AU Assembly should consider human rights implications before adopting the Amending Merged African Court Protocol

frans_viljoen_newAuthor: Frans Viljoen
Director, Centre for Human Rights, University of Pretoria; Professor of Human Rights Law

A radical change to the ever-altering African regional judicial landscape is looming large. Meeting in Addis Ababa in mid May 2012, the African Union (AU) ‘Government Experts and Ministers of Justice/Attorneys General on Legal Matters’ adopted the AU – Final Court Protocol – As adopted by the Ministers 17 May (Amending Merged Court Protocol, Exp/Min/IV/Rev.7, 15 May 2012). This draft will in all likelihood serve before the meeting of the AU Heads of State and Government (AU Assembly), to be held in July, in Malawi. If adopted by the AU Assembly, the Protocol will confer upon the to-be-established African Court of Justice and Human Rights the jurisdiction to convict and sentence individuals for international crimes. This paper aims to highlight some concerns, particularly from a human rights angle, about the Amending Merged Court Protocol, in its current form, and argues that the complex implications arising from the suggested amendments require more deliberation and broad inclusive discussion.

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The African Union Commission on International Law and the Proposed African Institute of International Law: Where do we go from here?

Olabisi AkinkugbeAuthor: Olabisi Delebayo Akinkugbe
PhD candidate at the University of Ottawa, Canada

The author critically reflects on the African Union Commission on International Law (AUCIL) statute of 2009 particularly in relation to its mandate to advance the teaching and development of international law in Africa; examines its relationship with proposed African Union Institute of International Law (AIIL) in Arusha, Tanzania; and calls for an amendment of the AUCIL Statute in order to enhance the achievement of its goals and clarification of some vague areas.

Historically, the discourse in relation to the role of Africa in the development of international law, especially as a contributor or shaper, can be argued was popularised by the works of the late Taslim Olawale Elias who has been criticised in turn by some scholars for his glorification of Africa. The view that Africa contributes and shapes the development of international law arguably inspires the provisions of Article 6(1) of the AUCIL Statute (Codification of International Law) which mandates the AUCIL to codify such aspects of the rules of international law where “there has been extensive State practice, precedent and doctrine in the African continent.” Following suggestions by African international law scholars such as Muna Ndulo for curriculum revisions to include directed teaching on various subjects in relation to Africa and international law, it is encouraging to see that the African Union (AU) has taken a practical step in broaching the question of partnership in the teaching and studying of international law as it concerns the AU with universities and international institutes in Africa under the auspices of the AUCIL. It is hoped that the current effort which has witnessed a worrisome delay in taking off after three years of the adoption of the AUCIL establishing statute is more than a mere rhetoric.

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Leading the way for other African Judiciaries: A Kenyan Case Study

Ivy KiharaAuthor: Ivy Kihara
Operations Manager, InformAction; Advocate of the High Court of Kenya

In November 2011 a Kenyan High Court Judge made history. Justice Nicholas Ombija made a controversial ruling issuing an arrest warrant for President Omar Al- Bashir of Sudan in the event he visits the Republic of Kenya. The arrest warrant was held as valid pending a full Appeal on Tuesday 20 December 2011 by the Kenya Court of Appeal after the Attorney General, Githu Muigai, rushed to court claiming that Judge Ombija’s ruling was creating ‘international anxiety in International circles’. The Attorney General of Kenya appealed the ruling on the arrest warrant and also applied for a stay on the arrest. The stay was denied pending hearing of the appeal. ICJ-Kenya has raised a preliminary objection citing that the Attorney General of Kenya under the 2010 constitution is not the competent representative of the Kenya Government in criminal cases like the All Bashir case. His decision upheld, Justice Ombija issued a provisional arrest warrant for President Bashir on Monday 23 January 2012. It was served on the Minister of Internal Security, Geroge Saitoti, ordering him to arrest President Bashir and hand him over to the ICC if he steps on Kenyan soil.

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