Handout on African Court on Human and Peoples' Rights. Prepared by Johnson Yesaya Mgelwa.

 

PRELIMINARY

The African Court on Human and Peoples’ Rights is a judicial body that delivers binding judgments on compliance with The African Charter on Human and People’s Rights[1] and its Protocols and in conformity with other Universal Human Rights Conventions and Protocols such as Universal Declaration of Human Rights[2] and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[3]. African Court was established under Article 1 of the Protocol[4] in 2004 and has its permanent seat in Arusha, The United Republic of Tanzania. The African Court has jurisdiction over 26 member states of African Union (A.U) who has ratified The Protocol to the African Charter on Human and People’s Rights on The Establishment of an African Court on Human and People’s Rights (the protocol). The court hears cases from Libya, Lesotho, Malawi, Algeria, Burkina Faso, Burundi, Cote d’Ivoire, Gambia, Tanzania, Ghana, Comoros, Congo, Gabon, Kenya, Mali, Mozambique, Mauritania, Mauritius, Nigeria, Niger, Uganda, Rwanda, South Africa, Senegal, Togo and Tunisia.

The Protocol to the African Charter on Human and People’s Rights on The Establishment of an African Court on Human and People’s Rights was adopted for the first time in 1998 in Burkina Faso and came to force in 2004 after being ratified by the first 15 member countries. The court was established to complement and reinforce the functions of the African Commission on the Human and People’s Rights. The African Commission or Banjul Commission is a quasi-judicial body given administrative powers over the charter, it was impossible for it to operate alone and to have judicial powers without actual court hence it was necessary to establish African Court on Human and People’s Rights. The court has powers over interpretation of the charter and all cases arising from breach of the articles of the charter. In its decision, the court applies provisions of The African Charter on Human and Peoples Rights and other Human Rights Instruments ratified by the states concerned. The African Court on Human and Peoples Rights while making decision, is not hand tightened to make reference to other persuasive International or Regional Human Rights Instruments or legislations, it may make reference to those instruments in complementing The African Charter on Human and People’s Rights.

RATIONALE FOR ESTABLISHMENT OF AFRICAN COURT

The Charter of the Organization of African Unity^[5] does not establish any judicial body to entertain cases relating to Human Rights violation by state, organizations or individual perpetrators. The African Court on Human and People’s Rights came as a judicial arm of the African Union[6] where now matters relating to human rights violation were settled under this court. The core purpose for the establishment of the African Court was to safeguard the human and peoples’ rights in Africa principally through delivery of court judgments. The court work hand in hand with The African Commission on Human and People’s Rights. The commission is quasi-judicial body imposed with charter monitoring functions hence works closely to African Court particularly in matters falling in jurisdiction of both African Court and African Commission. On another hand, the court has mandate to complement and reinforce the functions of the African Commission on Human and Peoples’ Rights by using court orders with the same effect to Commission decision.

The relationship between The Court and The Commission is provided under Article 2 of The Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights,[7] Rule 29 of the Court’s Interim Rules of Procedure 2010 and Part IV of the Rules of Procedures of the Commission 2010[8]. Article 2 of The Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights provides that, The African Court shall complement the protective mandate of The African Commission on Human and People’s Rights conferred upon it by The African Charter on Human and People’s Rights. Also, the relationship between African Court and Commission can be evidenced through several dealings of these two bodies such as the ability of the Commission to transfer matters from its hands to African Court, when court decides anything its judgment must be transmitted to the Commission, the African Commission may on its own motion submit a communication to the African Court in respect of serious violations of human rights, the African Commission may take control of the communication at any stage of the consideration by the African Court if thinks proper to do so, the Court may seek the opinion from the Commission when deciding on issues of admissibility, and in drawing its own rules of procedures, the African Court is required to consult the Commission[9].

Apart from safeguarding the human rights in Africa, another reason for establishment of African Court on Human and Peoples Rights was to introduce an African forum to deal with human rights cases as a regional body with jurisdiction on Human Rights cases in Africa rather than depending on other human rights foreign forums. The Court is among three regional human rights court together with the European Court of Human Rights and the Inter-American Court of Human rights. The establishment of the court can be considered as joining forces by African countries in global measures to safeguarding human rights and to give effect to the international instruments on Human Rights in Africa[10].

JURISDICTION OF THE AFRICAN COURT ON HUMAN AND PEOPLE’S RIGHTS

As per Article 3 of the Protocol[11], the jurisdiction of The African Court is extended to include all cases and disputes submitted to it concerning the interpretation and application of The African Charter on Human and People’s Rights, its protocols and all other international and regional human rights instruments that state have ratified[12]. The court is also given advisory powers under Article 4 of the Protocol[13] and it can issue legal advice to any member of OAU, the OAU itself and any of its organs, or to any African Organization recognized and given reputation by OAU. The court may provide any legal opinion in relation to the charter or any other relevant human right instrument provided that, the subject matter of the opinion is not related to a matter pending determination by the African Commission on Human and People’s Rights. The advice is limited to the matter pending determination by Commission so as to avoid prejudice to the Commission and to avoid influence of the court to the determination of the matter pending the African Commission.

The Court may hear and determine any matter falling within its jurisdiction except if there is some procedural impropriety. Basing on Article 56 of The African Charter on Human and People’s Rights[14] and Article 6 of The Protocol to African Charter, the court must consider a number of factors when determining admissibility of a case before it. Before accepting a case, the court must consider the propriety of application if applicant submitted communication within reasonable time after the alleged violation/s and whether the available domestic remedies has been exhausted by the applicant before rushing to African Court. The African Court must conduct investigation to determine if the subject matter brought for hearing and determination is in dispute or is already settled by states, the court do not deal with cases which have been settled by states involved in accordance with the principles of the Charter of United Nations, or the Charter of the organization of African Unity or any other charter ratified by the states concerned. The Court may seek an opinion from the African Commission on Human and People’s Rights when deciding on the admissibility of direct communications submitted by individuals and Non-Governmental Organizations.

