Complementarity at the African Court

Abstract

The proposed African Criminal Court, which will form part of the African Court of Justice and Human and Peoples’ Rights, is designed to be complementary to national courts in Africa, as well as to sub-regional courts with criminal jurisdiction. This book chapter analyzes the complementarity provision of the statute of the proposed court, which largely replicates article 17 of the Rome Statute of the International Criminal Court (ICC). It seeks to elucidate the likely relationship between the proposed African Court and the ICC, as well as between the African Court and national and regional courts in Africa. The chapter then addresses the normative question of how the proposed African Court should interact with these other institutions. While a great deal of theoretical work remains to be done in this area, the chapter suggests that as regional and sub-regional criminal courts such as the proposed African Court emerge, they should not be viewed as forming a jurisdictional hierarchy, with national courts at the top and the ICC at the bottom, but rather as providing a menu of adjudicative options. Jurisdictional priority should be decided by balancing a range of factors from practical considerations such as ease of obtaining evidence and custody, to defendants’ rights. Particular attention should be paid to the interests of each institution’s constitutive community in adjudicating a particular case. In this way, national, regional, and international criminal courts can truly complement each other.