The African Court on Human and Peoples' Rights

On July 02, 2006, the eleven judges[1] of the newly constituted African Court on Human and Peoples' Rights were sworn in before African leaders attending a summit meeting in Banjul, The Gambia. This event culminated decades of arduous negotiations, protracted conferences, and sluggish movement toward the formation of a competent human rights judicial body in Africa and the most recent of the regional courts.[2]

History of the Establishment of the African Court on Human and Peoples' Rights

The foundation for the Court stems from the Law of Lagos Conference[3] held in 1961 on the rule of law, when the Court was considered as part of a once-proposed African Convention for Human Rights. The Convention never developed, and the idea of the Court was later dismissed as not being an African way to resolve disputes.[4] Complex negotiations regarding how to address human rights abuses took place throughout the 1960s and 1970s, resulting in the creation of an African Charter on Human and Peoples' Rights in 1981.[5] While the African Charter attempted to protect the rights and freedoms of the African population and reaffirm the dedication of the Organization of African Unity (OAU) towards promoting human rights, it strategically omitted the creation of a court in order to achieve consensus regarding the human rights document. Instead, an African Commission[6] was created with weakened supervisory powers and an inability to make binding decisions.

Finally, after another decade of negotiations, a Draft Protocol was created and adopted by representatives of the OAU (now the African Union) in 1998.[7] This Protocol established the basis for the Court.[8] However, it took another six years for the necessary fifteen African countries to ratify the Protocol to the African Charter and for its entry into force, with the Court finally constituted in 2004. After the establishment of the Court, difficult negotiations were conducted as to where to base the Court and how to elect the judges. It was resolved that the Court would be based in Arusha, Tanzania, utilizing facilities developed for the International Criminal Tribunal for Rwanda. The judges for the Court were finally elected in January 2006 at the Eighth Ordinary Session of the Executive Council of the African Union.

Composition of the Court

The African Court is intended to be an organ of the African Union and to complement the Commission on Human Rights.[9] The Court is comprised of the eleven judges elected by Member States of the African Union, with only States that are party to the Protocol proposing candidates, and no more than one national of any State sitting on the Court. The Protocol explicitly requires regional, legal tradition, and gender diversity.[10] The judges are elected for alternating and renewable six-year terms. They perform their functions on a part-time basis except for the President of the Court, who serves full-time. In order to ensure the independence of the judiciary, the judges are not elected as representatives of their States, but are entrusted to discharge their duties impartially and faithfully.[11] The judges are further elected among a pool of jurists of "high moral character and of recognized practical, judicial or academic competence and expertise in the field of human and peoples' rights."[12] To further ensure independence and integrity, the judges may not carry out any activity that might interfere with their impartiality or ability to carry out justice.

When the Court has finished hearing a case, it must render a judgment within ninety days, in order to comply with the principle of expeditious justice. The judgments require a majority vote, with each judge entitled to issue a separate concurring or dissenting opinion.

States Parties to the Protocol undertake to comply with the judgment in any case to which they are parties, but there may be difficulties in enforcement as compliance is still effectively voluntary. The Council of Ministers is obligated to monitor the execution of the decision, but it has no enforcement power.[13] While the Court shall report to the Assembly of Heads of State and Government each year as to which States have not complied with Court judgments, it is unclear what mechanisms can enforce compliance.

Comparison with the Other Two Regional Courts on Human Rights

While the three regional human rights courts, African, European, and Inter-American, all have provisions for six-year terms of office for the judges,[14] grant judicatory and advisory powers to the relevant courts, require public hearings in all but exceptional circumstances, require a simple majority for decisions, and have voluntary execution of judgment, there are significant differences between the regional courts.

In the African Court, individuals and non-governmental organizations have the right to bring cases, but in the Inter-American court, individuals and non-governmental organizations (NGO) have no standing and are only entitled to bring cases in front of the Commission. However, the African Court falls short of the allowances of the European Court of Human Rights. In the African Court, individuals and NGOs can only bring cases if they have been recognized as having observer status,[15] while in Europe, individuals, groups of individuals and NGOs claiming to be victims of rights violations have the power to submit cases to the Court. This distinction is significant, as it is unlikely that many African States will recognize the competence of the African Court to hear individual or NGO petitions, and thus, individuals and NGOs are unlikely to be direct participants in the human rights process.

Where the African Court is most expansive compared to the other courts is in the applicable subject matter jurisdiction. While the Inter-American Court and European Court are bound to the implementation and interpretation of their governing conventions and protocols, the African Court can apply any instrument or source of law concerning human rights that is ratified by all the States concerned.[16] This, over time, will permit the African Court to address new issues of human rights.

A significant difference between the Courts also lies in who is eligible to serve as a judge. While the European Court permits the election of non-European judges, the African Court requires that the judges be nationals of Member States of the African Union. This provision helps establish an "African" composition within the Court and helps build human rights traditions within Africa.

Finally, while a judge in the African Court is excluded from hearing a case submitted by a national of the same State as the judge,[17] no such provision exists in the Inter-American and European Courts. This provision was included in the African Court to remove any perceived or actual obstacles to the impartial administration of justice.

The overall goal of all of the provisions is to create a tribunal that is perceived as being independent from political pressure or impropriety, immune from corruption, and responsive to the needs of the population. In addition, there is the goal of creating a tribunal that meets international norms for adjudicating human rights cases, while maintaining the "African" character of the Court.

