Courts for Africa: Considering the Co-Existence of the African Court on Human and Peoples' Rights and the African Court of Justice

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 cooperation, 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.