PROTOCOL OF THE COURT OF JUSTICE

PROTOCOL OF THE COURT OF JUSTICE
OF THE AFRICAN UNION


The Member States of the African Union:

Considering that the Constitutive Act established the Court of
Justice of the African Union;

Firmly convinced that the attainment of the objectives of the
African Union requires the establishment of the Court of Justice of
the African Union;


HAVE AGREED AS FOLLOWS:


CHAPTER I

Article 1
DEFINITIONS

In this Protocol unless otherwise specifically stated:

“Act” means the Constitutive Act of the Union;

“Assembly” means the Assembly of Heads of State and Government
of the Union;

“Commission” means the Commission of the Union;

“Court” means the Court of Justice of the Union;

“ECOSOCC” means the Economic, Social and Cultural Council of
the Union;

“Executive Council” means the Executive Council of Ministers of
the Union;

“Financial Institutions” means the Financial Institutions
established by the Constitutive Act;

“Judge” means a judge of the Court;


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“Member State” means a Member State of the Union;
“Parliament” means the Pan-African Parliament of the Union;

“Peace and Security Council” means the Peace and Security
Council of the Union;

“President” means the President of the Court;

“Protocol” means this Protocol defining the composition, powers
and functions of the Court;

“Regions” means the geographical regions into which the continent
of Africa, at any time, is divided pursuant to a decision of the
Assembly;

“Rules of Court” means the Rules of Court under Article 58;

“Registrar” means the Registrar of the Court;

“States Parties” means the Member States that have ratified or
acceded to this Protocol;

“Union” means the African Union established by the Act;

“Vice President” means the Vice President of the Court;


Article 2
ESTABLISHMENT OF THE COURT

1. The Court established by the Act shall function in accordance
with the provisions of the Act and this Protocol.

2. The Court shall be the principal judicial organ of the Union.


Article 3
COMPOSITION

1. The Court shall consist of eleven (11) Judges who are nationals of
States Parties.



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2. The Assembly may, when it deems it necessary, review the number
of Judges.

3. The Judges shall be assisted by the necessary staff for the smooth
functioning of the Court.

4. No two (2) Judges shall be nationals of the same State Party.

5. In the Court as a whole, the representation of the principal legal
traditions of Africa shall be assured.

6. Each region shall be represented by no less than two (2) Judges.

CHAPTER II

Article 4
QUALIFICATIONS

The Court shall be composed of impartial and independent Judges
elected from among persons of high moral character, who possess the
necessary qualifications required in their respective countries for
appointment to the highest judicial offices, or are jurists of recognized
competence in international law.

Article 5
SUBMISSION OF CANDIDATES

1. Upon entry into force of this Protocol, the Chairperson of the
Commission shall request each State Party to submit in writing within
ninety (90) days of such a request, its nomination for the office of a
Judge of the Court.

2. Each State Party may nominate only one (1) candidate having the
qualifications prescribed in Article 4 of this Protocol.

3. Due consideration shall be given to adequate gender
representation in the nomination process.

Article 6
LIST OF CANDIDATES

The Chairperson of the Commission shall prepare a list of the
candidates nominated, in alphabetical order and transmit it to the
Member States at least thirty (30) days prior to the ordinary session of


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Member States at least thirty (30) days prior to the ordinary session of
the Assembly at which the Judges are to be elected.

Article 7
ELECTION OF JUDGES OF THE COURT

1. The Assembly shall elect the Judges by secret ballot and by two-
thirds majority of the Member States eligible to vote.

2. Where one or more candidates fail to obtain the two-thirds
majority required for an election, the balloting shall continue until the
required number of Judges has been elected. However, the next
ballots shall be restricted to the candidates who obtain the greatest
number of votes.

3. In the election of the Judges, the Assembly shall ensure that there
is equal gender representation.


Article 8
TENURE OF OFFICE

1. The Judges shall be elected for a period of six (6) years and may be
re-elected only once. The term of five (5) Judges elected at the first
election shall expire at the end of four (4) years and the other Judges
shall serve the full term.


