Does the African Court have an appeals infrastructure?

The Malabo Protocol establishes a court with a tri-partite structure.  Although officially a single court, the court will be divided into three autonomous sections: (1) a General Affairs Section, (2) a Human and Peoples’ Rights Section, and (3) an International Criminal Law Section. The International Criminal Law Section is further divided into three chambers: (1) a Pre-Trial Chamber, (2) a Trial Chamber, and (3) an Appellate Chamber.  This is the only section of the Court with an Appellate Chamber.

Article 3 of the Malabo Protocol provides that the African Court shall have both an original and appellate jurisdiction. The provision creates three types of appeals. First, certain criminal decisions –such as decisions based on errors or decisions on the guilt of a defendant – may be appealed to the International Criminal Law Section’s Appellate Chamber.  Second, the African Court may hear appeals by staff members of the African Union regarding employment disputes.  Since such disputes concern neither crimes nor human rights, they will be assigned to the General Affairs Section. Finally, the Malabo Protocol permits Member States, Regional Economic Communities, and International Organizations recognized by the African Union to conclude agreements to refer appeals to the African Court. These would be appeals of decisions not made by the African Court itself but issued by a different institution like the East African Court of Justice. Therefore, the appeal would be directly referred to the appropriate section depending on the subject matter of the case.

Decisions of the General Affairs and Human and Peoples’ Rights Sections of the African Court, unlike those of the International Criminal Law Section, cannot be appealed. The protocol provides that cases within the General Affairs and Human and Peoples’ Rights Sections may only be revised.  There has been considerable confusion over this aspect of the Protocol and several commentators have expressed concern that appeals from the civil sections of the African Court – namely the General Affairs Section and the Human and Peoples’ Rights Sections – will be decided by the Appellate Chamber of the International Criminal Law Section. Under this argument, decisions by the civil sections could be overturned by an appellate criminal chamber “that is not well-versed in the issues at hand.” A careful review of the history of the African Court and of the full Statute, however, clarifies that decisions of the General Affairs and Human Rights Sections cannot be appealed.  This is consistent with other international human rights bodies; for example, decisions of the Inter-American Court of Human Rights are not appealable.

However, the International Criminal Law Section is different because, under international law, a criminal defendant must have an opportunity to appeal a conviction.  Addition of the Criminal Law Section therefore necessitated the creation of an appellate chamber within the African Court.  Nearly every reference to the appellate chamber in the protocol refers to it in the context of the Criminal Law Section, indicating that it is intended to adjudicate appeals from that section only.