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Special Bulletin
 
Encouraging Lawyers’ Associations And Civil Society Organizations
To Participate Actively In National Processes Of Nominating Judges
Of The African Court On Human And Peoples’ Rights (AfCHPR)

The African Union (AU) will elect four new judges to the African Court during the next AU Summit of Heads of State and Government, to be held in Malabo, Equatorial Guinea, on 1 and 2 July 2014.  

We remind Bar Associations, Law Societies and Civil Society Organizations that they have a right, and a duty, to participate in national processes of selecting nominee Judges for the African Court. It is only through such participation that the Member States will procure the most outstanding jurists for possible election into the African Court, in order to further strengthen the Court’s effectiveness and to continue the outstanding work done so far. The law of the African Union (AU) requires that the entire nomination and election process should be free, participatory and transparent.

Below, we explain how you can play your part in achieving this important goal.

Judges at the African Court

The Court comprises of eleven (11) Judges who are nationals of AU Member States. There are currently only two (2) women Judges, one (1) of whom is retiring in 2014.

Status of Judges’ Terms

The Judges whose terms end in 2014 are:

a) Final term (and therefore NOT eligible for re-election):
  1. Justice (Ms). Sophia A.B Akuffo (Ghana) – Current President of the Court
  2. Justice Bernard M. Ngoepe (South Africa) – Current Vice President of the Court
b) Conclusion of 1st term (and therefore ELIGIBLE for re-election):
  1. Justice Sylvain Oré (Côte d'Ivoire)
  2. Justice Kimelabalou Aba (Togo)
Procedure of Nominations:

The procedure for nominating and electing Judges is set out in Articles 11 to 14 of the Protocol establishing the African Court (The Protocol). This is supplemented by the Note Verbale, which the Legal Counsel to the African Union published and circulated, to guide the first elections to the Court (2004), which is reiterated each time there are elections to the Court.

African Union law requires that Judges be elected by secret ballot, by the Assembly of Heads of State and Government. Most important, nominees should be jurists of high moral character and of recognised practical, judicial or academic competence and experience in the field of human and peoples' rights. African Union law also requires that there be equal numbers of male and female Judges, a requirement that has NOT been met to date.

The Office of the Legal Counsel sends out a Note Verbale to State Parties requesting them to send nominations for possible election as Judges. Ordinarily, this Note Verbale is delivered to the Permanent Missions/Embassies of the State Parties in Addis Ababa, Ethiopia, who will then forward it to their respective Ministries of Foreign Affairs. Once the State Parties submit the nominations, the Office of the Legal Counsel vets them to ensure that they meet the minimum legal requirements set out above. All correspondence on the matter between the Office of the Legal Council and Member States is through their Permanent Missions in Addis Ababa. The correspondence is hand delivered.

Criteria/Conditions for submitting nominations:

Only States that have ratified the Protocol can nominate a candidate to be a Judge of the Court. However, they are not limited to nominating candidates from their own countries. Each State Party can nominate a candidate from ANY of the fifty four (54) Member States of the AU.

Of the 54 Member States, only 26 have ratified the Protocol establishing the Court and are therefore entitled to nominate candidates. These are: Algeria, Burkina Faso, Burundi, Cote d’Ivoire, Comoros, Congo, Gabon, Gambia, Ghana, Kenya, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Mauritius, Nigeria, Niger, Rwanda, South Africa, Senegal, Tanzania, Togo, Tunisia and Uganda.

However, at the current time, the other seven (7) serving Judges at the Court come from the following Member States, and therefore candidates from these countries will NOT be considered at this time: Algeria, Burundi, Kenya, Malawi, Nigeria, Senegal and Tanzania,

In principle, candidates can be considered from any other Member State, although, in practice, we have seen a preference for electing candidates from the above 26 States Parties to the Court Protocol.

A State that has ratified the Protocol can nominate up to three candidates. At least two of whom shall be national of that state (Article 12 of the Protocol). The nominations must be submitted to the Office of the Legal Counsel by 1 May 2014.

What you should do?

PALU encourages all its members, institutions and individuals, to robustly engage their governments to hold open, transparent and participatory processes for nominations and selections at the national level.  The appropriate agencies within national governments to engage are: Ministry of Foreign Affairs (or Ministry of African Affairs, where one exists); Ministry of Justice, Legal and/ or Constitutional Affairs); Office of the Attorney General; Office of the Chief Justice; the Parliamentary Committee(s) that are tasked with Legal/ Constitutional Affairs, African Affairs and/ or Foreign Affairs.

Ideally, the following processes should take place: -
  • The appropriate government agency should advertise and/ or publicize the position, to attract the widest possible interest of qualified candidates.
  • All interested candidates should be entitled, in full equality, to apply to be considered. They should apply in writing, enclosing their curricula vitae, copies of certificates, and a Statement of Interest, showing why they are suited for the vacancy.
  • A Recruitment Committee should be set up, with objective guidelines and criteria, to receive and review all Applications, and shortlist the best candidates in an open, transparent and fair manner. In an ideal scenario, the legal profession, civil society and other sectors of society should be represented in the Recruitment Committee.
  • Special consideration should be given to qualified women candidates, in the current nominations and elections, in order to rectify the serious inequality in the Court, that resulted from previous elections.
We urge the legal profession and civil society to undertake national advocacy campaigns to ensure that the above minimum requirements are adhered to, and that the best possible candidates are nominated by the States Parties. These campaigns can be aided by effectively utilizing the print, electronic and social media. You could also seek out their best possible jurists and directly encourage them to consider applying or expressing interest in the coming elections.

Please note that time is of the essence, as the States Parties should send in their nominees by 1st May 2014.  We reiterate our strong position that special consideration should be given to qualified women candidates.

If you have any queries, or need any assistance with your national or regional campaigns, you are welcome to contact the PALU Secretariat at secretariat@lawyerofafrica.org.

Donald Deya

Chief Executive Officer, Pan African Lawyers Union
Chairperson, Centre for Citizens’ Participation on the African Union


Note: the following 28 countries are NOT entitled to nominate candidates as they have NOT ratified the Protocol establishing the African Court: Angola, Benin, Botswana, Cameroon, Central African Republic, Cape Verde, Chad, Djibouti, Democratic Republic of Congo, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Guinea-Bissau, Guinea, Liberia, Madagascar, Namibia, Sahrawi Arab Democratic Republic, Seychelles, Sierra Leone, Somalia, Sao Tome &Principe, Sudan, South Sudan, Swaziland, Zambia and Zimbabwe.
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