2. The Judges whose terms are to expire at the end of the initial
period of four (4) years shall be chosen by lot to be drawn by the
Chairperson of the Assembly immediately after the first election has
been completed.

3. A Judge elected to replace another Judge whose term of office has
not expired shall be from the same region and shall hold office for the
remainder of the predecessor's term.


Article 9
OATH OF OFFICE

1. Before taking up his or her duties each Judge shall in open court
take the following oath:


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“I ……………………. Do solemnly swear (or affirm or
declare) that I shall faithfully exercise the duties of my
office as Judge of the Court of Justice of the African Union
impartially and conscientiously, without fear or favour,
affection or illwill and that I will preserve the secrecy of the
deliberations of the Court.”

2. The oath of office shall be administered by the Chairperson of the
Assembly or his or her duly authorized representative.


Article 10
PRESIDENCY OF THE COURT

1. The Court shall elect its President and Vice-President for a period
of three (3) years. The President and Vice-President may be re-elected
once.

2. The President shall reside at the seat of the Court.

3. The modalities for elections of the President and the Vice-President
and their functions shall be set out in the Rules of Court.


Article 11
RESIGNATION, SUSPENSION AND REMOVAL FROM OFFICE

1. A Judge may resign his or her position in writing addressed to the
President for transmission to the Chairperson of the Assembly.

2. A Judge shall not be suspended or removed from office save
where, on the unanimous recommendation of the other Judges, he or
she no longer fulfils the requisite conditions to be a Judge.

3. The President shall communicate the recommendation for the
suspension or removal of a judge to the Chairperson of the Assembly
and the Chairperson of the Commission.

4. Such a recommendation of the Court shall become final upon its
adoption by the Assembly.



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Article 12
VACANCIES

1. A vacancy shall arise in the Court under the following
circumstances:

(a) death;
(b) resignation;
(c) removal from office.

2. In the case of death or resignation of a Judge, the President shall
immediately inform the Chairperson of the Assembly in writing, who
shall declare the seat vacant.

3. The same procedure and consideration for the election of a Judge
shall also be followed in filling vacancies.

Article 13
INDEPENDENCE

1. The independence of the Judges shall be fully ensured in
accordance with international law.

2. No Judge may participate in the decision of any case in which he
or she has previously taken part as agent, counsel or advocate for one
of the parties, or as a member of a national or international court, or
commission of inquiry, or in any other capacity.

3. Any doubt on this point shall be settled by decision of the Court.

Article 14
PRIVILEGES AND IMMUNITIES

1. The Judges shall enjoy, from the time of their election and
throughout their term of office, the full privileges and immunities
extended to diplomatic agents in accordance with international law.

2. The Judges shall be immune from legal proceedings for any act or
omission committed in the discharge of their judicial functions.

3. The Judges shall continue, after they have ceased to hold office, to
enjoy immunity in respect of acts performed by them when engaged in
their official capacity.


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Article 15
INCOMPATIBILITY

1. The position of a Judge shall be incompatible with any activity that
might interfere with the independence or impartiality of such a judge
or the demands of the office, as determined in the Rules of Court.

2. Any doubt on this point shall be settled by the Court.


Article 16
QUORUM

1. The full Court shall sit except where it is expressly provided
otherwise in this Protocol;

2. Except when sitting in Chamber, the Court shall only examine
cases brought before it, if it has a quorum of at least seven (7) Judges;

3. The quorum for a Special Chamber shall be set out in the Rules of
Court.


Article 17
REMUNERATION OF JUDGES

1. A Judge shall receive an annual allowance and, for each day on
which he or she exercises his or her functions, a special allowance,
provided that in any year the total sum payable to any Judge as
special allowance shall not exceed the amount of the annual
allowance.

