The African Court on Human and Peoples’ Rights (AfCHPR) is the main judicial body charged with human rights protection in Africa. It was established by a protocol to the African Charter on Human and Peoples’ Rights in 1998 and judges were first elected in 2004 after the protocol came into force.
The AfCHPR is composed of 11 judges elected 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 AfCHPR was created in response to criticism that the viability of the ACHPR, and by inference, the African human rights system, was seen to be severely impaired by 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 AfCHPR acts in an adjudicatory and advisory capacity. Article 3 of the Protocol declares that the AfCHPR’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”. 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 AfCHPR to receive such communications.
The right of individuals to seek redress is gravely affected by this provision, as at October 2012, only Burkina Faso, Ghana, Malawi, Mali and Tanzania 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 AfCHPR has a definitive role to play in the protection of human rights on the continent, as it has the capacity to pass binding decisions against States found in violation of human rights guarantees. 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 AfCHPR 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 within 90 days of completion of its deliberations and judges may deliver dissenting opinions.
The decisions of the court will be binding and the AU Council of Ministers is to monitor the implementation of the decision, thus injecting a political element into enforcement.