African Court of Justice
In accordance with Article 4 of the Constitutive Act, which grants the African people participatory power in the African Union, AfricanConstitution.Org is advocating making the African Court of Justice a full-fledged judicial branch.
Under the proposal, the African Court of Justice will interpret AU law and ensure it is applied uniformly in all AU states.
In addition to settling legal disputes between AU states and AU institutions, the Court will be Africa's supreme tribunal for the prosecution of crimes against humanity, war crimes, genocide and other serious crimes AU states are unable or unwilling to prosecute.
Individuals, corporations and organisations can also bring cases before the Court if they feel their rights have been infringed by an AU institution.
It is proposed the African Court of Justice have one judge per AU state. Candidates for judgeships of the Court will be vetted by the African Parliament and the judges will be subject to impeachment, removal from the bench and prosecution.
The Court will be assisted by twelve outstanding jurists vetted and appointed by the Parliament. Their function will be to give legal opinions on cases before the Court and which opinions they must provide publicly and impartially.
Each judge and jurist is appointed for a term of five years, which may be renewed once by the Parliament upon its review of every judge's and jurist's performance. The AU states will submit to the African Parliament judicial candidates duly vetted by their legislatures for final vetting and appointment to the Court.
To cope with case backlog in the African Court docket and to offer the African people world-class judicial service, a general chamber will deal with cases brought forward by private individuals, corporations and organisations and cases relating to competition law.
In disputes between the African Union and its employees, the AU Civil Service Chamber will be established as a division of the Court to hear such cases involving the AU and its civil servants.
The jurisdiction of the African Court of Justice will extend to the following types of cases:
i) To rule on disputes brought before the African Court of Justice, the most common types of cases the Court will hear are:
ii) To hear and deliver verdicts on the following types of criminal cases:
1) Preliminary ruling procedure
AU state courts will be responsible for ensuring AU law is properly applied in those states. To prevent the risk of various state jurisdictions interpreting AU law differently, a preliminary ruling procedure is recommended.
When a state court is in doubt about the interpretation or validity of an AU law, it will ask the African Court of Justice for direction, which advice is called a preliminary ruling.
2) Proceedings for failure to fulfil an obligation
If the African Commission believes an AU state is non-compliant with its AU law obligations, the Commission can start a proceeding to enforce compliance or impose sanctions. Such a proceeding may also be initiated by another AU state.
Upon the submission of a petition, the Court investigates the allegation and makes a judgment. If a state is found to be in violation of AU law, it must rectify and comply forthwith. In which event the Court finds a state has not complied with its ruling, a financial penalty applies.
3. Actions for annulment
When an AU state, the African Council, the African Commission or the African Parliament believes an AU law is illegal, it asks the Court to annul it.
Actions for annulment can also be used by private citizens who want the Court to cancel a particular law because it directly and adversely affects them as individuals.
If the Court finds the law in question was not correctly adopted or is not correctly based on the AU constitution and treaties, it declares the law null and void.
4) Actions for failure to act
Under the Constitutive Act and AU treaties, the African Parliament, the African Council, the African Commission and the African Court of Justice must comply with the provisions thereof. If they do not, AU states, other AU institutions and individual African citizens, corporations and organizations lodge a formal complaint with the Court so as to have this failure to act recorded and brought to official attention.
5) Direct actions
Any person or company who has suffered damage as a result of the action or inaction of the AU or its staff can bring an action seeking compensation before the General Chamber.
How cases are heard
In the African Court of Justice, a judge and a jurist are assigned to each case that comes before the Court.
Cases submitted to the Court will be processed in two stages: a written stage and an oral stage.
1) Written stage
All the parties involved submit a written statement to the judge presiding over the case. The judge then writes a summary of these statements and the case's legal background.
2) Oral stage
In stage two, a public hearing is held. Depending on how complex the case is, it is heard before a panel of up to twelve judges or before the whole Court. At the hearing, lawyers from both sides put their case to the judge or judges and the jurist, with the judge or judges and the jurist questioning the lawyers as necessary.
After the lawyers rest their cases, the jurist gives the judge or judges his or her opinion. Following the opinion, the Court goes into closed session, where the judges discuss the case together. When they reach a verdict, they deliver their judgement in open court.
Jurists are only required to give their opinion on a case when the Court believes the particular case raises a new point of law. The Court is not bound to follow a jurist's opinion.
Court judgements are majority decisions and must read out at public hearings. Pictures of hearings, jurist opinions and rulings shall be televised via satellite and other electronic media in all AU states.
In the General Chamber, the procedure will be similar except that no opinion will be given by a jurist.