2. The President shall receive an additional special annual allowance.

3. The Vice-President shall receive an additional special allowance for
each day on which he or she acts as President.

4. The allowances shall be determined from time to time by the
Assembly upon the recommendation of the Executive Council, taking
into account the workload of the Court. They may not be decreased
during the term of office.



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5. Regulations adopted by the Assembly upon the recommendation of
the Executive Council shall determine the conditions under which
retirement pensions shall be given to the Judges and the terms and
conditions under which their travel expenses shall be paid or
refunded.

6. The allowances shall be free of all taxation.

Article 18
ELIGIBILITY TO SUBMIT CASES

1. The following are entitled to submit cases to the Court:

(a) States Parties to this Protocol;
(b) The Assembly, the Parliament and other organs of the Union
authorised by the Assembly;
(c) The Commission or a member of staff of the Commission in a
dispute between them within the limits and under the
conditions laid down in the Staff Rules and Regulations of
the Union;
(d) Third Parties under conditions to be determined by the
Assembly and with the consent of the State Party concerned.

2. The conditions under which the Court shall be open to third
parties shall, subject to the special provisions contained in treaties in
force, be laid down by the Assembly, but in no case shall such
conditions place the parties in a position of inequality before the Court.

3. The States which are not members of the Union shall not be
allowed to submit cases to the Court. The Court shall have no
jurisdiction to deal with a dispute involving a Member State that has
not ratified this Protocol.

Article 19
COMPETENCE/JURISDICTION

1. The Court shall have jurisdiction over all disputes and
applications referred to it in accordance with the Act and this Protocol
which relate to:
(a) the interpretation and application of the Act;
(b) the interpretation, application or validity of Union treaties
and all subsidiary legal instruments adopted within the
framework of the Union;


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(c) any question of international law;
(d) all acts, decisions, regulations and directives of the organs
of the Union;
(e) all matters specifically provided for in any other agreements
that States Parties may conclude among themselves or with
the Union and which confer jurisdiction on the Court;
(f) the existence of any fact which, if established, would
constitute a breach of an obligation owed to a State Party or
to the Union;
(g) the nature or extent of the reparation to be made for the
breach of an obligation.

2. The Assembly may confer on the Court power to assume
jurisdiction over any dispute other than those referred to in this
Article.

CHAPTER III

Article 20
SOURCES OF LAW

1. The Court, whose function is to decide in accordance with
international law such disputes, as are submitted to it, shall have
regard to:

(a) The Act;
(b) International treaties whether general or particular,
establishing rules expressly recognized by the contesting
states;
(c) International custom, as evidence of a general practice
accepted as law;
(d) The general principles of law recognized universally or by
African States;
(e) Subject to Article 37 of this Protocol, judicial decisions and
the writings of the most highly qualified publicists of various
nations as well as the regulations, directives and decisions of
the Union as subsidiary means for the determination of the
rules of law.

2. This provision shall not prejudice the power of the Court to decide
a case ex aequo et bono, if the parties, agree thereto.



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CHAPTER IV

Article 21
SUBMISSION OF A DISPUTE

1. Disputes shall be submitted to the Court by a written application
to the Registrar. The subject of the dispute, the applicable law and
basis of the jurisdiction shall be indicated.

2. The Registrar shall forthwith give notice of the application to all
concerned parties.

3. The Registrar shall also notify all Member States, the Chairperson
of the Commission and any third parties entitled to appear before the
Court.

Article 22
PROVISIONAL MEASURES

1. The Court shall have the power, on its own motion or on
application by the parties, to indicate, if it considers that
circumstances so require any provisional measures which ought to be
taken to preserve the respective rights of the parties.

2. Pending the final decision, notice of the provisional measures shall
forthwith be given to the parties and to the Chairperson of the
Commission.

Article 23
REPRESENTATION OF PARTIES

1. The parties may be represented before the Court by agents.

2. An agent or party may have the assistance of counsel or advocate
before the Court.

3. The organs of the Union, where relevant, shall be represented by
the Chairperson of the Commission or his or her representative.

