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The African Court of Justice and Human Rights: An Opportunity to strengthen Human Rights Protection

Masterarbeit 2010 88 Seiten

Jura - Europarecht, Völkerrecht, Internationales Privatrecht

Leseprobe

Contents

Summary

Acknowledgments

Abbreviations

1 Introduction
1.1 Background of the Study
1.2 The Purpose of the study
1.3 Statement of the problem and Research Questions
1.4 Methodology
1.5 Scope of the study
1.6 Overview of the chapters

2 Human Rights Protection in Africa: Historical Perspective
2.1 The Evolution of Human Rights in Africa
2.2 The Creation of the OAU: Sovereignty vs Solidarity
2.3 The OAU and Human Rights
2.4 The Codification of the Banjul Charter: The Rights of the Peoples’
2.5 Rights and Duties of Man under the Banjul Charter: Questioning Universality?
2.6 The African Union and Human Rights: The way forward
2.7 Persisting Human Right Problems in Africa: Past to Present

3 Judicial and Quasi- Judicial Human Rights Institutions in Africa
3.1 Quasi-Judicial Human Rights Institutions
3.1.1 The African Commission on Human and Peoples’ Rights
3.2 Regional Human Rights Judicial Institutions: From Dream to Reality
3.2.1 The African Court on Human and Peoples’ Rights
3.2.2 The African Court of Justice
3.2.3 The African Court of Justice and Human Rights
3.2.3.1 The Protocol on the Statute of the African Court of Justice and Human Rights
3.2.3.2 Statute of the African Court of Justice and Human Rights
3.2.3.2.1 Structure and Composition of the Court
3.2.3.2.2 Jurisdiction of the Court
3.2.3.2.3 Decision Making and Enforcement Mechanisms
3.3 Sub-Regional Human Rights Judicial Institutions
3.3.1 Sub- Regional Economic Communities and their Respective Judicial Organs
3.3.1.1 The Economic Community of West African States and the Community Court of Justice
3.3.1.2 The Common Market for Eastern and Southern Africa and the Court of Justice
3.3.1.3 The East African Community and the East African Court of Justice
3.3.1.4 Southern African Development Community and the Tribunal

4 The African Court of Justice and Human Rights: Challenges and Prospects
4.1 The Relationship between the Court and the African Commission
4.2 The Role of the Court in Rectifying the Pitfalls Left by the Commission
4.3 The Relationship of the Court with other Sub-Regional Judicial Institutions
4.3.1 Divergent Normative Interpretation
4.3.2 Forum Shopping
4.3.3 Pros and Cons of a Two-Layered Regional Human Rights Judicial System in Africa
4.4 Normative and Institutional Challenges and Prospects of the Court
4.4.1 Normative Challenges and Prospects
4.4.2 Institutional Challenges and Prospects
4.4.2.1 Lack of Individual and NGO Standing
4.4.2.2 Limited Number of Ratifications
4.4.2.3 Problem of Enforceability
4.4.2.4 Financial Constraint
4.4.2.5 Can the Court address the Sources of Human Rights Challenges in Africa?
4.4.2.6 Absence of Provision for ‘Class Action’
4.4.2.7 Inability of States to access the Court for Advisory Opinion
4.4.2.8 The Problem of Failed and Failing States

5 Conclusion and Recommendations
5.1 Conclusion
5.2 Recommendations

Bibliography

Table of Cases

Summary

Taking in to consideration the countless human rights violations and impunity in Africa, there is not a shred of doubt about the dire need for effective human rights protection mechanisms at continental level. This concern has mainly increased due to the Africa Commission’s poor track record of enforcement of human rights norms in the region. Hence, it is in the effort to cure the ills suffered by this system that an endeavor to build a regional human rights judicial organ has been embarked on. The process of establishment of the African Court of Justice and Human Rights (ACtJHR) is also the extension of this effort which partially became successful with the transitional operation of the African Court on Human and Peoples’ Rights.

The primary purpose of this study is, thus, to show how the ACtJHR would be relevant in promoting and protecting human rights in the continent. An attempt is also made to investigate whether the new Court will be a solution to fill the gaps left out by the African Commission in the regional human rights enforcement mechanism. In doing so, the study has made a thorough analysis of the prospects and challenges of the ACtJHR from different vantage points. It has also addressed the possible interaction between the two main regional human rights actors, i.e., the ACtJHR and the African Commission. The study has also touched up on the link between the sub-regional judicial institutions and the African Court on human rights matters.

Acknowledgments

First of all, praise be to Almighty God for he carried me through all the challenges I had went through, relieved me of my worries and made me who I am today!

I would like to extend my heartfelt gratitude to my advisor, Dr. Daniel Kuwali, for his encouragement, guidance and invaluable comments. He has been a source of immense inspiration throughout the processes. Many thanks to Jimma University and the Nuffic NFP Project without whose financial support I would not have been able to pursue my Master’s study.

I am also greatly indebted to my friend Yodahe Tesfaye, who has humbly lent his hand in editing the thesis. Yodi we made it! My deepest appreciation goes to my closest friends Zekiros T.himanot and Mesganaw Mulugeta who have been by my side in all the times of happiness and sadness, hope and despair. You have a big place in my heart.

Lastly, I would like to say thank you to all members of Lund Ethio-Eritrea Fellowship for you made my stay in Lund memorable. Guys, you really helped me grow up both mentally and spiritually-I really owe you a great deal!

Abbreviations

Abbildung in dieser Leseprobe nicht enthalten

1 Introduction

1.1 Background of the Study

The continental organization in Africa ,i.e., the erstwhile Organization of African Unity(OAU) and today’s African Union(AU)-had been sharply criticized by the international community regarding the manner in which they were handling human rights violations, especially since the violations were largely committed by the organizations’ members. When these human rights violations reached the apex and began to backfire on the international recognition and reputation of the former organization, the OAU reacted in 1981 with the adoption of the African Charter on Human and Peoples’ Rights (the Banjul Charter).[1] The Banjul Charter was ratified by all OAU Member States.[2] The Banjul Charter not only guarantees civil, political, economic, social and cultural rights but also puts forward collective rights as well as individual duties.

The only mechanism created under the Banjul Charter to supervise the State Parties’ compliance is the African Commission on Human and People’s Rights (African Commission), which commenced its work in 1987. Hence, the demand for the reform of the African human rights mechanisms began right afterwards as the African Commission could not be an effective enforcement institution mainly due to lack of sufficient protective power.[3] Consequently, the demand for a judicial authority became increasingly louder in the face of the Commission’s lack of achievements. In the Assembly of Heads of States and Governments, the OAU has acknowledged the general ineffectiveness of the human rights mechanism.[4] Hence, on 10 June 1998 the OAU’s Heads of States and Government conference adopted a supplementary Protocol to the Banjul Charter which provides for the establishment of an African Court on Human and Peoples’ Rights, entered in to force on 24 January 2004. The establishment of the Court is mainly to compliment the protective mandate of the African Commission by issuing binding decisions and ordering specific remedies.

Following the advent of the African Union, a counterpart to the previous court would be the establishment of the African Court of Justice under the AU organizational structure. Art 18 of the Constitutive Act of the African Union (the AU Act) provides for the establishment of the Court of Justice of the Union. Accordingly, the Protocol of the Court of Justice of the African Union, was adopted by the Organization on 3 July 2002.This court is meant to play a role in the process of regional economic integration similar to the European Union Court of Justice.[5] However, this court never came to existence.

In the mean time, through a decision of the Assembly of Heads of States and Government meeting in Addis Ababa between 6 and 8 July 2004, the African Union (AU) decided that the hitherto separate courts with continental jurisdiction –the African Court of Human and Peoples’ Rights and the African Court of Justice-should be integrated in to one court.[6] The decision was based on the need to rationalize the two courts and to make them cost effective.[7] Accordingly, the African court of Justice and Human Rights was adopted at the July 2008 AU summit. As the Court has not seen the light of day yet, the main theme of this study is to analyze the possible prospects and challenges of this court in improving the poor human rights protection enforcement mechanisms in Africa as it becomes operational.

1.2 The Purpose of the study

In the face of countless human rights violations and impunity in Africa, there is no doubt about the dire need for effective human rights protection mechanisms at a continental level.[8] Ysir Said Ahmed Hassan, the outgoing Vice-Chair of the African Commission on Human and Peoples’ Rights, remarked during the 42nd Ordinary Session of the African Commission in Congo Brazzaville, in November 2007 that ‘the general human rights landscape on the African continent remains a cause of grave concern .From East to West, North to South, the African Commission on Human and Peoples’ Rights continues to receive complaints on violation of all categories of Human Rights’.[9] This concern has increased due to the Commission’s poor track record of enforcement of its decisions, which could mainly be ascribed to its quasi-judicial status.

From the 1990s, champions of human rights and victims of human rights violations in Africa pushed for the establishment of a judicial institution that would be effective in protecting human and peoples’ rights in the continent.[10] The hypothesis is that the effort is going to pay off with the establishment of the African Court of Justice and Human Rights. The African court is established with the ultimate purpose of promoting peace, security, stability and protection of human rights on the continent.[11] Hence, this study is meant to show how this regional court would be relevant in promoting and protecting human rights in the continent. In general, the study seeks to distil the issue that, whether the court is a mere promise on the paper for Africans or can it achieve the ultimate goal of creating effective system of human rights protection in Africa as its European counterpart has managed to.

