The African Court on Human Rights (ACHR) is the most recent of the three regional human rights judicial bodies alongside the Inter-American court and the European Court of Human Rights. The ACHR was established in 1998 by a protocol, 12 years after the entry into force of the African Charter on Human and Peoples' Rights, concluded in 1981 in Banjul, Gambia, under the aegis of the Organization of African Unity (OAU). The Protocol establishing the ACHPR finally entered into force on January 1, 2004 upon its ratification by fifteen member states. A total of 15 member states have ratified it.
What does the coming into force of the court mean to the women of Africa with regards to the optional protocols? To put this into context, we need to familiarize ourselves with the intent, structure and functioning of the Court.
Article 27 of the optional protocols charges the Court with interpretations arising from the application or implementation of the protocol. The entering into force of the Optional Protocols in November 2005 and the protocol establishing the African Court is an important step in building up the protection of human rights, especially that of women. Without a proper legal framework, prevention is practically impossible. It is hoped that the Court will exert a dissuasive power on member states, have a preventive effect and combat immunity.
The appointments of eleven judges to the court in January 2006 and the coming into effect of the Protocol itself are a qualified success because they are coming at the back of the regional human rights instrument, The African Charter and the more recent Optional protocol.
The African Charter has had low visibility because the African Commission which has promotive and protective functions under the Charter was slow in finding its feet. The absence of a supranational court with enforcement powers has been a singular failure in the credibility of the African Charter as a serious human rights guarantor. It is hoped that the establishment of the African Court which is endowed with enforcement powers will greatly complement the mandate of the Commission. There is still a long way to go for the court to be effectively set up, function independently and develop its own jurisprudence.
Provision on the jurisdiction of the Court
The Court according to Articles 3 and 4 is empowered to act both in a judicatory and advisory capacity. Article 5 provides for the Court’s rationale personae -- or its personal jurisdiction which comprise two types of jurisdiction – compulsory and optional. With regards to the compulsory jurisdiction, the following are entitled to submit to the court: The African Commission; The Complainant State Party; The Defendant State Party; The State party whose citizen is a victim of human rights abuse and the African Intergovernmental organizations. The protocol also provides for optional jurisdiction in relation to cases submitted by individuals or NGOs with observer status before the African commission. It is the optional provisions of the court which should most concern us.
For the court to receive an individual petition, the state against which the complaint is made must first have recognized the competence of the court. This is not a very enabling state of affairs since most issues affecting women are of individual or NGO optional jurisdiction category. The new judicial framework should grant the individual or NGOs easy access to the Court.
With the provision of Article 34.6, it is unlikely that states will rush to recognize the court’s competence even after ratifying to allow for examination of individual petitions. It seems likely therefore that the court’s jurisdiction would basically be reduced to the examination of inter-state communications, in contradistinction to the European Court which is assigned compulsory competence to examine petitions from individuals who have been victims of human rights violation.
With regards to the court’s other jurisdiction subject matter jurisdiction (rationae materiae), it is competent to hear all cases concerning the interpretation and application of the African Charter, the Optional Protocol to the Charter and any other human rights instrument, provided these are ratified by the states concerned. Its other power is to render an opinion at the request of a member state or an organization recognized by the African Union on any legal matter relating to the African Charter or any applicable African Human Rights instrument. Much as these advisory opinions are not binding, they could serve as a reference for a progressive interpretation of the African Charter, the Optional Protocols and other conventions.
The ACHPR is unique on the standing of individuals and NGOs with regards to advisory functions. Advisory opinions can be asked for by not only member States or the AU organs, but by any African NGO that has been recognized by the AU, provided that the State at issue has made a declaration accepting the jurisdiction of the Court to hear such cases. This is a provision that, if the AU recognizes NGOs liberally, might eventually strengthen the ACHPR's promotional function.
On contentious jurisdiction, individuals can bring cases if the above declaration has been made by the State at issue. This is a step forward from the Inter-American Court, where individuals have no standing at all, but it is still far from the progressive attitude of the new European Court of Human Rights.
Composition, Procedure and Judgment of the Court
Even though there is a recommendation for adequate gender representation in the nomination of candidates – only two of the eleven jurists elected in January are women. One is an excellent lady judge from Ghana. The other woman is from Lesotho, while the third is from Uganda. The protocol is rather short on providing answers to all procedural questions including its relations and workings with the African Commission. The effectiveness of the court will to some extent depend on the skills and clear-sightedness with which its rules and procedure are drawn up. Judgments are decided by majority and are not subject to appeal. It is incumbent on civil society and NGOs to press for gender sensitivity and full awareness of all the rights that the African Charter and the Optional protocol aim to protect. The success of the court will depend on the will of states to honor and execute the decision of the court.
Pursuant to the Constitutive Act of the African Union, the ACHPR was originally to be one of two separate courts for the organization. However, in July 2004 the AU determined that the ACHPR should be merged with the African Court of Justice, the charter of which has still not come into force. In July 2005, the AU Assembly decided that a draft instrument be created to establish the merged court. The former President of the International Court of Justice, Algerian Minister of Foreign Affairs, Mohamed Bedjaoui, is doing it.
Despite the non-ratification of the Protocol on the Court of Justice, the AU is set to proceed with the establishment of the ACHPR without further delay; the operationalization of the court registry and determination of budget allocation will be overseen by the Commission. The other issue is the attempt to water down the court and reduce the number of jurists for the spurious reason of lack of funds!!
To ensure that the court is properly set up and fully empowered to perform its functions efficiently and judiciously, governments should be pressurized to ratify the Protocol to the ACHPR; make declarations accepting the jurisdiction of the court over cases brought by individuals and NGOs; staff and fund the African Court; and ensure that the Court addresses issues of specific concern to gender and female victims of human rights abuse.
The coming into force of the Court as well as the Optional Protocol is a great cause for optimism. They are enabling instruments for civil society, policy makers, governments and NGOs that would like to rally around the cause of remedying the injustices perpetrated against African Women and which threaten their lives and health and rob them of their dignity.
By Dr Eunice Amissh Brookman
Vice President for Africa
Indiana Protection and Advocacy Services
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