The African Court of Justice and Human Rights: An Ambitious Project Awaiting Implementation — A Study in Light of the 2008 Sharm El-Sheikh Protocol

Abstract

This study investigates the proposed African Court of Justice and Human Rights, envisaged under the 2008 Sharm El-Sheikh Protocol, as an effort to establish a continental judicial framework that combines institutional integration with functional specialization. The model seeks to consolidate general judicial functions and human rights protection within a single institution while assigning these responsibilities to two distinct specialized sections. The study examines the principal characteristics of this institutional arrangement in comparison with selected international and regional judicial systems. It further evaluates whether the Protocol adequately addressed the concerns arising from the proposed merger of the Court of Justice of the African Union and the African Court on Human and Peoples’ Rights, while investigating the institutional and legal factors that have prevented the project from becoming operational.

The study argues that the importance of the Sharm El-Sheikh Protocol extends beyond the institutional consolidation of two judicial bodies. Its principal contribution lies in its attempt to achieve unity in continental adjudication without undermining the specialized functions of the judiciary within a unified institutional structure. Nevertheless, the practical and normative potential of this arrangement remains constrained by the Protocol’s continued failure to enter into force. In response to this impasse, the study advocates a gradual implementation strategy that begins with operationalizing the Court envisaged by the Sharm El-Sheikh Protocol. This initial phase would provide an opportunity to assess the institution’s operational capacity and consolidate its functions in general adjudication and human rights protection before proceeding to the next stage of institutional development. The latter would involve incorporating the International Criminal Law Section envisaged under the 2014 Malabo Protocol. To ensure that this phased strategy facilitates rather than indefinitely postpones institutional completion, it should be supported by clearly defined safeguards, an implementation timetable, and mechanisms preventing the transitional arrangement from becoming a permanent alternative to the envisaged judicial structure.