1.3 Statement of the problem and Research Questions

The establishment of a judicial body is perceived by many African scholars and human rights activists as the sole and ultimate solution to ameliorate human rights protection in the continent. The preamble of the Single Protocol, which has merged the African Court of Human and Peoples’ Rights and the African Court of justice, also dictates that one of the major goals of the newly established court is the promotion of human rights and peace on the continent. As Charles Fombad, a Professor of Law at the University of Botswana, rightly noted: ‘[a]s democratization swept through the continent, it generated expectation of a new dawn and the end of era of corruption, authoritarian and incompetent dictatorship that had earned the continent notoriety for political instability, civil wars, famine, disease and similar ills.[12]

However, the question here is that, could the court fulfill the expectations of being an absolute and ultimate solution-a panacea for the improvement of continental human rights protection and enforcement system? Hence, the specific questions that will be addressed in this study are:

1. What roles can the African Court of Justice and Human Rights play in improving continental human rights protection and enforcement mechanisms?

2. Can the African Court be a solution to fill the pitfall left by the African Commission in regional human rights enforcement mechanisms?

1.4 Methodology

This study addressed the specific research questions through both critical analysis and comparative approaches, simultaneously. It has compared the African regional human rights judicial system with the most advanced European system which enabled the researcher to identify the strengths and weaknesses of the system under scrutiny. In making the critical analysis, the researcher has resorted to literature review of secondary sources including books and journal articles and also consulted and interpreted primary sources, which include different regional and international human rights conventions and protocols, soft laws and other relevant reports and documents. Desktop research and case analysis has also been employed.

1.5 Scope of the study

The study mainly concentrates on analyzing the role of the African Court of Justice and Human Rights in promoting regional human rights protection and enforcement system. In doing so, it gives a brief historical overview of regional political, quasi-judicial and judicial organs which have directly or indirectly contributed to human rights protection efforts in the continent. It also tries to analyze the relevant provisions of the Single Protocol which established the African Court of Justice and Human Rights (ACtJHR). However, the research is not intended to analyze nor describe the African human rights history and protection systems. The study is also not intended to serve as a commentary to the detailed provisions of the Single Protocol. What the study seeks to examine is the means and effectiveness of the African Court in human rights protection in Africa.

1.6 Overview of the chapters

Chapter two of this research gives a brief historical overview of the evolutionary development of human rights in Africa. This chapter provides a picture of the journey of building a systematically arranged and institutionalized human rights protection and enforcement system in Africa in order to facilitate an understanding of the scope of this study.

Chapter three is devoted to the existing and upcoming human rights protection and implementation mechanisms in Africa. A thorough discussion of both quasi-judicial and judicial human rights institutions at the continental and sub-regional levels is made. This chapter mainly helps to understand the major human rights protection and enforcement actors in Africa.

Chapter four dwells on the in-depth analysis of the prospects and challenges of the African Court of Justice and Human Rights (ACtJHR or the Court) from different perspectives. It mainly analyzes the possible interaction between the two main continental human rights actors, i.e ., the ACtJHR and the African Commission of Human and Peoples’ Rights (the African Commission) and the relationship between sub-regional judicial institutions and ACtJHR. Furthermore, the chapter embarks on a thorough analysis of normative and institutional challenges of the Court. Finally, chapter five winds up the discussion with conclusion and key recommendations.

2 Human Rights Protection in Africa: Historical Perspective

2.1 The Evolution of Human Rights in Africa

This chapter gives a brief historical overview on the evolutionary development of the concept of human rights in Africa which helps to fully understand the theme of this study.

As any other body of law, the human rights regime cannot be detached from prevailing political, social, economic and cultural conditions on a given region- particularly when it is understood that the struggle for human rights and the establishment of a human rights system are products of a concrete social struggle.[13] This fact has also been reflected on the evolution of human rights discourse in Africa. The pioneer organized effort towards the protection of human rights in Africa was conceived by the early Pan-Africanism movement. The proponents of Pan-Africanism had shown concern for human rights among the colonized people.[14] The first conscious effort to put a link between human rights against colonialism and human rights on the one hand, and between Pan-Africanism and human rights on the other hand was made at the Fifth Pan-African congress.[15] The movement called among other things, for the abolition of all racial discrimination, freedom of expression, assembly and of the press, and free compulsory education up to age sixteen.[16]

Nevertheless, the idea of drafting a human rights convention, with an organ charged with its implementation, started to come in to picture in the 1960s.[17] The idea to establish an African Commission on Human Rights was put forward for the first time during the First Congress of African Jurists.[18] The Congress adopted a declaration known as ‘The Law of Lagos’, which called on African governments to adopt a convention on human rights with a court to which any individual under the jurisdiction of a State party could refer a case.[19] The declaration, however, was not warmly welcomed by the addresses as most African States emphasized on political emancipation of the continent, which resulted in the creation of a regional institution called the Organization of African Unity (the OAU).

2.2 The Creation of the OAU: Sovereignty vs Solidarity

After significant numbers of African countries were librated from the yoke of colonialism, the idea of creating a regional organization came into picture.[20] However, as States could not reach a consensus regarding the nature of the regional organization, what resulted was the split of Africa in to two Camps called the ‘Monrovia’[21] and the ‘Casablanca’[22] blocs. The former advocates a ‘more classical’, ‘con-federal’ approach, which aimed at preservation of sovereignty in the framework of much looser arrangement.[23] While the latter group, under the leadership of Ghana’s president Nkrumah, subscribed to the more federalist Casablanca charter for economic cooperation, emphasizing elements of self-defense and the urge to eliminate colonialism.[24]

Having this extremely divergent point of views, heads of State and government of the then 32 independent States met in Addis Ababa, Ethiopia, by the initiative of Emperor Haile Selassie I of Ethiopia in May 1963. The meeting resulted in the creation of the Organization of the African Unity, which was ‘a product of compromise’.

Thirty independent States, except Morocco and Togo, were represented at the Constituent Assembly when the argument for and against federalism were again advanced.[25] Nevertheless, the ‘Monrovia’ group’s view point of African Unity, based on close co-operation among sovereign States, ultimately prevailed in the Charter.[26] The OAU Charter thus capitalized the sovereign nature of the member States and the principle of non-interference in the domestic affairs of the same.[27] However, the Casablanca group was not out rightly rejected as the OAU Charter reflects its view on colonialism, apartheid and racialism, and the establishment of the Libration Committee-responsible for providing aid to national liberation movements-was a direct result of its persistence.[28] Thus, the OAU Charter was a result of compromise among the two groups with predominant views of the ‘Monrovia’ group.[29]

2.3 The OAU and Human Rights

As is already discussed above, even before the formation of the OAU, advocates of Pan-Africanism had shown concern for human rights among the colonized peoples. Hence, with the establishment of the OAU after the formation of the United Nations (UN) and the adoption of the Universal Declaration of Human Rights (UDHR), one would have rightly expected that the ideals that drove Pan-Africanism would also strengthen the promotion of human rights.[30] Nevertheless, the OAU Charter makes a very limited reference to human rights. In the preamble, the members affirm their belief in the fact that, freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspiration of African people. Furthermore, member States explicitly dictated that the principles of the UN Charter and the UDHR provide a solid foundation for peaceful cooperation among States. Article 2 of the Banjul Charter also underscored the promotion of international cooperation, having regard to the UN Charter and the UDHR, as one of the mission of the organization. The Banjul Charter also provided the coordination and intensification of efforts to achieve a better life, welfare and well-being of Africans as purpose of the Organization.[31]

In spite of its expressions on human rights, the OAU Charter did not proclaim individual rights for African people.[32] It also did not explicitly include human rights as part of the OAU’s mandate.[33] Rather the OAU Charter was so much concerned with the eradication of colonialism and dismantling of apartheid.[34] The practical mission of OAU had been political unity, non-interference in the internal affairs of the member states and libration of other African territories which were under the yoke of colonialism.[35] Thus, the only success stories that can be told regarding protection of human rights by the OAU are: eradication of colonialism and the realization of the right to self determination, the struggle against apartheid in South Africa and other human rights initiatives involving refugees and conflict resolution.[36]

Hence, due to the non-interference clause in the Charter, the OAU and its member states had been reluctant and cautious to criticize massive and notorious breaches of human rights in specific African countries with notable exception of South Africa and Namibia,[37] which in turn discredited the organization for employing double standard in the same continent. Though strong pressure had been put from NGO’s and the International Community, the OAU failed to condemn the massacres which occurred in-among others- Uganda, the Central African Republic, Equatorial Guinea, Burundi and Angola.[38]

For example, the deposed Ugandan President Milton Obote wrote a letter from his exile to the OAU’s secretariat with the request to forward it to the delegates at the Assembly of Heads of State and Government in 1973. In his letter, he accused Idi Amin of rampant state sanctioned human rights violations in Uganda. However, this letter was never been forwarded to the Assembly of Heads of State and Government.

