International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Fall 2012 Issue
 

International Tribunal Spotlight

 

African Court on Human and People’s Rights

African Court on Human and People’s RightsBy Lucia Druetta, Assistant Editor, International Judicial Monitor

Introduction

In order to strengthen the protection of human rights in Africa, the African Court on Human and People’s Rights (the “ACHPR”) was created in 1998 under the Protocol to the African Charter of Human and People’s Rights adopted in 1986 (the “Banjul Charter”) and came into force in 2004. It is located in Arusha, Tanzania. This Court is one of the twelve organs of the African Union (the “AU”), which is composed of 54 African countries. The Court aims “to complement and reinforce the functions of the African Commission on Human and People’s Rights”, a quasi-judicial body created by Article 30 of the Banjul Charter. While the Banjul Charter has been ratified by all the state members to the AU, only 26 states have ratified the ACHPR Protocol and thus have recognized the jurisdiction of the Court.

The Constitutive Act of the African Union of 2000 (“the Act”) provided for the creation of the ‘Court of Justice of the African Union’ (“the Court of Justice”). This judicial body, which was meant to deal with economic integration and political matters, is not yet operative. In order to avoid the overlap of organs and functions, the Protocol of the Statute of the African Court signed in 2008 provides for the merger of the ACHPR and the Court of Justice - replacing the 1998 and 2003 Protocols – to set up a single court that will be in charge both of the African economic and political matters and the human rights issues. This new merged court that it is not yet functioning will be known as the African Court of Justice and Human Rights.

Until the merged court comes into existence, the ACHPR is the judicial body that will deal with the promotion and protection of human rights in Africa, complementing the protective mandate of the African Commission on Human and People’s Rights recognized in the Banjul Charter. Headquartered in Tanzania, the Court’s mandate not only covers the interpretation of the provisions of the Banjul Charter but also of any other relevant instrument ratified by the states involved and at the request of a State Party, an institution of the AU or an African organization recognized by the AU. It can also seek the amicable settlement of disputes and can issue advisory opinions. Its decisions require a majority vote and are final. The Court can also issue provisional measures when necessary.

Structure of the Court

The ACHPR is comprised of eleven (11) judges who must be AU nationals (Article 13). Each State Party to the ACHPR Protocol has to provide a list three candidates, from which the final 11 judges are selected by secret ballot by the Assembly of States. The selected judges serve for a six-year period, renewable only once. According to the ACHPR Protocol, it is expected that the Assembly secure not only gender representation in the Court but also representatives of “the main regions of Africa and of their principal legal traditions” (art. 14). At this moment, the Court is composed of two women and nine men judges from Ghana, Algeria, South Africa, Burundi, Tanzania, Malawi, Nigeria, Côte d'Ivoire, Senegal and Kenya.

Pursuant to article 17 the independence and immunity of the judges is insured. To that end, no judge can either hear a case in which he or she has previously taken part or be held liable for any decision or opinion issued while the judge is exercising judicial functions. In addition, judges are not allowed be involved in activities which might be incompatible with the required independence or impartiality. 

The President of the ACHPR is responsible for the administration of the Court including the representation of the Court, promotion of activities and presentation of annual reports, among other duties. The Court elects the President and Vice-President from among its members.

Jurisdiction of the ACHPR

The ACHPR has jurisdiction over contentious cases and for the issuance of advisory opinions (art. 4 and 3). The Court has also competence to settle disputes amicably (art. 9). 

In the first case, the Court may provide an opinion on a legal matter related to the Charter or any other relevant human rights instruments as long as the matter is not being examined by the Commission.

In the second case, the Court will hear all ‘cases and disputes submitted to it concerning the interpretation and application of the Banjul Charter, the ACHPR Protocol and any other relevant Human Rights instrument ratified by the states concerned’ and cases in which its own jurisdiction is questioned. In this respect, the Court’s competence is broader than that of the Commission, which only deals with the interpretation of the Banjul Charter.

  

While the Commission can receive direct communications from States, NGOs with observer status and individuals, the ACHPR Protocol limits the access to the Court to the following: the Commission, the claimant and defendant States before the Commission, the State Party whose citizen is a victim of human rights violations, African intergovernmental organizations, States Parties with an interest in a case, non-governmental organizations with observer status before the Commission, and individuals referred to in Article 34 (6) (Article 5). This provision requires a declaration of the State Party accepting the jurisdiction of the court in cases submitted by NGOs with observer status and individuals.

It should be noted that only five countries out of the twenty-six (26) nations that have ratified the Protocol have made a declaration accepting the competence of the court in these cases. Thus there appears to be little interest on the part of many States Parties to be brought to the Court for human right violations in their territories, and an even greater reluctance for the Court to hear cases submitted by individuals and NGOs, which are most of the time the main interested parties. Moreover, even when countries declare that they accept the jurisdiction of the court in accordance with Article 34 (6), some of them require the exhaustion of local remedies as a condition to access to the Court.

Challenges

The African Court on Human Rights was established to perfect the protection of human rights in Africa. However, after more than 10 years of existence, only 23 applications have been submitted and 13 cases have been concluded in the Court. Thus it appears that the Court has fallen short on the achievement of its main goals. Therefore, in the understanding that the court system should be improved to fully comply with its mandate, there are challenges that should be quickly addressed. Some of them are the following: an easier access to the court by NGOs and individuals, the enforcement of its decisions, increased information about the Court for the general population, and activities that promote a greater awareness among citizens about the Court’s existence, functioning and decisions.

The condition set forth in Article 34 (6) of the ACHPR is a great limitation for the seeking of redress by the main recipients of human rights violations. For this reason, the States Parties should be consistent with the main commitment made as signatories to  the Banjul Charter and allow direct access to the Court in those cases. Non-governmental organizations should advocate and lobby to incorporate more declarations of States under this provision. Although this limitation could be somehow bypassed by an indirect access to the Court through the submission of communications on human rights violations to the Commission, the uncertain procedure of the Commission to examine these types of cases, the length of time currently required to process cases, and the lack of a mechanism to implement decisions undermine the Court as an effective protector of human rights. Therefore, the process that takes place before the Commission should be revised and the interaction between the Commission and the Court should be improved.

Pursuant to Article 30 of the ACHPR Protocol, States Parties ‘undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution’. This means that the enforcement of the decisions and orders of the ACHPR seeking relief is voluntary. Again, this is a great limitation to the protection of human rights in Africa. It makes the main objectives of the Banjul Charter meaningless. In this respect, and taking into account that enforcement has always been difficult when it comes to international or regional tribunal decisions, additional measures, such as publicity of decisions and diplomatic pressure, among others, should be considered. These measures, if not fully effective, would have at least the impact of revealing human right violations committed by the State concerned, thus adversely affecting its reputation in the eyes of the world.

Lastly, linked to the previous challenge, States Parties, NGOs and individuals should raise awareness of the existence, functioning and decisions of the Court to the general public. In line with the main goals of the Banjul Charter and related documents, the AU should increase the financial support to enable the Commission and the Court to reach out to more people, learn from the European and Inter-American Court of Human Rights experiences, and provide information on how their human rights can be effectively promoted and protected

Note: Detailed information about the African Court on Human and People’s Rights can be found at the following web site: http://www.african-court.org

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© 2012 – The International Judicial Academy
with assistance from the American Society of International Law.

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