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. Protocol on the establishment of the Peace & Security Council of the African Union (AU-PSC), 2002

7. Protocol of the Court of Justice of the African Union, 2003

8. Convention on Preventing & Combating Corruption, 2003

9. Statutes of the Economic, Social and Cultural Council of the African Union (ECOSOCC-AU), 2004

10. Non-Aggression & Common Defence Pact, 2005

11. African Charter on Democracy, Elections & Governance (ACDEG), 2007

12. Protocol on the Statute of the African Court of Justice & Human Rights, 2008

13. Protocol on Relations between the African Union (AU) and the Regional Economic Communities (RECs), 2008

14. Statute of the African Union Commission on International Law (AUCIL), 2009

15. Convention for the Protection & Assistance of Internally Displaced Persons, 2009

16. African Charter on Values & Principles of Public Service & Administration, 2011

African Union (AU) – the NEW Treaties: Malabo, Equatorial Guinea, June 2014

By the Assembly17. 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, 20063. Social Policy Framework for Africa, 20084. 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)– African Human Rights Strategy (AHRS)– The “Ecosystem”– Complementarity and co-operation with the Court

2. (Draft) Policy Framework for Transitional Justice in Africa– 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

3. 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 laws2. Range of institutions

3. (No?) shortage of ‘users’

The process (1) - Antecedent

1. Pre-1981, during the drafting of the African Charter: recommendation for a ‘World Criminal Court’ (obiter dicta?)

2. Pre-1998, during the drafting of the African Court Protocol: recommendation for a Criminal Chamber – not taken up

3. Pre-2006, Eminent Panel of African Jurists on the case of Hissene Habre: recommendation for a Criminal Chamber – not taken up

4. Pre-2008, during the drafting of the “Merger” Court Protocol: recommendation for a Criminal Chamber – not taken up

5. 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

6. April 2009: Report of the AU-EU Expert Panel on Universal Jurisdiction: commended the AU Assembly for “Decision 213”

7. January 2010: AU Assembly directs that a Report and draft Protocol be prepared8. February 2010: AU Commission appoints Pan African Lawyers Union (PALU) as its

Consultant to undertake the above

The process (2) – the current phaseN

oPeriod 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 CourtsNo Year Place Court Instrument

1 1998 OuagadougouBurkina 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-SheikEgypt

African Court of Justice & Human Rights

Protocol on the Statute of the African Court of Justice & Human Rights, 2008

4 2014 MalaboEquatorial 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 Courts2. 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’ provisions4. Expanded array of crimes “of concern to Africans”:

‘enabling crimes’

The Jurisdiction

Jurisdiction Recommendation

Subject-matter jurisd.(Rationae materiae)

14 Crimes

•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;

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:

– 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

– 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. 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

2. Judges/ Commissioners don’t elect themselves. What can lawyers/ civil society do?

3. 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!

4. 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

5. Advocacy is a CONTACT Sport! – Michael Jackson: (Wo)man in the mirror: MAKE that change!

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