness or representative of the parties,
who appears before the Court, shall enjoy protection
and all facilities, in accordance with international
law, necessary for the discharging of their functions,
tasks and duties in relation to the Court.
Article 11
COMPOSITION
The Court shall consist of eleven judges, nationals
of Member States of the OAU, elected in an individual
capacity from among jurists of high moral character
and of recognized practical, judicial or academic
competence and experience in the field of human
and peoples’ rights.
No two judges shall be nationals of the same State.
Article 12
NOMINATIONS
States Parties to the Protocol may each propose
up to three candidates, at least two of whom shall
be nationals of that State.
Due consideration shall be given to adequate gender
representation in the nomination process.
Article 13
LIST OF CANDIDATES
Upon entry into force of this Protocol, the Secretary-General
of the OAU shall request each State Party to the
Protocol to Present, within ninety (90) days of
such a request, its nominees for the office of judge
of the Court.
The Secretary-General of the OAU shall prepare a
list in alphabetical order of the candidates nominated
and transmit it to the Member States of the OAU
at least thirty days prior to the next session of
the Assembly of Heads of State and Government of
the OAU hereinafter referred to as "the Assembly".
Article 14
ELECTIONS
The judges of the Court shall be elected by secret
ballot by the Assembly from the list referred to
in Article 13 (2) of the present Protocol.
The Assembly shall ensure that in the Court as a
whole there is representation of the main regions
of Africa and of their principal legal traditions.
In the election of the judges, the Assembly shall
ensure that there is adequate gender representation.
Article 15
TERM OF OFFICE
The judges of the Court shall be elected for a
period of six years and may he re-elected only once.
The terms of four judges elected at the first election
shall expire at the end of two years, and the terms
of four more judges shall expire at the end of four
years.
The judges whose terms are to expire at the end
of the initial periods of two and four years shall
be chosen by lot to be drawn by the Secretary-General
of the OAU immediately after the first election
has been completed.
A judge elected to replace a judge whose term of
office has not expired shall hold office for the
remainder of the predecessor’s term.
All judges except the President shall perform their
functions on a part-time basis. However, the Assembly
may change this arrangement as it deems appropriate.
Article 16
OATH OF OFFICE
After their election, the judges of the Court shall
make a solemn declaration to discharge their duties
impartially and faithfully.
Article 17
INDEPENDENCE
The independence of the judges shall be fully ensured
in accordance with international law.
No judge may hear any case in which the same judge
has previously taken part as agent, counsel or advocate
for one of the parties or as a member of a national
or international court or a commission of enquiry
or in any other capacity. Any doubt on this point
shall be settled by decision of the Court.
The judges of the Court shall enjoy, from the moment
of their election and throughout their term of office,
the immunities extended to diplomatic agents in
accordance with international law.
At no time shall the judges of the Court be held
liable for any decision or opinion issued in the
exercise of their functions.
Article 18
INCOMPATIBILITY
The position of judge of the Court is incompatible
with any activity that might interfere with the
independence or impartiality of such a judge or
the demands of the office, as determined in the
Rules of Procedure of the Court.
Article 19
CESSATION OF OFFICE
A judge shall not be suspended or removed from
office unless, by the unanimous decision of the
other judges of the Court, the judge concerned has
been found to be no longer fulfilling the required
conditions to be a judge of the Court.
Such a decision of the Court shall become final
unless it is set aside by the Assembly at its next
session.
Article 20
VACANCIES
In case of death or resignation of a judge of the
Court, the President of the Court shall immediately
inform the Secretary General of the Organization
of African Unity, who shall declare the seat vacant
from the date of death or from the date on which
the resignation takes effect.
The Assembly shall replace the judge whose office
became vacant unless the remaining period of the
term is less than one hundred and eighty (180) days.
The same procedure and considerations as set out
in Articles 12, 13 and 14 shall be followed for
the filling of vacancies.
Article 21
PRESIDENCY OF THE COURT
The Court shall elect its President and one Vice-President
for a period of two years. They may be re-elected
only once.
The President shall perform judicial functions on
a full-time basis and shall reside at the seat of
the Court.
The functions of the President and the Vice-President
shall be set out in the Rules of Procedure of the
Court.
Article 22
EXCLUSION
If a judge is a national of any State which is
a party to a case submitted to the Court, that judge
shall not hear the case.
Article 23
QUORUM
The Court shall examine cases brought before it,
if it has a quorum of at least seven judges.
