ACJ Date Operational: Protocol not in force

ACJ Seat: To be determined

States Subject to ACJ Jurisdiction: None

Number of Cases Received by the Court: 0

The African Court of Justice (ACJ) is the sole judicial organ specified in the original Constitutive Act of the African Union (the “Act”), which was adopted by the Organization of African Unity in 1999. The Act provided for the reconstitution of the Organization of African Unity (OAU) from an organization for political cooperation, with an add-on associated treaty on economic integration, into a unified entity with the goal of creating a regional group similar to the European Union. Along with this new goal came the renewal of the inclusion in the Treaty Establishing an African Economic Community (AEC Treaty) of the first general-purpose judicial organ for the organization, the ACJ. The protocol required under the AEC Treaty, the Protocol of the Court of Justice of the African Union, was adopted by the organization on July 3, 2003. The Protocol will come into force after its ratification by fifteen (15) member states of the African Union.

The Protocol provides broad power to the Court, giving it jurisdiction not only over matters under the Act, other AU treaties and instruments promulgated thereunder, but also over any question of international law. The ACJ can be seized of a matter by the Member States, the Commission, the Parliament and the Assembly, as well as other third parties given permission to do so by the Assembly. The Court has the power to provide advisory opinions on any legal question posed to it by the Assembly, the Parliament, the Executive Council and any other organ of the AU that may be authorized to do so by the Assembly. However, the Protocol limits the potential power of the Court by not allowing individuals access to it either directly or, like the European Union’s Article 177 procedure, indirectly through their national courts. Without an Article 177-like procedure, the ACJ will have greater difficulty asserting itself as the sole, or even superior, arbiter of the interpretation of African Union law as other courts will have to defer to it only if it has already been directly posed a particular question of AU law. Interpretation of AU law will not be automatically controlled by the ACJ. Accordingly, the Court will be less likely to play the role of an engine for legal integration that commentators ascribe to the European Court of Justice. The Court is further limited in that only those Member States of the African Union which have ratified the Protocol will be subject to its jurisdiction.

While the Court of Justice has yet to come into existence, its eventual establishment has delayed the operationalization of the African Court on Human and Peoples’ Rights (ACHPR). The Protocol establishing the ACHPR came into force in January 2004. However, its operationalization was briefly delayed by a decision to merge it into the ACJ in order to save funds and to avoid problems of overlapping jurisdictions. In July 2005, the AU determined that a single instrument should be created to merge the two courts. Algerian Foreign Minister and former President of the International Court of Justice, Mohamed Bedjaoui, has prepared a draft merger document which is now under consideration by the Council of Ministers. Once, formally merged with the ACHPR, the Court will be located in an Eastern region Member State of the AU. Mauritius has offered to host the Court.