The nasty human rights abuses in Republic of Equatorial Guinea were also left untold and unseen by the OAU. The well known dictator Macias Nguema ordered political prisoners to be buried up to their heads in the ground so that they would be bitten to death by ants.[39] The executions of the prisoners were organized as a mass event and accompanied by pop music.[40]

The OAU and its member states justified their silence on such breach by relying on the domestic jurisdiction principle of the charter.[41] African leaders adopted a narrow interpretation of the UDHR and other international instruments which contends that the human rights instruments were for the purpose of promoting peaceful and positive international cooperation.[42]

The silence with in OAU and its member States was broken for the first time when Tanzania expressly opposed and boycotted the Assembly of Heads of States and Government held in Kampala (Uganda) in spite of Amin’s atrocities committed on Ugandans.[43] The Tanzanian government reacted in a very strong way and even published their opinion[44] through the information ministry stating that:

‘It is not surprising that the whole of Africa cries out against the atrocities of the colonial and racist states. […] But when massacres, oppression and torture are used against Africans in the independent States there is no protest anywhere in Africa. There is silence even when crimes are perpetrated by or with connivance of African Governments and the leaders of African States. […] The OAU never makes any protest or criticism at all. […] Now, by meeting in Kampala, the Heads of State of OAU are giving approval over what has been done, and what is still being done, by General Amin and his henchmen against the people of Uganda. […] The reason given by African leaders for their silence about these things is the non-interference clause in the OAU Charter. […] Why is it legitimate to call for the isolation of South Africa because of its oppression, but illegitimate to refuse co-operation with a country like Uganda, where the Government survives because of the ruthlessness with which it kills suspected critics?”

This opinion of the Tanzanian government critically analyzed the OAU’s policy regarding human rights violation among its member States and most importantly magnified the double standard employed by the organization on the matter.

Hence, as the severity and sensationalism of human rights violations reached the pick and the criticism against the OAU for its failure to condemn human rights violations in African States widened in range across Africa as well as from the international community, the organization was bound to adopt Decision 115.[45] Under Decision 115, the OAU Secretary General was entrusted to organize a restricted meeting of highly qualified experts to prepare a preliminary draft of an African Charter on Human Peoples’ Rights. In addition, human rights enforcement organs were also to be included under the Charter.

2.4 The Codification of the Banjul Charter: The Rights of the Peoples’

In accordance with decision 115 and at the invitation of the Senegalese government, the OAU Secretary General organized a conference in Dakar from 28 November to 7 December , 1997-a conference bringing together twenty African experts under the presidency of the Honorable Judge Keba M’Baye , the then President of the Supreme Court of Senegal. This group of experts was fully charged with the task of preparing the first draft of the African Charter. At this point President of Senegal, Leopold Sedar Senghor, in his opening speech at the experts meeting emphasized that the Charter was to reflect the history, values, tradition and the economic development of the continent. He specifically stated that:

“Europe and America have construed their system of rights and liberties with reference to a common civilization, to respective peoples and to some specific aspirations. It is not for Africans either to copy them or to seek originality for originality’s sake. It is not for us to manifest both imagination and skill. Those of our traditions that are beautiful and positive may inspire us. You should therefore constantly keep in mind our values and the real needs of Africa.”[46]

He also equally emphasized that a special place shall be given to the right to development, which according to him, embraces economic, social and cultural rights as well as civil and political rights.[47]

The experts were also cautioned not to produce a charter on the rights of the ‘African man’ in spite of the conviction to produce a charter that reflects African realities.[48] It was correctly reasoned that “mankind is one and indivisible and the basic need of all are similar everywhere.”[49] These remarks and advice of President Senghor greatly highlighted the terms of reference of the experts for the document to be produced.[50]

The committee managed to produce a draft text containing a preamble and 65 Articles within ten days taking in to account the political and ideological diversity of the OAU’s member States.[51] The final draft of the document was submitted to the meeting of the Justice Ministers in Banjul (Gambia) and was adopted and entitled as ‘Banjul Charter’.[52] On 27 June, 1981, at its 18th General Assembly meeting held in Nairobi, Kenya, the African Charter on Human and Peoples’ Rights was approved by the OAU Heads of States without change. Nevertheless, the Banjul Charter under Art 63(3) provides that it would enter in to force after the simple majority of the OAU members (26 out of 50 at the time) ratified and submitted the ratification documents to the General Secretariat. Hence, it was five years after its passage that the necessary majority quorum was achieved with the deposition of the Nigerian document with the OAU General Secretariat. Thus, the Charter entered in to force on October 21, 1986.

2.5 Rights and Duties of Man under the Banjul Charter: Questioning Universality?

The African charter is seen as a ‘unique’ document among existing human rights instruments because it depicted an ‘African’ concept of right.[53] This most of the time triggers the question that whether the ‘Africanist’ Philosophy of the Charter retreats from the universalism towards ‘African culturalism’ or ‘cultural relativism’.[54] Hence some considered the African system as a fertile ground to challenge the universality of International Human Rights Law.

However, in the author’s view, the Banjul Charter intends to integrate the African values with international norms, as it has important and basic similarities with other international instruments. For example, the preamble reaffirms the pledge of African states to promote international co-operation “having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights” and their “adherence to the principles of peoples’ and human rights and freedoms contained in the declarations, conventions and other instruments adopted in the context of the United Nations”.[55] In addition, as President Senghor emphasized at the drafting experts meeting, only positive values that are in line with universal principle of equality of all mankind shall be taken in to account.[56] Thus, the Charter has followed a very innovative approach in reconciling regional cultural values with universal principles of human rights.

The uniqueness is further illustrated by, for example, the inclusion of civil and political rights, economic, social and cultural rights and peoples’ rights in one document treating them as indivisible, and the incorporation of provisions relating to duties of the individual.[57] The civil and political rights guaranteed by the Charter include: the right to due process and the freedom from ex post facto laws, equal protection of laws, the freedom of conscience, religion, expression, assembly, association and the right to participate in a government.[58] The treaty recognizes the right to asylum and prohibits the mass expulsion of non-nationals. Moreover, the treaty also guaranteed economic, social and cultural rights[59] which include, right to property, right to work, the right to equal remuneration for equal work and the right to education.

As already mentioned above, the African Charter also stipulates collective rights[60] and individual duties,[61] which distinguish it as a unique regional human rights document. The Charter provides the right of people to self determination and to full sovereignty over their natural resource. The treaty imposes a duty on individuals towards their family, community and State.

Nevertheless, the major drawback of this innovative regional instrument is the imprecise ‘claw back’ clauses attached to most of the rights. For example, under Article 6, it provides that “[e]very individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reason and condition laid down by law. […].” Arguably the claw back clause attached to the provision leaves room for flexibility in construction and application by the enforcement organs, including the Commission and the Court.

2.6 The African Union and Human Rights: The way forward

The new regional organization for Africa, the African Union (AU),[62] came in to being, succeeding the discredited organization of African Unity (OAU).[63] This replacement of the OAU with AU was made with aim of building a more dynamic regional organization capable of preserving and building up on OAU’s achievements and of promoting Africa’s role in the twenty-first Century.[64] The wave of globalization, which started after the end of the Cold War, bound the OAU to redesign its strategy in view of economic cooperation and integration. In 1990, the OAU summit passed a resolution regarding the situation in Africa in view of the global change, and admitted the “real danger of marginalization of our continent”.[65] In order to address this concern of the region, the Sirte Declaration-from which the idea of ‘African Union’ esteemed- sought to address in an effective manner the new social, political and economic realities in Africa through a new regional organization. Thus, AU is not only a regional political organization but also it is meant to address economic and social concerns of the continent. In this sense, it is taking the wider political, social and economic view that the European Union (EU) now encompasses; and it is widely argued that it was the EU that was said to have served as the AU’s model.[66] Hence, the AU is also meant to accelerate the process of economic unity earlier began by the Treaty of the African Economic Community (AEC).[67]

The very unique nature of the AU from its predecessor is that human rights and democratic values are the founding principles of the former which can be witnessed from, unlike the OAU Charter, the Constitutive Act as it makes express references to these core principles.[68] The AU made human rights an explicit part of its mandate, as enshrined in its Constitutive Act, and mainstreamed human rights in all its activities and programs.[69]

The preamble to the Constitutive Act stipulates that human rights will play a more central role in the work of the union than they did in the OAU. It specifically states that the AU undertakes to “promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and rule of law”. Unlike the OAU Charter, this commitment in the AU Act is not merely limited to the preamble rather it has been broadly enshrined in the Organization’s objectives, under Article 3 and 4 of the Constitutive act. The central objectives, under Article 3, of the Union noted that the Organization has the mandate of promoting democratic principles and institutions, popular participation and good governance,[70] and the promotion and protection of human rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments.[71] It also recognizes that there is a need to “encourage international co-operation, taking due account of the charter of the United Nations, and the Universal Declaration of Human Rights.”[72]

Looking in to the guiding principles of the organization under Article 4 of the Act, it emphasizes that States should respect the need for “peaceful coexistence of member States and their right to live in peace and security”[73] promote gender equality, have respect for democratic principles, human rights, the rule of law and good governance, condemn unconstitutional change of government.[74] Furthermore, the organization has detached itself from the traditional barriers of non-interference and indifference. The AU is given the right to intervene on grounds of war crimes, genocide and crimes against humanity, in member states, when the summit conference has adopted an appropriate resolution.[75]

It appears therefore that the main distinguishing features of AU from the OAU is the fact that the promotion and protection of human rights is a central objective of the AU organs;[76] and will enable human rights to play a greater role in the organization.

