PART A: Background to the African Regional Human Rights System The Court officially began operating in November 2006 in Addis Ababa, Ethiopia and in August 2007 it moved to its seat in Arusha, Tanzania. The Court received its first application in August 2008 and delivered its first judgment in 2009 in the case of Michelot Yogogombaye v. the Republic of Senegal.68 By September 2013, the Court had received 28 applications of which it had finalised twenty with eight cases pending, including one request for an Advisory Opinion. However, the Court has yet to issue a judgment dealing with Article 5 of the Charter, and it is therefore too early to assess the Court’s jurisprudence relating to torture and ill-treatment. In 2009, the Protocol for an African Court of Justice entered into force, having been adopted by the AU Assembly in 2003. However, before its establishment, the AU Assembly decided to ‘merge’ this Court and the African Human Rights Court under one body, the African Court of Justice and Human Rights.69 The reasoning for an amalgamated court was concern regarding the limited financial and human resources available for both courts. The Protocol on the Statute of the African Court of Justice and Human Rights was adopted in 2008. However, the merging process has stalled indicating a lack of political will to establish this court. As of 3 January 2013, the Protocol on the AU Court of Justice and Human Rights had only 5 of the 15 ratifications needed to enter into force.70 The African Court on Human and Peoples’ Rights was established ‘to complement the protective mandate of the African Commission on Human and Peoples’ Rights’.71 In other words, the Court does not replace the Commission, but supplements its mandate to examine individual and inter-State communications.72 As discussed in further detail in Part C, the usual route to the Court is through the Commission via the referral procedure. Most individual communications therefore still must be submitted to the Commission. After the Commission has decided the case, the individual has no standing to submit the case to the Court. Only the Commission may forward it to the Court, as provided for under Rule 118(1) of the Commission’s Rules of Procedure. Examples of cases that are referred by the Commission to the Court include those in which the State party has failed to comply with the Commission’s decision or those involving serious or large-scale 68 69 70 71 72 African Court on Human and Peoples’ Rights, Michelot Yogogombaye v. Republic of Senegal, App. No. 001/2008, (15 December 2009). Decision on the Seats of the Organs of the African Union, Assembly/AU/Dec. 45 (III) Rev. 1. Benin, Burkina Faso, Congo, Lesotho and Mali. The Protocol had 29 signatories. See African Union List of countries which have signed, ratified/acceded to the Protocol on the Statute of the African Court of Justice and Human Rights, available at: http://au.int/en/sites/default/files/Protocol%20 on%20Statute%20of%20the%20African%20Court%20of%20Justice%20and%20HR.pdf. African Human Rights Court Protocol, supra note 22, Article 2. For more discussion on the relationship between the Court and Commission including referral of cases to the Court from the Commission, see Part C, Section IX(3) below. 31