4. The agents, counsel and advocates of the parties before the Court
shall enjoy the privileges and immunities necessary to the independent
exercise of their duties.


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Article 24
PROCEDURE BEFORE THE COURT

1. The procedure before the Court shall consist of two parts: written
and oral.

2. The written procedure shall consist of the communications to the
Court, the parties and the institutions of the Union whose decisions
are in dispute, of applications, statements of the case, defences and
observations and of replies if any, as well as all papers and documents
in support, or of certified copies thereof.

3. The communications shall be made through the Registrar, in the
order and time fixed by the Court either in the Rules or the case.

4. A certified copy of every document produced by one party shall be
communicated to the other party.

5. The oral proceedings shall, if necessary, consist of hearing by the
Court of witnesses, experts, agents, counsels and advocates.


Article 25
SERVICE OF NOTICE

1. For the service of all notices upon persons other than parties,
agents, counsel and advocates, the Court shall apply direct to the
government of the State upon whose territory the notice has to be
served.

2. The same provision shall apply whenever steps are to be taken to
procure evidence locally in the territory of the State concerned.


Article 26
PUBLIC HEARING

The hearing in Court shall be public, unless the Court, on its own
motion or upon application by the parties, decides that the public not
be admitted.




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Article 27
RECORD OF PROCEEDINGS

1. A record of proceedings shall be made at each hearing and shall be
signed by the presiding Judge and the Registrar of the session.

2. Such a record shall be kept by the Registrar and shall be the
authentic record of the case.

Article 28
REGULATION OF PROCEEDINGS

1. The Court shall have the power to regulate its own proceedings. It
shall have the power to make orders for the conduct of the case before
it.

2. It shall decide the form and time in which each party must
conclude its arguments, and make all arrangements connected with
the taking of evidence.

Article 29
PRODUCTION OF DOCUMENTS

The Court may, before the hearing begins, call upon the agents to
produce any relevant document or to supply any relevant explanation.
Formal note shall be taken of any refusal to produce documents or
supply an explanation requested by it.

Article 30
ENQUIRIES

The Court may, at any time, entrust any individual, body, bureau,
commission, or other organisation that it may select, and accepted by
the parties to the dispute, with the task of carrying out an enquiry or
giving an expert opinion.

Article 31
REFUSAL OF EVIDENCE

After the Court has received the proofs and evidence within the time
specified for the purpose, it may, unless it decides that the interests of
justice so require, refuse to accept any further oral or written evidence
that any party may desire to present.


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Article 32
DEFAULT JUDGMENTS

1. Whenever one of the parties does not appear before the Court, or
fails to defend the case against it, the other party may call upon the
Court to give its judgment.

2. The Court must before doing so, satisfy itself, not only that it has
jurisdiction in accordance with Article 19, but also that the claim is
well founded in fact and in law and that the other party had due
notice.

3. An objection by the party concerned may be lodged against the
judgment within ninety (90) days of it being notified of the default
judgment. The objection shall not have the effect of staying the
enforcement of the judgment by default


Article 33
CONSIDERATION OF THE JUDGMENT

1. When, subject to the control of the Court, the agent, counsel and
advocates have completed their submissions of the case, the President
shall declare the hearing closed.

2. The Court shall adjourn to consider its judgment.

3. The deliberations of the Court shall take place in private and shall
remain secret at all times.


Article 34
MAJORITY NECESSARY FOR DECISION

1. All questions shall be decided by a majority of the Judges present.

2. In the event of equality of votes, the presiding Judge shall have a
casting vote.






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Article 35
JUDGMENT

1. The judgment shall state the reasons on which it is based.

2. The judgment shall state the names of Judges who have taken part
in the decision.

3. The judgment shall be signed by all the Judges and certified by the
President and the Registrar. It shall be read in open session, due
notice having been given to the agents.