In addition to this, the AU has enriched the African human rights protection system by continuously adopting human rights instruments and at the same time strengthening the existing institutions or establishing new ones for their implementations.[77] Among these mechanisms are the Pan-African Parliament (PAP), the Economic, Social and Cultural Council (ECOSOCC), the Peace and Security Council (PSC), the African Peer Review Mechanism (APRM) and ACtJHR.

2.7 Persisting Human Right Problems in Africa: Past to Present

In this section the author will try to highlight the major human rights challenges that have persisted in the continent for centuries. These challenges are believed to be the main causes for the poverty and backwardness of the continent. The multidimensional faces of the challenges and the multiplicity of the problems combined with the weakness and poor arrangements of the human rights enforcement organs made the continental human rights mechanisms ineffective and inefficient to tackle the challenges.

The first problem, which can also be taken as the root cause of other human rights challenges, is internal and inter-state conflicts prevailing in the region. Several wars are going on, which lead to untold suffering of women, children and other civilians, unprecedented fellow of refugees and internally displaced people, genocide and other related human rights and humanitarian violations. To mention some, the continent is confronted with: conflicts in the Democratic Republic of Congo (DRC), Darfur and Somalia; a long standing unresolved boarder dispute between Ethiopia and Eritrea that could erupt in to a full-scale war any time; agile militia and rebel movements in Niger delta and in Uganda-DRC-Sudan-Central African Republic-Chad region; piracy of the Somali coast and the Gulf of Guinea.[78]

The use of child soldiers in these conflicts is a common scenario. In 1999, a report by the coalition to stop the use of child soldiers estimated that more than 120,000 children from ages seven to seventeen were being exploited as soldiers throughout Africa.[79] Some of these children voluntarily joined government or revolutionary armed groups, but tens of thousands of them were forced to become soldiers at gun point.[80]

Amnesty International also reported that twenty-four African countries had serious and widespread human rights violations in 1998 and that armed conflicts leading to dreadful human rights abuse throughout the continent.[81] The United Nations High Commissioner for Refugee estimated that in 1998 there were about 3.5 million refugees in Africa; eighty percent of them women and children under the age of five.[82]

These wars, more often than not, involve element of genocide in them. The good example for this is the 1994 state-sponsored genocide in Rwanda which caused the demise of an estimated 800,000 Tutsis and moderate Hutus.[83] Reports also show elements of genocide in the frictions in the DRC and Burundi.

The other un-tackled human rights challenge in course of these conflicts is the human rights abuses by non-State actors, whose responsibility is not clearly determined under international law. Rampant human rights abuses are committed by rebels and guerilla movements. For example, in Uganda, massive violations, including killing, abduction, mutilations and rape as well as destruction of property, are committed by rebels called the Lord’s Resistance Army in the North and west part of the country.[84] Rebel fighters in countries like Burundi, Sudan (SPLA) and the DRC are also known for the atrocities they commit on innocent civilians.[85] The currently ongoing atrocities committed by Islamic fundamentalists like the Al-Shabab in Somalia have also greatly undermined the human rights enforcement effort in the continent.

The problem of failed and failing States is also another challenge to the effective enforcement of human rights in Africa. Civil strife has led to the demise of states like Somalia thereby leaving its people in a country without a central government for more than a decade. Like any other non-state actor, the responsibility of these warring factions in the failed states is not defined under international law, which makes both international and regional human rights enforcement mechanisms ineffective.

The above stated problems are also accompanied and fueled by corruption, mismanagement of resources, monopoly of power, lack of judicial and press autonomy, racism, poverty, disease, religious intolerance and debt crisis all having a great implication on human rights of the people of the continent.

Hence, the question here is that how these complicated human rights problems of deep historical root can be tackled through the current international and regional enforcement organs? These questions will be addressed in the subsequent discussions with specific reference to the role of the newly established African Court of Justice and Human rights.

3 Judicial and Quasi- Judicial Human Rights Institutions in Africa

In this chapter the author will elaborate on the existing and upcoming human rights protection and implementation mechanisms in Africa. This comprises of quasi-judicial and judicial institutions-the African Commission on Human and Peoples’ Rights (the African Commission) established under the Banjul Charter and the African Court of Justice and Human Rights (ACtJHR) established under the ‘single protocol’ merging the African Court on Human and Peoples’ Right and the African Court of Justice. The chapter will also touch up on sub-regional judicial organs; especially those expressly or tacitly conferred with human rights jurisdictions.

3.1 Quasi-Judicial Human Rights Institutions

The idea to create a quasi-judicial regional human rights enforcement organ in Africa can be traced back to the colonial times, i.e., before the entire continent was librated. As already been discussed elsewhere, the idea to establish an African Commission on Human and Peoples’ Rights was put forward for the first time during the first congress of African Jurists organized under the auspices of the International Commission of Jurists (ICJ), in January 1961, in Lagos, Nigeria.[86] Nevertheless, the idea had not been implemented until the coming in to existence of the Banjul Charter.

3.1.1 The African Commission on Human and Peoples’ Rights

Part II Chapter I of the Banjul Charter established the African Commission on Human and Peoples’ Rights as the sole quasi-judicial enforcement organ of the same. The Commission began operating in 1987 with broad promotional and quasi-judicial mandates.[87]

Quasi-judicial functions include, in the first place, the interpretative power of the Commission conferred under Article 45(3), which states that the Commission is empowered to “interpret all the provisions of the present Charter at the request of state party, an institution of the OAU or an African organization recognized by the OAU.” Secondly, it includes the Commission’s protective functions. The Commission may resolve disputes involving allegations of human rights violations.[88] The Commission may entertain both inter-State,[89] and individual communications.[90] Though at the earlier years of the Commission’s work some commentators questioned the existence of the Commission’s mandate to consider individual communications, two months later at its third session, the Commission, in one of its bold action to date, made its position clear by accepting communication from individuals.[91] The protection mandate of the Commission also includes the examination of State Party Reports.

Looking in to its promotional mandate under Article 45(1) of the Banjul Charter,[92] the Commission has the power to collect documents, undertake studies and research, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights and, should the case arise, give its views or make recommendations to governments. It has also the power to formulate and lay down principles and rules aimed at resolving legal problems relating to human and peoples’ rights and fundamental freedoms and to cooperate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights;[93] This function of the Commission can also be taken as a quasi-legislative mandate of the Commission.[94]

However, having all the broad mandates of protection, interpretation and promotion, the Commission is sharply criticized for its limited success in protecting human rights in the continent. Bakker suggests that the Commission’s lack of funding, the luck of independence of the commissioners,[95] the fact that much of the Commission’s work has been shrouded in secrecy, the Commission’s inability to provide genuine redress to victims of human rights violations,[96] and the lack of follow- up in relation to decisions of the Commission have all contributed to this state of affairs. The Commission’s inability to publicize its reports without the consent of the Assembly of Heads of State and Government- which usually they deny- also put the Commission in a disadvantaged position to enforce its recommendations, at least by utilizing public pressure. Especially, the lack of an effective remedy in relation to communications led to the view that the only satisfactory solution seems to be an amendment of text of the Banjul Charter or the creation, by special protocol, of another body, i.e., a regional human rights court which can deliver binding decisions.[97]

3.2 Regional Human Rights Judicial Institutions: From Dream to Reality

The interest to create a formal regional judicial organ (a human rights court) can be traced back to the 1960s, when African jurists assembled in Lagos, for an African ‘Conference on the Rule of Law’. One of the recommendations and resolutions proposed by the Conference was the establishment of a court with appropriate jurisdiction to which recourse would be available to all persons under the jurisdiction of the signatory states.[98] However, this effort remained in vain as the subsequent OAU Charter did not come up with a human rights framework or any human rights mechanism at all.

However, the issue resurfaced after twenty years, during the deliberation immediately preceding the adoption of the Banjul Charter in 1981.[99] A proposal introduced by Judge Keba M’Baye did not include the institution of court, explaining that it is ‘thought premature to do so at this stage’.[100] It added that as the idea is good and useful, it could be introduced in the future through additional protocol to the Charter.[101] Hence, the Charter was accompanied by the African Commission as a sole enforcement mechanism.

Various reasons are proposed as to why African States opted for supervision solely by the African Commission rather than following in the footsteps of the European and Inter-American systems which have dual supervisory mechanisms. The main criticism forwarded by the opponents of the idea of court is that it was not in line with African traditional ways of dispute resolution.[102] They argue that mediation and conciliation were the proper fora as they are rooted in the African tradition and culture.[103] Thus, the Commission with larger conciliatory function was more in harmony with African dispute resolution mechanism than a court. However, Nmehielle asks “[w]hy should it be in the area of human rights that Africa traditional consideration should prevail? Domestic legal institutions have been modeled far from African traditional ways of dispute resolution; they rather duplicate the various legal systems of Africa’s colonial past.”

