The future African Court: Progress, Prospects, Challenges – So what are YOU going to do?

1. The future African Court: Progress, Prospects, Challenges – So what are YOU going to do? Presented by Don Deya Chief Executive Officer, PALU

2. RESPECT

3. 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):

4. 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 • Constitutive Act of the African Union, 2000 • (O)AU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 • Convention for the Elimination of Mercenariism in Africa, 1977 • African Charter on Human & People’s Rights, 1981 • Protocol to the African Charter (…) on the Establishment of an African Court on Human & People’s Rights, 1998 • Protocol to the African Charter (…) on the Rights of Women in Africa, 2003 • African Charter on the Rights & Welfare of the Child, 1990

5. AU – some of the Treaties (continued) • Protocol on the establishment of the Peace & Security Council of the African Union (AU-PSC), 2002 • Protocol of the Court of Justice of the African Union, 2003 • Convention on Preventing & Combating Corruption, 2003 • Statutes of the Economic, Social and Cultural Council of the African Union (ECOSOCC-AU), 2004 • Non-Aggression & Common Defence Pact, 2005 • African Charter on Democracy, Elections & Governance (ACDEG), 2007 • Protocol on the Statute of the African Court of Justice & Human Rights, 2008 • Protocol on Relations between the African Union (AU) and the Regional Economic Communities (RECs), 2008 • Statute of the African Union Commission on International Law (AUCIL), 2009 • Convention for the Protection & Assistance of Internally Displaced Persons, 2009 • African Charter on Values & Principles of Public Service & Administration, 2011

6. African Union (AU) – the NEW Treaties: Malabo, Equatorial Guinea, June 2014 By the Assembly • 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) • Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament, 2014 (PAP Protocol) • African Union Convention on Cross-border Cooperation, 2014 (Niamey Convention) • African Charter on the Values ​​and Principles of Decentralization, Local Governance and Local Development, 2014 (Decentralization Convention) • African Union Convention on Security in Cyber-Space and Protection of Personal Data, 2014 (Cyber-Security Convention) • 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 • Rules of Procedure of the (African Union) Specialized Technical Committee (STC) on Justice and Legal Affairs, 2014

7. Other Policy Instruments (1)Over 100 Policy Frameworks, including: - • Post-Conflict Reconstruction and Development Framework, 2006 • Migration Policy Framework for Africa, 2006 • Social Policy Framework for Africa, 2008 • African Mining Vision (AMV) • Common African Defence and Security Policy (CADSP) • Comprehensive Africa Agricultural Development Programme (CAADP) • Framework and Guidelines on Land Policy in Africa, 2009 • Productivity Agenda for Africa, 2010

8. 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

9. The context: 3 things to bear in mind simultaneously • African Governance Architecture (AGA) • African Human Rights Strategy (AHRS) • The “Ecosystem” • Complementarity and co-operation with the Court • (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 • 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

10. An activist’s dream! • Body of laws • Range of institutions • (No?) shortage of ‘users’

11. The process (1) - Antecedent • Pre-1981, during the drafting of the African Charter: recommendation for a ‘World Criminal Court’ (obiter dicta?) • Pre-1998, during the drafting of the African Court Protocol: recommendation for a Criminal Chamber – not taken up • Pre-2006, Eminent Panel of African Jurists on the case of HisseneHabre: recommendation for a Criminal Chamber – not taken up • Pre-2008, during the drafting of the “Merger” Court Protocol: recommendation for a Criminal Chamber – not taken up • 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 • April 2009: Report of the AU-EU Expert Panel on Universal Jurisdiction: commended the AU Assembly for “Decision 213” • January 2010: AU Assembly directs that a Report and draft Protocol be prepared • February 2010: AU Commission appoints Pan African Lawyers Union (PALU) as its Consultant to undertake the above

12. The process (2) – the current phase

13. 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

14. The 4 Courts

15. Provisions • Positive complementarity: national Courts • 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? • ‘Saving’ provisions • Expanded array of crimes “of concern to Africans”: ‘enabling crimes’

16. The Jurisdiction

17. 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?

18. 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!

19. 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)

20. Questions for us all • 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 • Judges/ Commissioners don’t elect themselves.What can lawyers/ civil society do? • 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! • 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 • Advocacy is a CONTACT Sport! • Michael Jackson: (Wo)man in the mirror: MAKE that change!

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