The viability of the ACHPR, and by inference, the African human rights system, was seen to be severely impaired as a result of the absence of a court on human rights. This point of view had become so pronounced in Africa that during the summit of Heads of State and Government of the OAU, held in Tunis, Tunisia in June 1994, a decision was made to give more “teeth” to the African human rights system in the form of a human rights court, which would complement and reinforce the ACHPR.
The success of the ACtHPR will, to a large extent, depend on the operational efficiency of the ACmHPR, as the overarching aim of the court is to supplement (complement) the ACmHPR’s complaints procedure. On a procedural level, article 33 of the Protocol states that the ACtHPR “shall draw up its Rules of Procedure and determine its procedures”.
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Human rights defenders appeal for direct access to the African Court
The ACtHPR acts in an adjudicatory and advisory capacity. Article 3 of the Protocol declares that the ACtHPR’s substantive jurisdiction covers “all cases and disputes submitted to it concerning the interpretation and application of the Charter; this Protocol and any other relevant human rights instrument ratified by the states concerned”. The ACtHPR will then potentially become an enforcement body for other human rights treaties ratified by African states. As far as the advisory capacity is concerned, ‘the Court may issue advisory opinions on any legal matter relating to the ACHPR or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the ACmHPR ’.
In terms of articles 5 and 6 of the Protocol, parties that will be in a position to submit cases before the court (locus standi) include state parties, African inter-governmental organisations, individuals and NGOs with observer status before the ACmHPR . However, the ACtHPR has restrictions on locus standi. Under article 34(6), for the Court to receive individual petitions, the state against which the complaint has been lodged must have recognised the competence of the ACtHPR to receive such communications. The right of individuals to seek redress is gravely affected by this provision, as so far only Burkina Faso and Mali have recognised such competence. Article 6 of the Protocol states that the ACtHPR will rule on admissibility of cases but it “may request the opinion of the ACmHPR” and “may consider cases or transfer them to the ACmHPR”.
The ACtHPR has a definitive role to play in the protection of human rights on the continent, as it has the capacity to pass judgments against States found guilty of human rights violations. This will replace the lesser ‘punishment’ of censure by the African ACmHPR because the decisions of the African Court are final and thus unequivocally binding on State parties. In this regard, State parties will be required not only “undertake to comply with the judgment in any case to which they are parties,” but also to “guarantee its execution”.
Those appearing before the ACtHPR may have free legal representation “if the interests of justice so require”. The Court also has the ability to order the payment of compensation, and it may take provisional measures. A judgment will be given by the ACtHPR within 90 days of completion of its deliberations and judges may deliver dissenting opinions. The decisions of the court will be binding and the Council of Ministers of the AU is to monitor the implementation of the decision, thus injecting a political element into enforcement.
The ACtHPR is composed of 11 judges elected by member States of the AU for six-year terms of office, renewable once. Judges are elected in their individual capacity from among jurists of high moral character and of recognised practical, judicial or academic experience in the field of human rights. The nomination of judges should take into account gender and geographical balance. The independence of the judges is of primary concern.
According to a Note Verbale issued in November 2004, mandatory guidelines have been issued by the AU for the nomination of candidates to be elected as ACtHPR judges. The guidelines are designed to ensure “the creation of an independent, efficient, and operational Court” and they affirm that “the moral authority, credibility, and reputation of the ACtHPR will, to a large extent, depend on the composition of its first bench”. The guidelines emphasise the fact that the nominees must be persons with irreproachable integrity, established competence, and experience in the area of human rights. On the issue of gender representation, the guidelines state:
If due consideration of gender is to be meaningful, State Parties should ensure that at least one (1) of the candidates they nominate is female and that they give preference to candidates with experience in more than one of the principal legal traditions of Africa (civil law, common law, Islamic law, and custom and African customary law).
Additionally, in order to ensure representation of all the regions of Africa, the guidelines declare that:
The AU geographical representation formula should, as far as possible, be used unless the required number cannot be obtained from any of the regions, namely West (3), Central (2), East (2), South (2), and North (2).
The Guidelines are notable in that they encourage member states to ensure participation by civil society, bar associations, and women’s organizations in the nomination process. They also require state parties to “employ a transparent and impartial national selection procedure”.