Therefore, the closer look gives another picture. According to Bekker, self-interest and preservation of the status quo played a predominant role in the decision to create a commission, rather than make provision for the dual supervisory mechanism that had been shown to be relatively effective elsewhere. It was the preoccupation of African states with the principle of non-interference that made the drafting committee of the Charter to come up with a weak enforcement mechanism, which is also in accordance with Art2 of the OAU Charter-to “defend sovereignty, territorial integrity and independence”.

3.2.1 The African Court on Human and Peoples’ Rights

Especially, in the second half of the 1990s, advancement of democracy in several African States, which includes, Namibia, Malawi, Benin, South Africa, Tanzania and Mali; and the poor enforcement track record of the African Commission made the need for a stronger domestic and regional guarantees for protection of human rights indispensable.[104] This paved the way for the acceptance of a continental human rights court, which gave life to Art 66 of the Banjul Charter with the establishment of the African Court on Human and Peoples’ Rights (through an additional protocol)-a judicial body intended to reinforce the safeguards mechanisms instituted by the African Charter in 1981.

The Assembly of heads of State and Government of the OAU has acknowledged the general ineffectiveness of the African human rights mechanism.[105] Hence during its summit in Tunis, Tunisia in June 1994, the Assembly adopted a resolution which called up on the Secretary-General to summon experts to meet on the establishment of an African Court of Human Rights.[106] This led to series of meetings and consultations in an effort to come up with an additional protocol to the Banjul Charter on the establishment of the court.[107] Finally, the discussions and meetings ended up with a fruitful result with the adoption of the protocol on the establishment of a regional human rights court at the 34th session, held in Ouagadougou (Burkina Faso) from 8 to 10 June 1998 by the OAU Assembly of Heads of State and Government. With this, the movement that has been incepted at Lagos in 1961 came to reality.

As per Article 34(3) the protocol enters in to force after fifteen instruments of ratification or accession have been deposited. Six years have been spent in order to fulfill this requirement, which made the establishment process very lethargic. Finally, the protocol entered in to force on 25 January 2004, following the deposit of the fifteen necessary-state ratifications. The first eleven judges of the court were sworn in on July 2006, at the 7th Au summit;[108] and the court has been installed in Arusha, Tanzania. On December 15, 2009 the court gave its first judgment in the matter of Michelot Yogogombaye v. The Republic of Senegal (Application No. 001/2008.[109] In this historical case the court decided that it lacked jurisdiction as per Art 34 (6) of the protocol to the African Charter on Human and Peoples’ Rights establishing the African Court on Human and Peoples’ Rights; since Senegal has not subscribed to the jurisdiction of the court that grants individuals the opportunity to institute cases directly before the court.

However, presently this court is in the process of merger with the African Court of Justice, established under the Constitutive Act of the African Union, following the decision by member States in the meeting at Addis Ababa, Ethiopia, between 6 and 8 July 2004.

3.2.2 The African Court of Justice

Article 18 of the Constitutive Act of the AU provides that a court of Justice of the Union shall be established being one of the organs of the Union. The Court is intended to be the principal judicial organ of the Union with authority to rule on disputes over interpretation of AU treaties; with AU organs and members being eligible to file case.[110] The process of drafting the protocol establishing the Court of Justice commenced in 2002, two years after the adoption of the AU Constitutive Act, with the draft being approved by a Ministerial Conference in June 2003 at Grand Baie , Mauritius. Finally, it was adopted by the Assembly of heads of State and Government in Maputo, Mozambique on 11 July 2003. However, pursuant to Article 60 of the establishing protocol, deposition of instruments of ratification by 15 member states is a prerequisite for the protocol to enter in to force after 30 days. Six years were spent in the process of securing the necessary number of ratification, in which finally the protocol entered in to force on 11 February 2009. Presently the protocol has been ratified by 16 member states.

Nevertheless, it appears most likely that this court will be superseded by the ‘Single Protocol’ creating a Court of Justice and Human Rights, which will incorporate the already established African Court of Human and Peoples’ Rights.

3.2.3 The African Court of Justice and Human Rights

As stated above the African Court of Human and Peoples’ Right and the Court of Justice were to be established as two separate institutions, as a treaty body and as an organ of the AU respectively. Nevertheless, in July 2004 at Addis Ababa, Ethiopia and July 2005, Sirite, Libya, the AU Assembly decided to merge the two courts in order to ensure adequate resources to fund a single continental court.[111]

Along with the resource justification, the equally weighty argument that was raised is that, although the two courts were different in their purpose and mission-one being destined for State disputes and the other for human rights disputes- there were potential areas of common jurisdiction; and that they were not in fact mutually exclusive to each other.[112] The African Court of Justice, for example, also enjoyed jurisdiction, in matters of human rights such as the freedom of movement by nationals of a member State in the territory of another member State.[113] Similarly, it enjoyed jurisdiction to enforce the right to property.[114] Many other examples can be mentioned to illustrate the overlapping jurisdictions between the two courts.

Furthermore, the merger of the two courts would help the newly established court to integrate human right principles in all its decisions, which is a key path in order to implement the principles of the right to development enunciated under the AU Constitutive Act and the New Partnership for Africa’s Development (NEPAD).

Finally in July 2008 the AU summit adopted the protocol on the Statute of the African Court of Justice and Human Rights (‘the Single Protocol’) at its 11th ordinary session at Sharm El-Sheikh, Egypt. The new court is governed by two main instruments, i.e., the Protocol and the Statute of the Court of Justice and Human Rights (the Statute). The Protocol deals with ‘establishment and transitional matters’, i.e., it replaces the previous courts, establishes the single African Court of Justice and Human Rights in place of the two courts. And the Statute to the Protocol established the jurisdiction of the court, composition and the procedure for election of the judges and other similar procedural matters.

3.2.3.1 The Protocol on the Statute of the African Court of Justice and Human Rights

Art 2 of the protocol establishes the ACtJHR and Article 9 (1) provides that it shall enter in to force 30 days after the deposition of the instrument of ratification by 15 member States.[115] During the deliberation on how to merge and replace the court of Justice and African Court on Human and Peoples’ Rights, which is effected under Article 1 of the ACtJHR protocol, the main challenge that was raised by participants as well as human rights activists was that, what would be the fate of the Judges that were already been elected for the Court of Human Rights? Should the need for continental human rights judicial organ be restrained for another unlimited period of time?

Fortunately, this issues and concerns have effectively been addressed by the Single Protocol under the chapter entitled “Transitional Provisions”. The protocol allowed for the modus operandi till after the coming into force of the new protocol. Accordingly, Art 4 of the protocol allowed the judges of the Human and Peoples’ Rights Court to remain in office until the newly elected judges of the ACtJHR are sworn in. The protocol also addressed the issue of pending cases before the present Human Right Court under Article 5.[116] As per this provision the replacement does not affect ongoing cases even after the new court has become operational.

It is in accordance with this decision under the Single Protocol that the Human Peoples’ Rights Court continued its operation and even dealt with the historical case of Michelot Yogogombaye v. The Republic of Senegal, in which it has passed decision on admissibility on 15, December 2009.

In spite of the light shaded up on the merger process by the Single Protocol, there are still issues that need further clarification. For example, Hansungule asks that “ why did the AU not take the route of leaving it open for sates that had already ratified the protocols establishing the two courts to carry over their instruments and deem them deposited for the new court, instead of asking them to start the process afresh?” He also wondered that if the peoples’ part of jurisdiction is missing from the new court as the word ‘peoples’’ is missing from some of the provisions of the merger protocol.

I do agree on the first point raised by Hansungule, however; regarding the jurisdictional question on the ‘peoples’’ right paused by him, Article 17 (2) of the Statute of the court clearly states that the human rights section of the court is competent to hear all cases relating to human and/or peoples’ rights. Furthermore, Article 28(c) of the statute confers jurisdiction on the court regarding cases related to the interpretation of the Banjul Charter, a regional human rights instrument which addresses both human and peoples’ rights.

3.2.3.2 Statute of the African Court of Justice and Human Rights

The statute of the court is attached to the single protocol establishing the court which consists of seven chapters and 60 Articles. This instrument is destined to regulate matters such as the organization of the court, competence of the court, procedure and the likes of these. Nevertheless, the discussion in this sub-section will be limited to the organization and jurisdiction of the court as the study is not meant to serve as a commentary for the protocol.

3.2.3.2.1 Structure and Composition of the Court

The court is organized in a way that it will address both the justice and human rights interests at the same time and in a very balanced way. It is composed of a General Affairs Section and a Human Rights Section, each composed of eight judges.[117] The General Affairs Section will have competence to hear all matters except those concerning human rights/ or peoples’ rights.[118] The Human Rights Section will be competent to hear all matters relating to human and/or peoples’ rights.[119] The Statute also puts a possibility in which one of the sections may “if it deems it necessary refer the case to the full court for consideration[120] though the circumstance is not clearly stipulated under the Statute.