4. Subject to Article 32 and 41 of this Protocol, the judgment shall be
final.

Article 36
SEPARATE OR DISSENTING OPINION

If the judgment does not represent in whole or in part the unanimous
opinion of the Judges, any Judge shall be entitled to deliver a separate
or dissenting opinion.


Article 37
BINDING FORCE OF JUDGMENTS

The judgments of the Court shall be binding on the parties and in
respect of that particular case.


Article 38
DECISIONS ON INTERPRETATION AND APPLICATION OF THE ACT

1. Decisions of the Court on the interpretation and application of the
Act shall be binding on Member States and organs of the Union
notwithstanding the provisions of Article 37 of this Protocol.

2. Whenever questions of interpretation of the Act arise in a case in
which States other than those concerned have expressed an interest,
the Registrar shall notify all such States and organs of the Union
forthwith.




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3. Every Member State and organ of the Union so notified has the
right to intervene in the proceedings.

4. Any decision taken in application of Articles 38 and 39 of this
Protocol shall be by a qualified majority of at least two (2) votes and in
the presence of at least nine (9) Judges.


Article 39
INTERPRETATION OF OTHER TREATIES

1. Whenever the question of interpretation of a treaty arises in a case
in which States other than those concerned have expressed an
interest, the Registrar shall notify all such States and organs of the
Union forthwith.

2. Every State Party and organ of the Union so notified has the right
to intervene in the proceedings and the interpretation given by the
judgment will be equally binding upon it.

Article 40
INTERPRETATION OF A JUDGEMENT

In the event of any dispute as to the meaning or scope of the
judgment, the Court shall construe it upon the request of any of the
parties.

Article 41
REVISION

1. An application for revision of a judgment may be made only when
it is based upon discovery of a new fact of such nature as to be a
decisive factor, which fact was, when the judgment was given,
unknown to the Court and also to the party claiming revision,
provided that such ignorance was not due to negligence.

2. The proceedings for revision shall be opened by a ruling of the
Court expressly recording the existence of the new fact, recognizing
that it has such a character as to lay the case open to revision, and
declaring the revision admissible on this ground.

3. The Court may require prior compliance with the terms of the
judgment before it admits proceedings in revision.


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4. The application for revision shall be made within six (6) months of
the discovery of the new fact.

5. No application may be made after the lapse of ten (10) years from
the date of the judgment.

Article 42
INTERVENTION

1. Any Member State that has an interest of a legal nature, which
may be affected by the decision in the case, may submit a request to
the Court to be permitted to intervene.

2. The Court shall decide upon the request.

Article 43
COSTS

Unless otherwise decided by the Court, each party shall bear its own
costs.

Article 44
ADVISORY OPINION

1. The Court may give an advisory opinion on any legal question at
the request of the Assembly, the Parliament, the Executive Council,
the Peace and Security Council, the ECOSOCC, any of the Financial
Institutions, a Regional Economic Community or such other organs of
the Union as may be authorized by the Assembly.

2. A request for an advisory opinion under paragraph 1 of this Article
shall be in writing and shall contain an exact statement of the question
upon which the opinion is required and shall be accompanied by all
relevant documents.
CHAPTER V

Article 45
PROCEDURE FOR AMENDMENTS

1. This Protocol may be amended if a State Party makes a written
request to that effect to the Chairperson of the Assembly.


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2. Proposals for amendment shall be submitted to the Chairperson of
the Commission who shall transmit same to Member States within
thirty (30) days of receipt thereof.

3. The Assembly may adopt by a simple majority, the draft
amendment after the Court has given its opinion on the amendment.

Article 46
POWER OF THE COURT TO PROPOSE AMENDMENTS

The Court shall have the power to propose such amendments to this
Protocol as it may deem necessary to the Assembly through written
communication to the Chairperson of the Commission for
consideration in conformity with Article 45 of this Protocol.