Article 24
REGISTRY OF THE COURT
The Court shall appoint its own Registrar and other
staff of the registry from among nationals of Member
States of the OAU according to the Rules of Procedure.
The office and residence of the Registrar shall
be at the place where the Court has its seat.
Article 25
SEAT OF THE COURT
The Court shall have its seat at the place determined
by the Assembly from among States parties to this
Protocol. However, it may convene in the territory
of any Member State of the OAU when the majority
of the Court considers it desirable, and with the
prior consent of the State concerned.
The seat of the Court may be changed by the Assembly
after due consultation with the Court.
Article 26
EVIDENCE
The Court shall hear submissions by all parties
and if deemed necessary, hold an enquiry. The States
concerned shall assist by providing relevant facilities
for the efficient handling of the case.
The Court may receive written and oral evidence
including expert testimony and shall make its decision
on the basis of such evidence.
Article 27
FINDINGS
If the Court finds that there has been violation
of a human or peoples’ right, it shall make
appropriate orders to remedy the violation, including
the payment of fair compensation or reparation.
In cases of extreme gravity and urgency, and when
necessary to avoid irreparable harm to persons,
the Court shall adopt such provisional measures
as it deems necessary.
Article 28
JUDGEMENT
The Court shall render its judgement within ninety
(90) days of having completed its deliberations.
The judgement of the Court decided by majority shall
be final and not subject to appeal.
Without prejudice to sub-article 2 above, the Court
may review its decision in the light of new evidence
under conditions to be set out in the Rules of Procedure.
The Court may interpret its own decision.
The judgement of the Court shall be read in open
court, due notice having been given to the parties.
Reasons shall be given for the judgement of the
Court.
If the judgement of the Court does not represent,
in whole or in part, the unanimous decision of the
judges, any judge shall be entitled to deliver a
separate or dissenting opinion.
Article 29
NOTIFICATION OF JUDGEMENT
The parties to the case shall be notified of the
judgement of the Court and it shall be transmitted
to the Member States of the OAU and the Commission.
The Council of Ministers shall also be notified
of the judgement and shall monitor its execution
on behalf of the Assembly.
Article 30
EXECUTION OF JUDGEMENT
The States parties to the present Protocol undertake
to comply with the judgement in any case to which
they are parties within the time stipulated by the
Court and to guarantee its execution.
Article 31
REPORT
The Court shall submit to each regular session
of the Assembly, a report on its work during the
previous year. The report shall specify, in particular,
the cases in which a State has not complied with
the Court’s judgement.
Article 32
BUDGET
Expenses of the Court, emoluments and allowances
for judges and the budget of its registry, shall
be determined and borne by the OAU, in accordance
with criteria laid down by the OAU in consultation
with the Court.
Article 33
RULES OF PROCEDURE
The Court shall draw up its Rules and determine
its own procedures. The Court shall consult the
Commission as appropriate.
Article 34
RATIFICATION
This Protocol shall be open for signature and ratification
or accession by any State Party to the Charter.
The instrument of ratification or accession to the
present Protocol shall be deposited with the Secretary-General
of the OAU.
The Protocol shall come into force thirty days after
fifteen instruments of ratification or accession
have been deposited.
For any State Party ratifying or acceding subsequently,
the present Protocol shall come into force in respect
of that State on the date of the deposit of its
instrument of ratification or accession.
The Secretary-General of the OAU shall inform all
Member States of the entry into force of the present
Protocol.
At the time of the ratification of this Protocol
or any time thereafter, the State shall make a declaration
accepting the competence of the Court to receive
cases under article 5 (3) of this Protocol. The
Court shall not receive any petition under article
5 (3) involving a State Party which has not made
such a declaration.
Declarations made under sub-article (6) above shall
be deposited with the Secretary General, who shall
transmit copies thereof to the State parties.
Article 35
AMENDMENTS
The present Protocol may be amended if a State
Party to the Protocol makes a written request to
that effect to the Secretary-General of the OAU.
The Assembly may adopt, by simple majority, the
draft amendment after all the States Parties to
the present Protocol have been duly informed of
it and the Court has given its opinion on the amendment.
The Court shall also be entitled to propose such
amendments to the present Protocol as it may deem
necessary, through the Secretary-General of the
OAU.
The amendment shall come into force for each State
Party which has accepted it thirty days after the
Secretary-General of the OAU has received notice
of the acceptance.