THE COMMUNICATION TO THE AFRICAN COURT

As per Article 5 of the Protocol[15], the communication to The African Court on Human and People’s Rights may be lodged by African Commission or other African intergovernmental organizations, or by states complaining against another state(s) on violation of human rights of its citizen(s), individuals and non-Governmental organizations may make communication to the Court basing on requirements set out under Article 5(3) of the Protocol. Other states with interest in the case or states who are party to the Court’s Protocol may join the proceedings if they want to.  Basing on Article 56 of The African Charter on Human and People’s Rights^[16] and Article 6 of The Protocol to African Charter, admissibility of the communication to the court depends on a number of factors, the communication must indicate the names of authors even if the letter request anonymity, communication must be compatible with the Charter of The Organization of African Unity or The African Charter on Human and People’s Rights, must be written in proper language which is not insulting to state authorities or African Unity, communication must not be made exclusively based on the news disseminated by mass media and must be made on the subject matter which is in dispute and not matters which are already amicably settled by parties[17].

CONCLUSION

The African Court is required under Article 10 to conduct its proceedings in public where people are allowed to attend and hear the matter, the court may conduct proceedings in camera as it may be provided in the rules of procedures. Parties are entitled right to legal representation of their choice and if necessary for the sake of justice, the court may offer free legal representation. Any person who is a witness or representative of the party in a case before court enjoys protection, privacy and all facilities for the purpose of the case basing on international laws. The African Court must be composed of eleven sitting judges who are nationals of the member states of OAU elected basing on their individual capacity from the judges of high moral character with reputation and who have good knowledge of human rights matter. No two judges of the same state should form bench of the African Court judges.

The cases before court involves written phase, and it may order oral phase where parties are allowed to make submissions, presents exhibits and calls witnesses. The protocol requires the court to issue decision after 90 days of the completion of hearing. If the court finds that there was violation of applicant’s human rights, it may order payment of compensation to the victim of the said violation or it may order provisional measure if the applicant was seriously affected by the violation of his rights which may be incapacitated the applicant.

 

 

REFERENCES

BOOKS.

R. Kamuli, “Human Rights in Tanzania: Standard and International Obligation” P.30-40

The Constitution of United Republic of Tanzania of 1977, as amended. Article 12-24.

CONVENTIONS

UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at: https://www.refworld.org/docid/3ae6b3a94.html [accessed 9 July 2022]

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 9 July 2022]

Organization of African Unity (OAU), African Charter on Human and Peoples' Rights ("Banjul Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), available at: https://www.refworld.org/docid/3ae6b3630.html [accessed 9 July 2022]

Organization of African Unity (OAU), Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights, 10 June 1998, available at: https://www.refworld.org/docid/3f4b19c14.html [accessed 9 July 2022]

Organization of African Unity (OAU), Charter of the Organization of African Unity, 25 May 1963, available at: https://www.refworld.org/docid/3ae6b36024.html [accessed 9 July 2022]

OTHER SOURCES

African Court on Human and People’s Rights, “Basic Information”, available at https://www.african-court.org/wpafc/basic-information/ [accessed 9 July 2022]

African Court on Human and People’s Rights, “African Court”, available at https://www.african-court.org/wpafc/basic-information/ [accessed 9 July 2022]

ACHPR, “Relationship between the Court and the Commission”, available at https://rb.gy/pjypoo [accessed 9 July 2022]

 

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[1] Organization of African Unity (OAU), African Charter on Human and Peoples' Rights ("Banjul Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), available at: https://www.refworld.org/docid/3ae6b3630.html [accessed 9 July 2022]

[2] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 9 July 2022]

[3] UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at: https://www.refworld.org/docid/3ae6b3a94.html [accessed 9 July 2022]

[4] Organization of African Unity (OAU), Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights, 10 June 1998, available at: https://www.refworld.org/docid/3f4b19c14.html [accessed 9 July 2022]

[5] Organization of African Unity (OAU), Charter of the Organization of African Unity, 25 May 1963, available at: https://www.refworld.org/docid/3ae6b36024.html [accessed 9 July 2022]

[6]African Court on Human and People’s Rights, “African Court”, available at https://www.african-court.org/wpafc/basic-information/ [accessed 9 July 2022]

[7] Ibid

[8] ACHPR, “Relationship between the Court and the Commission”, available at https://rb.gy/pjypoo [accessed 9 July 2022]

[9] ISS Africa, “Relationship of the African Commission and the African Court with other key entities”, available at https://issafrica.org/chapter-6-relationship-of-the-african-commission-and-the-african-court-with-other-key-entities [accessed 9 July 2022]

[10]IJR Centre, “African Human Rights System”, available at https://ijrcenter.org/regional/african/ [accessed 9 July 2022]

[11] Ibid

[12]Justice Initiative, “African Court on Human and People’s Rights”, available at https://www.justiceinitiative.org/publications/african-court-human-and-peoples-rights [accessed 9 July 2022]

[13] Ibid

[14] Ibid

[15] Ibid

[16] Ibid

[17]African Court on Human and People’s Rights, “Basic Information”, available at https://www.african-court.org/wpafc/basic-information/ [accessed 9 July 2022]