The Court was created in response to the limitations faced by the African Commission of Human and Peoples' Rights in its mandate to protect and defend human rights, namely stemming from its lack of enforcement capability. Rather than replacing the Commission, however, the Court is to complement and strengthen the work of the Commission. Unlike the Commission, however, which applies to any AU country that has ratified the Charter, the Court can only oversee cases involving states that have ratified the establishment protocol. While all 53 states of the AU have ratified the Charter, only 25 have ratified the establishment protocol as of May 1, 2010.
The potential merger is a confusing start to the establishment of a body capable of enforcing human rights recommendations, and there are fears the human rights aspect of the merged court will be perceived as “second class” to sovereignty and other disputes the court will oversee. However, the merger is positive in that the cost savings could mean more funds are available for the pursuit of accountability in human rights violations and the court will overcome duplication issues between the Court of Justice and the Court on Human and Peoples' Rights.
The African Court of Human and Peoples' Rights will remain operational until the merger Court replaces it, a development that is not expected to occur until at least 2013. The merger was decided in the interests of cost savings and efficiency, as well as cutting down on the number of legislative mechanisms the already overburdened AU is expected to oversee. The current human rights court is located in Arusha, Tanzania and the merged court will also be based here.
The Court of Justice and Human Rights will be comprised of 16 judges, eight of whom must be human rights law experts. The African Court of Justice and Human Rights was established by the Protocol on the Statue of the African Court of Justice and Human Rights aka “the merger protocol”. At least 15 AU states must ratify this protocol for the new court to come into effect. As of 1 May, 2010, 21 countries have signed the merger protocol, but only two have ratified it.
In terms of its human rights applications, the Court of Justice and Human Rights is expected to apply law and act procedurally in a manner quite similar to the Court of Human and Peoples' Rights. This guide refers to the currently operational Court of Human and Peoples' Rights unless otherwise noted.
The court can gather its own evidence in a case by sending a mission to the place where the violations occurred. In addition, the Court protocol allows for “experts” to testify in cases, which could conceivably include an organisation's representatives. In interpreting the law, the Court refers to the African Charter on Human and Peoples' Rights as well as any other legal human rights instrument, including UN instruments that have been ratified by the state concerned. Court documents will be available in the AU's four official languages (Arabic, English, French and Portuguese) and proceedings can be conducted in any of these languages. The hearings of the Court are public, barring “exceptional circumstances,” such as death threats against witnesses or matters that threaten national security.
When ruling on a case, the court will order remedies appropriate to the violation(s). Remedies could include, for example, an order to repeal or change a law or to provide victims with financial compensation. Unlike the Commission, in which there is no set limit in which decisions need be made, the Court has 90 days from the conclusion of deliberations to issue a judgement. In addition, the judgment will stipulate that a state must implement the Court's remedies within a given time frame. The judgement of the African Court is not subject to appeal; however cases can be reviewed in light of new evidence.
While the Commission has no follow-up mechanism to measure compliance, the Executive Council of the African Union has the mandate to monitor the implementation decisions of the court. When a state is found to be non-compliant, the Executive Council will recommend sanctions, which may, for example, affect trade or transport links.
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.
In addition, the Court will apply any other declaration or mechanism the state being brought before the Court is party to, or has signed, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which both enshrine the right to free expression and free press. Conventions or treaties signed by the state involved that concern specific human rights topics may also be useful to the process. For example, the Convention on the Elimination of Discrimination Against Women protects women's access to the media.
Only states that have ratified the establishment protocol can be brought before the Court. Click here to see which states have ratified this protocol. When the new African Court of Justice and Human Rights replaces this court, only those that have ratified the merger protocol fall under the court's jurisdiction. Click here to see which states have ratified the merger protocol.
- Member states of the AU who have ratified the establishment protocol
- NGOs and individuals provided that the case concerns a state that has declared the competence of the court to hear cases brought by individuals and organisations under 34(6) of the establishment protocol. (Only Malawi and Burkina Faso have thus far approved organisations and individuals to access the court.)
- African National Human Rights Institutions (NHRI)
- African Intergovernmental Organisations accredited to the Union or its organs
- The African Committee of Experts on the Rights and Welfare of the Child
Organisations must first ensure that the state concerned has allowed NGOs and individuals to petition the court (see 'Who can bring a case to the Court?'). Furthermore, the case must comply with the seven requirements of Article 56 of the African Charter, which stipulate that domestic remedies have been exhausted and the case is not being pursued in other regional or international courts, among other requirements. (For more, see IFEX's elaboration of these seven requirements in the Guide to Submitting a Complaint to the Commission).
