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African Commission criticised for failing to institute African Court

The leading international NGO working to secure rights for ethnic, religious minorities, Minority Rights Group International, published a new report (and the Press Release) on the African Court on Human and Peoples’ rights which has yet to hear a case ten years after the African Unity’s summit signed the Protocol in Burkina Faso founding it and ordering for its institution.

Since the signing of the Protocol in the establishment of an African Court there has been some but very little progress on the whole. Although judges and a location have been chosen, and rules of procedure developed, the institution to be the Court is presently suffering from one of the most commonly contracted diseases in the field – the syndromes of bureaucracy. More so, however, since the main source for this effect is the proceedings taking place in the African Commission on Human and Peoples’ rights, the current quasi-judicial adjudicative human rights body on the continent.

The report submits that since the latter’s decisions are only politically binding, member states have been reluctant to take a daring step forward and sacrifice a much greater portion of their state sovereignty. The Commission’s institutional stance has been wary of a drastic transition that if made haphazardly could create rivalry between the two institutions instead of building a complimentary relationship that would contribute to the protection of the Commission’s mandate and order specific remedies in accordance with its submissions.

The need for such an African-taylored and African-made human rights monitoring mechanism has been as strong as ever and as it appears even through the debates in the last ten years the momentum for the development of such a body has not been extinguished. Whilst the benefits of a hard legal tool are well acknowledged and the limitations of the toothless Commission reemphasized, they are yet to untangle some unresolved matters between them. In this light, it is also worth noting that the African Court is due to be faced with a comparable challenge as it considers its relationships with International court and judicial bodies, and in particular the ICC, whose arrest warrants have recently been rejected with antagonism by various African governments and regional bodies, some for clearer reasons than others (see the Jurist’s report for an example).

The uniqueness of this Court is manifestly evident from its careful and careful construction throughout the four years before the signing of the Protocol as well as since the decision to implement its institution. It is to be a Court that has learned extensively and profoundly from the failures and successes of other regional human rights courts and is bound to present African states  and peoples with a more effective and efficient instrument for the enforcement of the African Charter on Human and Peoples’ Rights (which uniquely encompasses all three generations of human rights – i.e. civil, social and developmental people’s rights) as well as become a leading adjudicative body contributing to the evolution of the international legal field of international human rights law, as has been the role of the European Court of Human Rights (established in 1959 and merged with the Commission in 1998). It is therefore hoped that these disputes are soon to be resolved in order to give way to its full institution to allow the commencement of hearings as soon as possible.

3 Comments

  1. Innocent Mawire Innocent Mawire 1 October 2008

    The birth of the African Court is a welcome development on the continent. But the mere addition of a court, although a significant development, is unlikely by itself to address sufficiently the normative and structural weaknesses that have plagued the African human rights system since its inception. The African state has been such an egregious human rights violator that skepticism about its ability to create an effective regional human rights system is appropriate. There is need to have a clear and mutually reinforcing division of labour between the Commission and the Court, ie, the Commission should have a promotional mandate while the court will be accorded the protective mandate. The Charter itself needs to be revised especially the “claw back” clauses, the absence of a derogation clause, also the area relating to the language of duties and its veneration of culture which has been viewed as reinforcing gender oppression.
    One serious shortcoming of the African H.R Court relates to the limitation of access placed by the Protocol on individuals and NGOs. The court has two types of access, one automatic and the other optional. Individuals and NGOs cannot bring a case unless two conditions are met: the court has discretion to deny or allow access or the sate must make a declaration at the time of ratification of the Protocol accepting the jurisdiction of the court to hear cases from individuals and NGOs. This is disappointing because a court is primarily a forum for protecting citizens against the state and other government agencies and not an institution for the protection of rights of states of the AU. This limitation will render the court virtually meaningless unless it is interpreted broadly and liberally

  2. Jernej Letnar Jernej Letnar 1 October 2008

    I agree, Inno. As far as I know only two states have so far submitted a declaration accepting the jurisdiction of the court to hear cases from individuals and NGOs.

  3. Valentina Azarov Valentina Azarov 2 October 2008

    I solidly agree with you, Innocent. The problematic rooted in the phrasing of the Protocol when it was signed is indeed one of the greatest obstacles that the African human rights system is to deal with on its path towards the institution of the Court, but more imminently towards the acceptance of its jurisdiction by member states.
    The placement of the Court in the spectrum of human rights systems worldwide is effectively endangered by the aspect of its legal framework which creates an opt-in situation with regards to individuals’ and NGOs’ direct access to the Court. It could even be argued that such a clause would almost expect for States to limit access in many situations of particular political sensitivity.
    On the other hand a comparable limitation is true for the Inter-American human rights system and is found in the rules governing the interaction between the Commission and the Court. Whilst the Inter-American Commission receives a considerably notable number of cases, the Court, which has to wait for the Commission to refer the case to the Court only if it fails to abide by the Commission’s recommendation or it deems the case to be of such importance that it should receive special adjudicative attention. The other way that a case could reach the Inter-American Court of Human Rights is by direct reference from the state party itself. The barring of direct access for individuals and NGOs to the Court’s mechanisms has been a limitation of particular gravity in this context and therefore should be noted as one of the African Court’s main downside and a structural problem that it has failed to redeem from a comparative perspective.

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