In 1998, the Assembly of Heads of State and Government of the now-defunct Organization of
African Unity (”OAU“), replaced in 2002 by the African Union (”AU“) adopted a Protocol to
the African Charter, which establishes a Court to complement the protective mandate of the Af-
rican Commission and defines the organization, jurisdiction, and functioning of the Court.221 It
came into force only in January 2004 and the Court has not yet been set up, but the system con-
cerning the admissibility condition of ius standi will already be included here. Both the African
Commission and the Court have the jurisdiction to apply the provisions of the African Charter
and any other relevant human rights instruments ratified by the States concerned as relevant law.
The Protocol thus provides that complaints may be brought on the basis of any instrument, includ-
ing international human rights treaties, which have been ratified by the State Party in question.222
The African Commission and the Court will form a two-tier system, similar to the one under the
ACHR. The Court proceedings will be public and the decision will be published, which leads to
a greater collective good character of the decisions compared to the old system due to the imme-
diate publicity of precedents developing IHRL.223 If the Court finds that there has been violation
of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including
the payment of fair compensation or reparation.224 The Court will render legally binding deci-
sions.225 The States Parties are supposed to comply with the judgment within the time stipulated
by the Court and to guarantee its execution.226 Non-compliance will be reported annually by the
Court to the Assembly.227 The Executive Council (former Council of Ministers) of the AU will
assist in monitoring the implementation of the court’s decisions.228
Under Art. 5 of the Protocol the Court may accept communications from the following parties:
The African Commission, the State Party which had lodged a complaint to the Commission, the
State Party against which the complaint has been lodged at the Commission, the State Party
whose citizen is a victim of human rights violation, and African Intergovernmental Organiza-
tions. When a State Party has an interest in a case, it may submit a request to the Court to be
permitted to join. It must be borne in mind that the Protocol only provides for optional jurisdic-
tion with respect to individuals and NGOs. Additionally, the Court may entitle relevant NGOs
with observer status before the African Commission, and individuals to institute cases directly
before it, if the State Party made a declaration accepting the competence of the Court to receive
such cases.229 Nevertheless, even if a respective declaration for individual complaints to the
221 See Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court
on Human and Peoples' Rights, OAU Doc. OAU/LEG/MIN/AFCHPR/PROT.1 rev.2 (1997), entered into
force January 25, 2004 (hereinafter: Protocol).
222 For the Commission: Art. 60 and 61 of the African Charter and for the Court: Art. 3 and 7 of the Protocol.
223 Art. 10 (1) of the Protocol.
224 Art. 27 (1) of the Protocol.
225 Art. 28 (2) and Art. 30 of the Protocol and Viljoen, supra note 138, at 13 as well as Udombana, supra note
211, at 834.
226 Art. 30 of the Protocol.
227 Art. 31 of the Protocol.
228 Art. 29(2) of the Protocol.
229 Art. 5 (3) and Art. 34 (6) of the Protocol: „At the time of the ratification of this Protocol or any time
thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under
article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State
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