Operationalizing the African Court of Human and Peoples’ Rights

Introduction

The African Court on Human and Peoples’ Rights (African Court) became constituted in 2006 with the election of judges, after two decades of existence of the African human rights system.¹ The eleven member African Court is established to complement the work of the African Commission on Human and Peoples’ Rights (African Commission or Commission),² and as the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (African Court Protocol or Court Protocol) suggests, the Court is established to make the promotion and protection of human rights within the region more effective.³ Despite this significant development within the African human rights system, some scholars criticize the establishment of the Court while others praise the event considered “better late than never.”⁴

The history of the African Court dates back to 1994 with the adoption of a resolution by the Assembly of Heads of State and Government of the African Union (AU, formerly the Organisation of African Unity (OAU)), requesting its Secretary-General to convene a government experts meeting in conjunction with the African Commission to ponder on ways to enhance the efficiency of the African Commission and to consider the establishment of an African Court on Human and Peoples’ Rights. It took approximately six years for the African Court Protocol to enter into force⁵ and even more time for the Court to materialize due to complications arising in the process of its establishment. I examine briefly the processes leading to the emergence of the African Court, its challenges, both past and present, and prospects for the future.

One Union Two Courts?
The establishment of the African Court was interrupted by the confusion in the functions, on the one hand, of the African Court of Human and Peoples’ Rights, and on the other hand, the Court of Justice of the African Union.⁶ Article 18 of the Constitutive Act of the African Union provides for the establishment of “[A] Court of Justice of the Union…,” the possible overlap of functions of the two courts led to the decision of the Assembly of Heads of States and Government, at its 3rd Ordinary Session in July 2004, to integrate the African Court on Human and People’s Rights and the African Court of Justice. The process of establishing the African Court was resumed in 2005 with a Draft Protocol merging the two courts; however, it was the decision of the Executive Committee of the AU to continue the operationalization of the African Court.⁷ The merger resulted in emergence of a “hybrid” court with more extensive substantive jurisdiction, thus limiting possible divergent interpretation of relevant human rights instruments. In addition, the hybrid African Court serves as the third pillar of the African Union system along with its executive and legislative organs.⁸

Taking Its Place
The relationship between the newly constituted African Court and the African Commission remains unclear. Despite the controversial relationship between the African Court and Commission, the Court retains the position of the final arbiter and interpreter of the African Charter. As such, not only can the African Court determine the scope of its substantive jurisdiction, Article 3 (1) of the Court Protocol grants the court expansive jurisdiction to adjudicate “all cases and disputes submitted to it concerning the interpretation and application of the Charter, this protocol and any other relevant human rights instruments ratified by the States concerned.” Article 4 also grants the Court expansive advisory jurisdiction.

Article 5(1) of the Protocol allows certain groups but not an individual to submit contentious cases to the African Court. The only way an individual can submit a complaint is subject to Article 34(6) which stipulates that “at the time of the ratification of this Protocol, or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under Article 5(3)”.⁹ Therefore the Court Protocol places the African Commission in an important position that would require coordination and cooperation between the two institutions. The onus is on the African Commission to submit cases to the African Court where a state fails to make the requisite declaration.

In an attempt to resolve question of the relationship between the African Commission and Court, the African Commission set the pace by establishing a Working Group, on Specific Issues, to among other things revise the Rules of Procedure of the Commission and to address issues relating to the working relationship between the Commission and the Court. The Working Group inter alia recommended that the bureau of the two institutions meet every year to discuss their relationship. In addition, since the election of its members, the African Court has held three sessions. Bureau members were elected into office in September 2006.¹⁰ Gerald Niyungeko, the President of the African Court, identified the priorities of the Court to include drafting its Rules of Procedure,¹¹ preparing a budget for 2007,¹² preparing a structure for the Registry and cooperation with external partners.¹³

The Future of the African Court
Even though the establishment of the African Court is a landmark event in human rights protection in Africa, it is only the beginning. The Court, which would sit in Tanzania, faces the challenge of proving itself as an institution able to effectively deal with human rights violation in Africa.¹⁴ The success of the Court may depend on its ability to address issues of accessibility of victims, the relationship between the African Court and the Commission, the role and participation of Civil Society as well as ensuring its independence from state parties. In addition, the cooperation of state parties is vital for various reasons; state parties must make the requisite Article 34(6) declaration, and comply with their obligations under the Court Protocol; the AU must make available the necessary financial resources for the effective functioning of the Court while at the same time ensuring the independence of the judges. The Court must also interpret the African Charter and other instruments to address the practical reality of the Africa’s people in order to build popular legitimacy.

Conclusion
The establishment of the African Court on Human and Peoples’ Rights provides a renewed impetus for the development and growth of human rights culture on the African continent. While the African Court will not end human rights abuse on the continent, it will strengthen the regional human rights system as a whole as well as provide an important deterrent to human rights abuse. However, the Court must face and overcome several challenges identified above in order to be successful. Moreover, even though the present a close working relationship between the African Court and the African Union is beneficial, the take off of the African Court remains handicapped by its dependence on the AU Commission for the implementation of its activities. Further, the location of the seat of the African Court in Tanzania far away from both the African Union and the African Commission may present a challenge. Consequently, although the advent of the African Court would fill a “legal lacuna” in the African human rights system, only time will tell how effectively this lacuna would be filled.

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