The Statute of the court provides for 16 judges, who are to be nationals of State parties;[121] this is different from the protocol establishing the African Court of Human and Peoples’ Rights, which allowed the possibility of nomination of a non-national to the bench[122] as well as the European practice of recruiting at least one judge from outside Europe.[123] The quorum for the ‘full court’ is nine; whilst quorum for section is six.[124]

The Statute requires the judges to be ‘impartial and independent and elected from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to highest judicial offices, or are juris-consults of recognized competence and experience in international law and/ or human rights law.[125] This condition allows the court to attract persons with experience from both African judiciaries, as well as from amongst the renowned academic experts on international law and human rights.[126] However, according to Hansungule, much emphasis is put up on the personality of the judges while the major difficulty encountered by African judiciaries is the question of independence. Hence consideration of conditions under which the judge is operating in his/her national jurisdiction is overlooked. There should be something in the Statute that requires a certain minimum standard to apply to State parties in terms of level of democracy and the rule of law as a condition for them to qualify for nominating a practicing judge to the court.[127]

The judges are to be elected by the Executive Council and appointed by the Assembly, who are responsible for ensuring equitable regional and gender representation.[128]

3.2.3.2.2 Jurisdiction of the Court

I. Subject Matter Jurisdiction

The Statute under the Single Protocol has combined the subject-matter jurisdictions of the Human and Peoples’ Rights Court and the Court of Justice under Article 28. Accordingly the court shall have jurisdiction over all cases and all legal disputes submitted to it in accordance with the present Statute which relate to: a)the interpretation and application of AU Act; b) the interpretation, application or validity of other AU Treaties and all subsidiary legal instruments adopted within the frame work of the AU; c) the interpretation and application of Banjul Charter, the Charter on the Right and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Right of Women in Africa, or any other legal instrument relating to human rights ratified by state parties concerned; d) any question of international law; e) all acts, decisions, regulations and directives of the organs of the AU; f) all matters specifically provided for in any other agreements that State Parties may conclude among themselves, or with the AU and which confer jurisdiction on the African Court; g) the existence of any fact which; if established, would constitute a breach of an obligation owed to a state party or to the AU; h) the nature or extent of the repatriation to be made for the breach of an international obligation.

Looking in to the long list of subject matter jurisdiction under Article 28, it is easy to understand that the court is generously provided with a very broad mandate. Especially, it is a very innovative feature of the Statute when it includes “agreements State parties may conclude among themselves”. This enables the court to stretch its hand on bilateral agreements between State parties, as long as the parties to the agreement priority agreed on this term.[129] The jurisdiction conferred under sub (C) of Article 28 will also enable the Court to exercise jurisdiction on any human rights instrument though they are not specifically mentioned in the Statute.[130]

II Jurisdiction Personae

The jurisdiction persona determines the question that, who can bring cases to the court? This is exhaustively enumerated under Art 29 and 30 of the Statute of ACtJHR. Art 29 of the Statute replicates the jurisdiction personae from the Court of Justice protocol,[131] and entitles state parties, the Assembly, Parliament and other organs of the Union authorized by the Assembly to submit any case to the Court on any issue or dispute provided for in Art 28. A staff member of the AU Commission is also entitled to file an appeal with the Court regarding a dispute, in accordance with the Staff Rules and Regulations of the AU.[132]

Art 30 of the ACtJHR Statute provides for standing on human rights[133] and the following entities shall be entitled to submit cases to the Court on any violation of a right guaranteed by the Banjul Charter, by the Charter on the Right and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Right of Women in Africa, or any other legal instrument relating to human rights ratified by state parties concerned; a) State parties to the present Protocol; b) the African Commission on Human and Peoples’ Rights; c) the African Committee of Experts on the Rights and welfare of the Child; d) African Intergovernmental Organizations accredited to the Union or its organs; e) African National Human Rights Institutions; f) Individuals or relevant Non- Governmental Organizations accredited to the African Union or to its organs, subject to the provisions of Article 8 of the Protocol.[134]

III Advisory Jurisdiction

Art 53 of the Statute also confers advisory jurisdiction on the court. Advisory opinions are allowed on any legal question at the request of the Assembly, the Parliament, the Executive Council, the Peace and Security Council, the Economic, Social and Cultural Council (ECOSOCC), the Financial Institutions or any other organs of the AU as may be authorized by the Assembly.[135] The provision seems to imply that bodies such as the African Commission and African Children’s Committee would either need to gain blanket or ad hoc authorization from the Assembly in order to request an advisory opinion.[136] Furthermore, the Statute does not allow States Parties to seek advisory opinion. Some hold that this exclusion could result in very few requests for advisory opinion being submitted to the court, basing themselves on the experience of the International Court of Justice.[137]

3.2.3.2.3 Decision Making and Enforcement Mechanisms

Decisions of the Court are to be taken by a majority of judges, with a casting vote by the presiding judge in the event of “an equality of votes.”[138] The judges are also entitled to deliver a separate or dissenting opinion if he/she does not represent in whole or in part of the unanimous opinion of the judges.[139] The Statute also bound the judges to state the reason on which their judgment are based[140] and notify the parties of the judgment in the case.[141] However, according to Hansungule Article 43 (6) of the Statute, which mandates the Executive Council to monitor the execution of judgments on behalf of the Assembly, up on notification of judgment is a very innovative provision. It is argued that “this is a direct response to the frustrations over unimplemented African Commission recommendations or decisions.”[142]

Article 46 of the Statute stipulates that “[t]he decision of the Court shall be binding on the parties”, and the decisions of the court are final. Where a party has failed to comply with the judgment, the Court shall refer the matter to the AU Assembly which shall decide up on measures to be taken to give effect to the judgment. Article 23 (2) of the AU Act gives the AU Assembly the power to impose sanction on States that refuse to enforce decisions made by any AU organ, which includes the court.

3.3 Sub-Regional Human Rights Judicial Institutions

It is difficult to say that there exists a pure sub-regional human rights judicial institution in Africa. Rather, the judicial organs of Regional Economic Communities (RECs), primarily established for the purpose of fostering progressive economic integration aimed at improving the living standards of the citizens of member States, have inevitably engaged in entertaining human rights and human rights related matters. This is mainly due to the fact that the realization of economic integration can succeed better in stable conflict free political environment.[143] Further, the creation of this kind of environment in turn depends on the promotion of human rights as a main tool of conflict prevention and control. Hence, the direct or indirect involvement of RECs judicial institutions in human rights matters is inevitable.

Thus, the discussion in this sub section will revolve around the role of the judicial organs of RECs in the protection and promotion of human rights in Africa. This discussion will be used to set the stage for analyzing the relationship of these courts with the ACtJHR at continental level in the next chapter.

3.3.1 Sub- Regional Economic Communities and their Respective Judicial Organs

Africa currently has at least 14 sub-regional integration groupings, with two or more in each sub-region.[144] From this, at the seventh ordinary session of the AU’s Assembly of Heads of State and Government in Banjul, Gambia, in July 2006, the AU officially recognized eight RECs,[145] which consist of;

-The Arab Maghreb Union (AMU)
-The Community of Sahel-Saharan States (CEN-SAD)
-The Common Market for Eastern and Southern Africa (COMESA)
-The East African Community (EAC)
-The Economic Community of Central African States (ECCAS)
-The Economic Community of West African States (ECOWAS)
-The Intergovernmental Authority on Development (IGAD), and
-The South African Development Community (SADC)

The multiplicity of RECs in the continent has resulted in overlapping membership among the above mentioned AU- recognized RECs. This overlapping membership will certainly result in conflicting jurisdiction of the sub-regional courts; including human rights matters. This issue is broadly discussed in chapter four.

As already pointed out above, RECs have the primary role of facilitating a process of economic unity through closer economic and financial cooperation and harmonization of policies and programs. However, this does not mean that they do not work up on issues of good governance and protection of human rights as there is direct link between objective of regional integration through improving the lives of the peoples of member States and the realization of socio-economic rights.[146] The founding instruments of most RECs have also asserted and reflected this fact.

Nevertheless, for the purpose of this study the author will keep focused on RECs which have established fully operational judicial bodies and their role in human rights protection and promotion. These include, ECOWAS, COMESA, EAC and SADC.

3.3.1.1 The Economic Community of West African States and the Community Court of Justice

ECOWAS was formed in 1975.[147] The aim of the organization is to “promote cooperation and development in all fields of economic activities […] for the purpose of raising the standard of living of its peoples […] and contributing to the progress and development of the African continent.”[148] The original treaty was amended in 1993. One of the improvements that have been made to the amended version was the requirement for mainstreaming human rights in the agenda of ECOWAS.

