The African Union (AU) in an early 2015 historical summit with minsters of AU countries reechoed the desire for the creation of an African Court of Justice and Human Rights (African Court of Justice). This was after a lot of contestation with respect to the bias role the International Criminal Court (ICC) has played in judging Africans leaders especially. According to a report by Voice of Nigeria dated February, 03, 2015, during the above mentioned AU summit in Addis Ababa, President Uhuru Kenyatta of Kenya, who was one of the first Head of State to sign the Malabo protocol establishing the new African Court of Justice, was of the view that the proposed African Court of Justice was here to stay and announced that Kenya was going to contribute 1 million U.S. dollars for the African Court of Justice to go operational. The creation of the African Court of Justice brings to mind several concerns. Now that Africa is composed of several states with varying judicial practices, what legal system will the African Court of Justice opt for in her judgments? How are the judges for this court going to be selected and will these judges be independent and impartial from the whims and caprices especially of African Head of States? Are all member states going to support the running of this court financially or will the court depend on foreign aid as several regional bodies on the continent?
11 African states including Kenya have already signed the protocol on the creation of the African Court of Justice to look into criminal cases referred to the ICC. This revelation was made known to Voice of Nigeria during an interview in Nairobi by Nigerian Cabinet Secretary for Foreign Affairs, Amina Mohamed. In actual fact, 14 states are supposed to sign the above mentioned protocol for the African Court of Justice to go operational. Kenya has sworn to lobby more African states to sign this protocol on the creation of the African Court of Justice. According to the above mentioned report by Voice of Nigeria, Kenyan President purports that the establishment of the African Court of Justice will put in place a wider African transitional justice police framework.
There is no gainsaying that the African Court of Justice will have to grapple with the application of justice which flows from several legal systems especially civil law and common law. Africa is composed of states with varying legal systems when it comes to justice especially in adjudicating over crimes against humanity.
Experience has shown that the judiciary in Africa is still not adequately independent. Judges are still appointed by Head of States. Even at the regional level judges especially at the African Court on Human and Peoples’ Rights are endorsed by their Head of States. This in actual fact remains an aberration to the independence and Impartiality of decisions on the continent and obviously with respect to the envisaged African Court of Justice. Some analysts argue that the African Court of Justice may be a medium for the impunity of African Head of States and statesmen. These analysts also argue that because of the inadequate independence and impartiality of judges at the African Court of Justice, African leaders will continue to unconstitutionally modify state Constitutions so as to remain in power.
The continent already boasts of an African Commission on Human and Peoples’ Rights. The continent also boasts of an African Court on Human and Peoples’ Rights amongst several regional judicial institutions. There is a tendency that the creation of the African Court of Justice will emanate to the duplicity of tasks with respect to judging crimes against humanity.
African leaders have not been able to adequately finance the AU and her institutions. The AU for instance depends greatly on foreign aid which makes the operation of affairs of this institution dependent on the West. Although Kenya has pledged to finance the African Court of Justice with 1 million US$, this institution will in the long run also depend on foreign assistance just like the AU. Decisions of this judicial body will thus be wanting.
There is equally a tendency for the continent to be isolated in an époque of globalisation. The creation of the African Court of Justice should not be a leeway for the continent not to partake in world affairs especially doing business with the West.
If African Head of States want just a Court of Justice which mirrors domestic courts which are currently mired with inadequate independence and impartiality, then this new judicial institution would just be a way of escaping from international justice and will defeat the purpose of its creation. The African Court of Justice needs to be adequately independent and impartial. This judicial institution needs to be financially independent. This judicial institution needs to also be able to judge African Head of States without fear or favour especially those who continue to unconstitutionally manipulate state constitutions.