Impact of the Creation of the Court

Previously, there was no mechanism for enforcement and compliance of human rights obligations in Africa, with the Commission limited to functions such as considering State reports, collecting documents, undertaking studies, laying down principles and disseminating information on human rights issues.[18] Enforcement was limited to investigation and communication with States.[19] Now, there is a competent judicial body to address the many human rights instruments promulgated in Africa without identified judicial mechanisms.

Finally, there is a draft process for merging the African Court of Justice, designed to address inter-State conflicts, into the newly constituted African Court of Human and Peoples' Rights. The African Court of Justice has never come into force, and the hope is that the merging of the two courts will provide an additional forum for resolving conflicts in Africa and prevent another lengthy process of establishing a new court. Thus, the result of the creation of the African Court on Human and Peoples' Rights may be that a de facto African Court of Justice is also created.[20]

Conclusion

The formation of the African Court on Human and Peoples' Rights is possibly a watershed moment in human rights enforcement in Africa. While the African continent has led the way in terms of promulgation of human rights treaties, the last several decades have been witness to genocide, a war crimes tribunal, the first case brought before the International Criminal Court, and serious human rights abuses. It took decades to create the African Court, but human rights advocates in Africa are looking at it as the beginning of true human rights enforcement in Africa.

About the author

Scott Lyons, an ASIL member and a recipient of the ASIL Helton Fellowship, is a legal analyst and project manager for the American Bar Association's Central European and Eurasian Law Initiative (ABA/CEELI). He is a former Institute Scholar and Peace Fellow for the Public International Law and Policy Group and Gillett-Mussey Research Fellow for the War Crimes Research Office. He recently returned from South Africa where he was researching human rights issues as part of his Helton Fellowship.

Footnotes

[1] The new judges are Sophia A.B. Akuffo (Ghana), Handi Faraj Fanoush (Libya), Modibo Tounty Gundo (Mali), El Hadji Gisseh (Senegal), George KanyeiHamba (Uganda), Kellelo Justina Masafo Guni (Lesotho), Jean Mutsinzi (Rwanda), Bernard Makgabo Ngoepe (South Africa), Dr Gerald Niyungeko (Burundi), Dr Fatsah Ouguergouz (Algeria), and Jean Emile Somda (Burkina Faso). Complete profiles can be found at http://www.pict-pcti.org/courts/ACHPR_judg_bio.html.

[2] The other regional courts are the Inter-American Court of Human Rights, at http://www.corteidh.or.cr/index.cfm?CFID=7406&CFTOKEN=57210983, and the European Court of Human Rights, at http://www.echr.coe.int/echr.

[3] For the Law of Lagos, see, at http://www.chr.up.ac.za/hr_docs/african/docs/other/other22.doc.

[4] Many African leaders showed a strong a preference for an arbitration mechanism. Other African scholars contended a need for a system that incorporates unique African culture and traditions. The basis of each argument is a rejection of an adversarial process of litigation.

[5] See "African Charter," at http://www.achpr.org/english/_info/charter_en.html. Sometimes called the "Banjul Charter," this agreement was adopted in 1981, but did not enter into force until October 21, 1986.

[6] African Commission on Human and Peoples' Rights, at http://www.achpr.org/english/_info/mandate_en.html.

[7] Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights ("Protocol for Establishment of an African Court"), CAB/LEG/665, Adopted June 9, 1998 and entered into force January 1, 2004, at http://www.achpr.org/english/_info/court_en.html.

[8] The reason for the ability to reach agreement was stated in the preamble of the Protocol for Establishment of an African Court, which stated that the Member States were "[f]irmly convinced that the attainment of the objectives of the African Charter on Human and Peoples' Rights requires the establishment of an African Court on Human and Peoples' Rights to complement and reinforce the functions of the African Commission on Human and Peoples' Rights."

[9] Protocol for Establishment of an African Court, arts. 2, 5(1). The Commission is entitled to submit cases to the African Court.

[10] Protocol for Establishment of an African Court, art. 14.

[11] Protocol for Establishment of an African Court, arts. 16, 18.

[12] Protocol for Establishment of an African Court, art. 11.

[13] Protocol for Establishment of an African Court, arts. 29-30.

[14] While the African and Inter-American Courts have provisions that the judges terms are renewable only once, the terms of the European judges are renewable without limitation.

[15] Protocol for Establishment of an African Court, art 5(3), art. 34(6). The Protocol provides for an optional jurisdiction for cases submitted by individuals or non-governmental organizations with observer status. For the Court to be able to hear cases from these individual entities, the State that is the subject of the complaint must have first recognized such competence at the time of ratification or any time thereafter. The Court cannot hear petitions against States that have not opted to allow that type of competence by the Court.

[16] While human rights treaty ratification in Africa is not widespread, examples could include the recently entered into force Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, adopted in 2003 and entered into force on November 25, 2005, at http://www.achpr.org/english/_info/women_en.html.

[17] Protocol for Establishment of an African Court, art. 22.

[18] African Charter, art. 45.

[19] African Charter, art. 46-59.

[20] For a discussion on the issue of merging the two courts, see http://www.africancourtcoalition.org/merger_submission_eng_06.pdf.