CHAPTER VI

Article 47
SEAT AND SEAL OF THE COURT

1. The seat of the Court shall be determined by the Assembly from
among States Parties. However, the Court may sit in any other
Member State if circumstances warrant and with the consent of the
Member State concerned. The seat of the Court may be changed by the
Assembly after due consultations with the Court.

2. The Court shall have a seal bearing the inscription “The Court of
Justice of the African Union”.


CHAPTER VII

Article 48
APPOINTMENT OF REGISTRAR

1. The Court shall appoint the Registrar and Deputy Registrar(s) from
amongst candidates proposed by the Judges of the Court, as it
considers necessary, in accordance with the Rules of Court.

2. The Registrar and Deputy Registrar(s) shall be elected for a term of
four (4) years. They may be re-appointed once. They shall reside at
the seat of the Court.


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3. The salary and conditions of service of the Registrar and Deputy
Registrar(s) shall be determined by the Assembly upon
recommendation of the Court through the Executive Council.

Article 49
APPOINTMENT AND TERMS OF SERVICE OF OTHER STAFF

1. The Court shall employ such staff as may be required to enable the
Court to perform its functions and who shall hold office in the service
of the Court.

2. The salary and other allowances of the other staff of the Court shall
be determined by the Assembly upon the recommendation of the Court
through the Executive Council.
Article 50
OFFICIAL LANGUAGES OF THE COURT

The official and working languages of the Court shall be those of the
Union.


CHAPTER VIII

Article 51
EXECUTION OF JUDGMENT

The State Parties shall comply with the judgment in any dispute to
which they are parties within the time stipulated by the Court and
shall guarantee its execution.

Article 52
NON-COMPLIANCE WITH JUDGMENT

1. Where a party has failed to comply with a judgment, the Court
may, upon application by either party, refer the matter to the
Assembly, which may decide upon measures to be taken to give effect
to the judgment.

2. The Assembly may impose sanctions under paragraph 2 of Article
23 of the Act.




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Article 53
REPORT TO THE ASSEMBLY

The Court shall submit to each ordinary session of the Assembly, a
report on its work during the previous year. The report shall specify, in
particular, the cases in which a State has not complied with the
Court’s judgment.


CHAPTER IX

Article 54
BUDGET

1. The Court shall elaborate its draft annual budget and shall submit
it to the Assembly through the Executive Council.

2. The budget of the Court shall be borne by the Member States.

Article 55
SUMMARY PROCEDURE

With a view to the speedy dispatch of business, the Court shall form
annually a chamber composed of five (5) Judges, which, at the request
of the parties, may hear and determine cases by summary procedure in
accordance with the Rules of Court. In addition, two (2) Judges shall
be selected from among themselves for the purpose of replacing Judges
who find it impossible to sit.

Article 56
SPECIAL CHAMBERS

The Court may from time to time form one or more chambers,
composed of three (3) or more Judges as the Court may determine, for
dealing with particular categories of cases.

Article 57
JUDGMENT GIVEN BY A CHAMBER

A judgment given by any of the chambers provided for in Articles 55
and 56 of this Protocol shall be considered as rendered by the Court.




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CHAPTER X

Article 58
RULES OF COURT

The Court shall frame rules for carrying out its functions and generally
for giving effect to this Protocol. In particular, it shall lay down rules of
procedure in conformity with this Protocol.

Article 59
SIGNATURE, RATIFICATION AND ACCESSION

1. This Protocol shall be open to signature, ratification and accession
by Member States in accordance with their respective constitutional
procedures.

2. The instruments of ratification shall be deposited with the
Chairperson of the Commission.

3. Any Member State acceding to this Protocol after its entry into force
shall deposit the instrument of accession with the Chairperson of the
Commission.

Article 60
ENTRY INTO FORCE

This Protocol shall enter into force thirty (30) days after the deposit of
the instruments of ratification by fifteen (15) Member States.


Adopted by the 2nd Ordinary Session
of the Assembly of the Union

11 July 2003