The ECOWAS has the Community Court of Justice (ECCJ) as its main judicial organ. The ECCJ, based in Abuja, Nigeria, has been the most active among the regional courts.[149] The Court was established in accordance with the establishment protocol adopted in 1991 and entered in to force in 1996. The court’s jurisdiction was further extended in order to encompass the determination of human rights cases by a supplementary protocol in 2005.[150] Afterwards, the court began to receive human rights cases on the basis of an extended jurisdiction which enabled it to directly stretch its hand on human rights matters.[151] It is in accordance with this extended jurisdiction that the Court dealt with land mark human rights cases such as Ebrimah Manneh v. The Gambia [152] and Hadijatou Mani Koraou v. Niger.[153]

3.3.1.2 The Common Market for Eastern and Southern Africa and the Court of Justice

COMESA was established in 1993 as a replacement to a predecessor sub-regional economic organization called Preferential Trade Area of Eastern and Southern African States (PTA) of 1981.[154] Despite what its name might indicate, COMESA is not yet a common market.[155] Like the other RECs, COMESA has not put the goal of realizing human rights as its primary objective. However, the treaty establishing COMESA expressly mentioned that human rights cannot be totally detached from its operations. For example, reference is made to ‘the principles of international law governing relations between sovereign states, and the principles of liberty, fundamental freedoms and the rule of law’ in the preamble of the treaty. Further the treaty has expressly required the member States to recognize and observe the rule of law,[156] and to recognize, promote and protect human and peoples’ rights in accordance with the Banjul Charter.[157] Hence, the system has an immense potential for the realization of human rights.

COMESA established a Court of Justice in 1994, as one of its organs, with a mandate to ensure adherence to law in the interpretation and application of COMESA treaty.[158] The Court of Justice has the jurisdiction to hear disputes to which member states, the Secretary-General, or residents of member state (individual and legal persons) may be parties. In 2006, the seat of the court moved from Lusaka, Zambia, to its permanent seat in Khartoum, Sudan.

Both member States and individuals may approach the Court to enquire the legality of any act, regulation, directive, or decision of the council or of Member State on the ground that such act, regulation, directive or decision is unlawful or is an infringement of provision of the COMESA treaty.[159] National courts have concurrent jurisdiction with the COMESA Court on COMESA law, unless jurisdiction has been conferred on the COMESA Court.[160] However, decisions of the COMESA Court have precedence over national court decisions,[161] and national courts can ask the COMESA Court for preliminary ruling concerning the application or interpretation of the COMESA treaty if the Court of the Member State considers that a ruling on the question is necessary to enable it to give judgment.[162] Judgments of the COMESA Court of Justice are final and conclusive, and not open to appeal.[163]

Although the COMESA treaty has dealt with human rights-sensitive provisions at various stages, as stated above, the Court of Justice has not been expressly provided with jurisdiction to entertain human rights cases. Thus, this may cast a doubt as to the prospect of the system in general as well as the Court of Justice in particular to the promotion and protection of human rights in the COMESA region. However, the author is of the view that-like the other REC courts such as the East African Court of Justice and the SADC Tribunal the COMESA-the Court of Justice can also certainly deal with human rights matters on the basis of implicit jurisdiction as the basic human rights principles are already well enunciated in the establishment treaty.

3.3.1.3 The East African Community and the East African Court of Justice

The EAC is the youngest REC in Africa, with its establishment as recently as in 2000. However the history of EAC dates back to 1967, the year in which it was first founded. In 1967, after the independence of Kenya, Tanzania and Uganda, the East African Community was established in a tripartite agreement. Nevertheless, the community did not last long due to diplomatic and other problems among its members which lead to the dissolution of the Community in 1977 until it was reactivated by the 1999 treaty. Today, the EAC has five members, the founding members are Kenya, Tanzania and Uganda joined by Burundi and Rwanda at the beginning of 2007.

According to Article 5 of the EAC treaty, the objectives of the community ‘shall be to develop policies and programs aimed at widening and deepening co-operation […] in political, economic, social and cultural fields, research, defense, security and legal and judicial affairs […].’ Human rights is given a deserved place in the 1999 EAC treaty which is a major step forward from the 1967 treaty which was rather reticent about issues of human rights. The treaty includes good governance, respect for the rule of law and human rights among its fundamental principles.[164] More interestingly, the prerequisite to accede the organization is made dependent up on the scrutiny of the candidate state’s record of good governance, democracy, the rule of law, observance of human rights and social justice.[165] This scrutiny was applied to the accession application of Rwanda and Burundi in 2007.

The East African Court of Justice (EACJ) is the main judicial body of the EAC. The EACJ, which became operational in 2001, is temporarily situated in Arusha, Tanzania. The EACJ has jurisdiction over the interpretation and application of the EAC treaty. Although the EAC treaty provides for a wide protection with regard to human rights, the EACJ has no jurisdiction in human rights cases.[166] However, the EACJ in Cf Katabazi and 21 others v. Secretary General of the East African Community and Another Case emphasized that it does not restrict it from exercising jurisdiction of interpretation of the treaty merely because the reference includes allegation of human rights violation.[167]

A draft protocol commonly called ‘Zero Draft’ was also been introduced by the EAC’s Secretariat in 2005, with the purpose of extending the Court’s jurisdiction to human rights cases. However, the Protocol has not yet been ratified by the Summit. In spite of the lack of express mention to human rights jurisdiction, the EACJ is still dealing with human rights cases like the East African Law Society and 3 others v. Attorney General of Kenya and 3 Others on the basis of implicit jurisdiction.[168]

3.3.1.4 Southern African Development Community and the Tribunal

SADC was established as the successor organization to the South African Development Coordination Conference (SADCC), which was established in 1980.[169] It has a much broader mandate compared to its predecessor, as the latter aimed at regional peace and security, cooperation in a number of sectors, and integrating regional economies. Even the mandates of SADC were further broadened by the 2001 amendment of the establishment treaty.

Like the aforementioned RECs, SADC recognizes human rights, democracy and the rule of law as basic principles in accordance with which it will act in pursuit of the integration effort.[170] Similar to EAC, SADC has also shown concern for human rights in the admission criteria to SADC. In 2003, the summit amended the requirements for admission adopted in 1995 by adding the criterion that there should be a communality of ‘observance of the principles of democracy, human rights, good governance and the rule of law in accordance with African Charter.’[171] The Organization has also adopted non-binding human rights-related instruments including Principles and Guidelines Governing Democratic Elections, the Charter of Fundamental Human and Social Rights in SADC and the Declaration on HIV and AIDS.[172]

The SADC Tribunal, which is established as one of the six organs of the Community, is the major judicial organ.[173] It is located in Windhoek, Namibia pursuant to the decision of the Summit in the year 2005. The SADC Tribunal was set up to protect the interest and rights of SADC member States and their citizens, and to develop community jurisprudence, also with regard to applicable treaties, general principles and rules of public international law.[174] Putting the criteria of exhausting local remedies as a prerequisite, the tribunal has the power to adjudicate disputes between States, and between natural and legal persons in SADC[175] and its decisions are final and binding.[176]

The SADC Tribunal has no direct and express jurisdiction over human rights cases. The inclusion of human rights in the mandate of the SADC Tribunal was considered, but eventually rejected.[177] However, this constraint has not barred the tribunal from dealing with human rights related cases. For example, the tribunal has recently delivered a judgment on Campbell and 78 others v. The Republic of Zimbabwe- a case with wide human rights implications. [178] The negative response of the government of Zimbabwe to this judgment has called in to question the enforceability of the Court’s judgments by member States.[179]

4 The African Court of Justice and Human Rights: Challenges and Prospects

In this chapter, a thorough analysis of the prospects and challenges of the ACtJHR (also the Court) is made from different vantage points. The discussion begins with the analysis of possible interaction between the two main actors of regional human rights enforcement, i.e. , the ACtJHR and the African Commission. This leads to an answer to the question whether the ACtJHR can really rectify the pitfalls left by the African Commission in the regional human rights enforcement system.

The chapter also analyzes the possible relationship between the African Court and other Sub-Regional Judicial Institutions, especially the judicial organs of RECs. This discussion will analyze the link between the sub-regional judicial institutions and the African Court more particularly on human rights matters and will possibly answer questions such as: what will be the hierarchy of jurisdictional power between these organs? Can the proliferation of human rights judicial organs in the continent lead to forum-shopping and other related negative consequences? Or is it a way to develop and further strengthen the regional human rights enforcement system?

Finally, the chapter winds up with the detailed analysis of the possible normative and institutional challenges and prospects of the Court. In doing so, the author also pays attention to the relevant experiences of other similar regional human rights implementation and enforcement arrangements; such as the Inter-American and the most advanced European systems.

4.1 The Relationship between the Court and the African Commission

As discussed above, it is an obvious fact that the establishment of the ACtJHR will certainly affect the functioning of the African Commission. Hence, the success of an effort to establish a bi-pillar regional human rights enforcement mechanism, like those of the Inter-American and the former European systems, is greatly dependent up on the capacity to clearly and properly define the relationship and the function to be performed by each of these bodies.

While the mandate of the African Commission is clearly defined in Article 45 of the Banjul Charter detailing promotional, protective and other functions, the Protocol on the Statute of the ACtJHR does not make any specific mention as to the relationship between the Commission and the African Court as regards particular functions. Even the complementary nature of these organs can only be inferred through the close readings of the Preamble to the Protocol and other provisions, unlike the Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights, which under its Article 2 expressly mentions that “[t]he Court shall, bearing in mind the provisions of this protocol, compliment the protective mandate of the African Commission on Human and Peoples’ Rights.” The complementary nature of the Commission and the ACtJHR can be inferred from paragraph 5 of the Preamble to the Court’s Protocol which clearly states that the “African Charter on Human and Peoples’ Rights requires the establishment of a judicial organ to supplement and strengthen the mission of the African Commission on Human and peoples’ Rights.” Artcle 27 (1) and Article 38 of the Statute also emphasize that the Court shall bear in mind the complementarity it maintains with the African Commission in the course of laying down its Rules and Procedures.