In addition to the seven requirements, plaintiffs must ensure the following:
- the violation occurred after the ratification of the establishment protocol
- the complaint concerns only one matter
- the plaintiff's submission notes whether there is a level of urgency to the case requiring provisional measures
- any evidence such as letters, legal documents, autopsies, etcetera are included in the submission, along with any information on potential witnesses
- a summary of the facts of the case and the evidence that will be put forth are provided
- if known, the right(s) violated is/are clearly stated, along with the orders or remedies sought
- the names and addresses of the applicant's designated representative are included, as well as the identification information of the party or parties against whom the application is being brought.
Petitioning authorised parties to bring cases before the court
Even when organisations do not have direct access granted to them under 34(6) of the establishment protocol, groups can appeal to have cases heard in the following ways:
- Organisations can appeal to National Human Rights Institutions (NHRI) and the African Committee on the Rights and Welfare of the Child to submit cases to the court. Organisations can provide evidence, reports and expert witnesses in such cases.
- If such an approach is likely to be effective in the particular case, organisations may wish to appeal to other parties authorised to petition the court, including member states and intergovernmental organisations
- NGOs can encourage the Commission to send missions to investigate reported mass violations of human rights. If serious and wide-scale abuses are occurring, the Commission will refer the case to the Court.
- Organisations should monitor the implementation of the Commission's recommendations and provisional measures of states and report non-compliance to the Commission. If the Commission decides states are not complying to its recommendations, it will refer the case to the Court.
- Organizations should lobby member states to include the declaration and continue to put pressure for more ratification.
2.In contrast to similar human rights courts such as the European Court of Human Rights and the Inter-American Court of Human Rights, the protocol for the Court leaves it up to the state to decide whether individuals or organisations can launch cases against it. Only two states have made declarations allowing individuals and organisations to petition the court, therefore for all other states, suits can only be brought by other member states, intergovernmental organisations, the Commission and national human rights institutions. For the Court to truly become a significant arbiter in human rights, the individual victims of violations must be given the right to access the Court.
- Join the Coalition for an Effective African on Human and Peoples' Rights or support their work in other ways. The Coalition is made up of more than 350 NGOs from all over Africa, including the Media Institute of Southern Africa (MISA), the Media Monitoring Project Zimbabwe (MMPZ) and the Nairobi-based African Journalist Commission on Human Rights (CHARJ). This coalition, which is supported by the Open Society Institute, continues to work to open up the court to individuals and organisations. Visit http://www.africancourtcoalition.org/
- Lobby states to make a declaration allowing individuals and NGOs the right to submit to the court. (States should make this declaration under both Article 34(6) of the establishment protocol and Article 30(f) of the merger protocol.)
- Call on member states to ratify the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human Rights and the Protocol on the Statute of the African Court of Justice and Human Rights. (See 'Who can be brought before the Court?')
- NGOs can reinforce the mandate of the Court by and providing additional surveillance of states in regards to their implementation of provisional measures and judgements, once such decisions have been made.
- Groups should lobby states to nominate judges who have extensive human rights experience. Organisations should publicise and call for the Court's intervention in cases where states attempt to exert influence on judges.
- Organisations may wish to raise legal assistance funds in certain cases. (The Court may also be able to provide some legal assistance to victims.)
- Organisations can aid in an investigative mission if the Court decides to conduct further research in this way.
- Groups can raise awareness about the Court among partner organisations, the public and the media, especially in regard to the need for states to declare the court competent to rule on cases brought to it by organisations and individuals.
Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human Rights (the establishment protocol):
Protocol on the Statue of the African Court of Justice and Human Rights (the merger protocol):
Official Site of the African Court on Human and Peoples' Rights:
Coalition for an Effective African on Human and Peoples' Rights:
Guide to the African Court (Coalition for an Effective African on Human and Peoples' Rights):
Wachira, George Mukundi. “African Court on Human and Peoples' Rights: Ten years and still no justice” Minority Rights Group International:
10 keys to understand and use the African Court on Human and Peoples' Rights (FIDH):