Implications in the establishment of the ACtHPR
Proposals have been put forward concerning the possible future role of the ACmHPR once the ACtHPR is established. The Coalition for an Effective African Court (CEAC), a group of NGOs who have come together to lobby and advocate for the successful establishment of the African Court, has asserted that the Court should be responsible for both the protection and promotion of human rights. Its effect is that the ACmHPR may not necessarily cease to fulfill its protective mandate. It implies that the ACmHPR’s Rules of Procedure should be amended so that it will no longer deal with communications alleging violations of human rights. The motivation for this is that the ACmHPR over two decades of experience and a rich jurisprudence, which should not be ignored, while the binding nature of decisions of the ACtHPR cannot be over-emphasised. However, it is essential that a vacuum is not created, at least during the transitional period. In the interim, the ACmHPR could make use of the precedent that was set by the European Commission on Human Rights, which continued to hear and finalise all pending cases pending the establishment of the European Court on Human Rights.
Financial concerns and logistical considerations will also invariably have an effect on the functioning of the ACtHPR, thus it is essential that the AU, through its member states, provide the necessary financial support for the ACtHPR.
Coalition for an Effective African Court (CEAC)
The Coalition for an Effective African Court (CEAC) was formed in May 2003 in Niamey, Niger during the first conference to promote the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and Peoples’ Rights. CEAC is made up of individuals, non-governmental organisations, and independent national human rights institutions with an interest in and commitment to a strong human rights protection mechanism in Africa. CEAC’s main objectives are to secure full ratification of the Protocol establishing the Court; ensure that judges are nominated and elected in a transparent manner; provide a forum for civil society to actively participate in the establishment of the Court; and provide technical support to the African Union (AU) and the Court.
Since 2003 CEAC has undertaken a number of strategic activities geared towards the effective functioning of the continent’s first human rights Court. CEAC has tenaciously advocated for the consideration of issues affecting the Court during the Sessions of the African Commission on Human and Peoples’ Rights. It has also undertaken a number of awareness-raising programmes with governments and research on the need to nominate competent judges to the Court in line with the AU’s guidelines on nominations. CEAC also made an input on the Interim Rules of Procedure of the Court. Following the AU’s decision to merge the human rights Court with the Court of Justice, CEAC submitted proposals on the instrument to merge the two Courts. The final draft Protocol merging the Courts included a number of recommendations made by CEAC. The CEAC, through its focal points, has also undertaken campaigns at the national level to lobby countries to ratify the Protocol establishing the African Court. These countries include Cape Verde, Congo, Namibia, Nigeria, Senegal, South Africa, Uganda and Kenya. From these campaigns, the Protocol came into force in January 2005. Consequently, 7 states also ratified the Protocol as a result of the CEAC’s efforts.
CEAC is managed by a nine-member Executive Committee headed by a Chairperson. The Committee operates through a Secretariat, Coordinator, focal points and liaison advisors. IHRDA is currently the focal point on National Human Rights Institutions (NHRIs). IHRDA served as Chairperson of CEAC from 2007 to 2008. For more, visit CEAC’s website, www.africancourtcoalition.org.
Role of CEAC Focal Point on NHRIs
IHRDA’s role as focal point on NHRIs falls into three categories: the provision of technical assistance to NHRIs; the creation and fostering of broader links amongst members of the CEAC; and acting as a facilitator to the business of the CEAC and its members. Within this broad mission, IHRDA hopes to ensure that NHRIs assume a foremost role in their various countries in publicising the Court as a credible continental human rights protection and enforcement mechanism. This, IHRDA would achieve through supporting NHRI programmes in training, education, information documentation and dissemination, research, advocacy, lobbying and networking. All this is geared towards making the Court accessible to all Africans.
In fulfilment of its mission and role as focal point, IHRDA participated in the 6th Annual Conference of the Network of African National Human Rights Institutions held in Kigali, Rwanda from 8th to 10th October 2007. IHRDA also participated in the 9thInternational Conference of National Human Rights Institutions held in Nairobi, Kenya from 21st to 24th October 2008.
IHRDA has also developed a strong working relationship with the Secretariat of the Network of African National Human Rights Institutions. IHRDA is currently working with the Secretariat to develop a Plan of Action to increase African NHRIs’ engagement with the African human rights system.
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