Hence, it can be inferred that the African Court will not replace the African Commission; rather it will supplement and strengthen the latter’s protective mandate. On the other hand, the African Commission will retain its protective and promotional mandates as enshrined in the Banjul Charter, but will have access to submit or refer cases to the Court as well.[180] However, there exists a potential for duplication of tasks by the Commission and the Court. The good illustration for this potential of overlap is the capacity of the Commission to ‘interpret’ the Charter as per Article 45 (3) of the Banjul Charter and the same capacity of the Court under Article 28 (C) of the Statute of the ACtJHR to interpret and apply the Banjul Charter and any other relevant human rights instrument ratified by the State concerned. Nevertheless, it appears that the interpretative mandate of the African Commission is narrower than that of the African Court, as the former is limited to the interpretation of the provisions of the Banjul Charter. Thus, there exists a possibility that Commission and the Court may understand and interpret the same provision under the Banjul Charter in a divergent way. In this sort of scenario the author thinks that the African Court should have the final say over the interpretation of not only the Banjul Charter but also on any other human rights instrument ratified by the State parties. Thus, a dispute relating to any interpretation made by the Commission can therefore be submitted to the Court.[181]

The other important area where a possible conflict would arise concerns a jurisdictional question. The Single Protocol does not specify any guide-lines as to when it might be more appropriate to submit a complaint to the African Court rather than the African Commission, or vice versa.[182] However, this and other similar questions of jurisdiction can be effectively addressed by the Rules of Procedures made pursuant to Articles 27 and 38 of the ACtJHR Statute which expressly state that the complementarity between the Court and the Commission shall be taken in to account in the course of laying down the Rules of Procedures of the Court.

Nevertheless, Mutua and others are of the view that for the African bi-pillar human rights protection system to be effective enough, the Court has to completely take over the protective mandate under the Charter sparing the Commission the task to focus on the promotional mandate.[183] According to Mutua, the Court was not contemplated during the drafting stage of the Banjul Charter and hence the Commission is provided with both promotional and protective mandates, which gives it a quasi-judicial status.[184] And now up on the establishment of the Court, the Banjul Charter should be revised in order to address the problem of lack of clear division of labor between the Court and the Commission and to avoid duplication of efforts so that the protective function of the African Commission should be removed and vested exclusively with the ACtJHR.[185] Thus, the Commission should only be charged with promotional function.[186] Hence, Mutua draws the conclusion that this unambiguous demarcation of areas of competence should alleviate the problem of hierarchy or ‘competition’ between the two institutions and may enhance cooperation and mutual reinforcement.[187]

However, the author is of the opinion that the African Commission should not be completely deprived of its protective mandate; rather the African Court should reinforce the role of the Commission as this is also a stance reflected by the Single Protocol as well as the former Protocol establishing the African Court of Human and Peoples’ Rights. This is mainly because the Commission remains to be the only forum for redressing human rights violations on individuals in States not party to the Single Protocol, which at the moment still represent a majority of States. The Commission also remains to be the first instance forum for individual complainants from States that do not allow direct individual and NGO access to the Court pursuant to Article 8 (3) of the Single Protocol.[188] A lesson has to be drawn from the Inter-American system in this regard where the Intern-American Commission of Human Rights still remain to be a first instance avenue for the remedy of human rights violations on individuals for the majority member States as only 13 of the 35 signatories of the American Convention on Human Rights have signed and accepted the optional jurisdiction of the Inter- American Court of Human Rights.[189]

The two scenarios above show that the African Commission will remain to be a tribunal of last and first instance in respect to individual cases respectively.[190] According to Viljoen, even in cases where the Commission and the Court share jurisdiction, the Commission may sometimes still be the most appropriate mechanism to deal with complaints.[191] For example, in situations of large scale violations, an onsite investigation by the Commission, providing the opportunity for direct discussion and intervention with government officials may provide a better prospect of success than contentious litigation.[192]

Nevertheless, it is an undeniable fact that unless the Rules of Procedures of the ACtJHR will be designed in a very wise manner, undue delay of cases, which is also the main problem of the Commission, might hugely undermine the Court. This is especially true given the limited acceptance of direct access to the Court; most individual complaints are likely to appear first before the Commission and thereafter to the Court.[193] This two layered long process of justice may largely frustrate the new system as an old adage goes ‘justice delayed is justice denied’. Hence, the Rules of Procedures of the Commission and those of the Court should be harmonized in order to rectify this potential problem.

In general, though the complimentary relationship between the two institutions is a great asset to the effective and efficient operation of the system, its success or failure is greatly dependent up on the pragmatic approach employed in the course of designing the Rules of Procedures of the Court, i.e., the Rules of Procedures should properly clarify the functions to be performed by each of these bodies and should avoid the problem of undue delay as much as possible.

4.2 The Role of the Court in Rectifying the Pitfalls Left by the Commission

The African human rights system depicted by the Banjul Charter is largely characterized by its promotional role and an ambiguous and weak enforcement mechanism.[194] The main enforcement organ under the Charter, the Commission, has been a disappointment with respect to its specific functions as well as its performance in general.[195] Hence, acknowledging the general ineffectiveness of the present system, Africans are desperately looking for a body that can cure its sickness and reinforce it, i.e., a Human Rights Court. The hope appears to be that a Court will strengthen the regional system and aid it in realizing its promise.[196] However, that does not seem to happen unless the Court rectifies the pitfalls that have trapped the African Commission.

Mutua noted that the African Rights Court is a potentially significant development in the protection of rights on a continent that has been plagued with serious human rights violations since colonial rule. He boldly stated that the problems of the African human rights system including the normative weaknesses in the African Charter and the general impotence of its implementing body, the African Commission, may now be addressed effectively and resolved by the establishment of this new adjudicatory body. But the question is how? Thus, the author in this section will try to identify the possible ways by which the Court can treat the ailments the Commission is suffering from.

In the first place the Court will start to operate in an amicable environment to human rights protection and promotion in Africa, compared to the Commission, which will be of paramount significance for the Court to reinforce the continental rights system. New wave of democratization seems to be emerging in the continent with the advent of democracies such as Namibia, Malawi, Benin, South Africa, Tanzania and Mali which are more inclined to respect human rights at home and to agree to a more viable regional system than their predecessors.[197] In this respect, the ACtJHR would operate in a less hostile setting than the environment that determined and sharply limited the power and effectiveness of the African Commission.[198] In addition to the development within the domestic arena, the establishment of AU− with a more human rights mandate will also help− the Court to be successful than the Commission which suffered from the hard lined principle of territorial sovereignty under the OAU.

Hopefully, the Court will also effectively address the problem of enforcement of decisions by transforming the recommendatory natured findings of the Commission to binding legal judgments. As already stated elsewhere, the Commission’s findings are not final and are mere recommendations contingent to the consent of the Assembly of Heads of State and Government even for their publications, which usually is denied. This has greatly weakened the impact of the findings of the Commission by inhibiting state compliance with the findings.

However, it is now expressly stated under the Statue of the ACtJHR that the findings or judgments of the Court are final and binding.[199] They are not subject to appeal to any other judicial or political body. Thus, the decisions of the Court are unequivocally binding on the concerned State party.

The Court is also generously provided with a wide subject matter jurisdiction[200] compared to the African Commission, which is restricted to the interpretation and application of the Banjul Charter.[201] Art 28 (c) of the Statute of ACtJHR entitles the Court to interpret and apply not only the Banjul Charter but also any other legal instrument relating to human rights, ratified by a State party concerned. Thus, the Court− unlike the Commission− does not only use other international human rights instruments ratified by State parties as interpretative guide but it can also apply the substantive provisions of such instruments to a given case. This will certainly help the Court to solve the normative problems encountered by the Commission, i.e ., the vague ‘claw-back’ clauses attached to most of the rights under the Banjul Charter.

Although it is obvious that anyone who suffered from violation of human rights looks for a remedy, the Banjul Charter has silently passed concerning any form of remedy following a finding of violation.[202] Hence, the Commission has not been able to provide effective remedies, or to oversee their implementation.[203] However, the Statute of ACtJHR expressly entitles the Court to give provisional measures, where necessary, as well as permanent remedy for violation of rights.[204] Article 45 of the Statute states that; if the Court considers that there was a violation of human or peoples’ rights, it can order to remedy the situation including granting fair compensation.

The Court will also install a comprehensive and consistent system of implementing decisions, which certainly alleviates the Commission’s inconsistent and uncertain approach of follow-ups. In addition to the non- binding nature of the Commission’s decisions and lack of effective remedies for violations, the implementation or enforcement of remedies remained to be weak and inconsistent. The Commission has not put in place a concrete follow-up system directed towards gathering of information about steps taken by States in response to findings by the Commission.[205] This problem seems to have its root from the lack of normative support from the Banjul Charter. Neither the Charter nor the Commission’s Rules of procedure has explicitly reflected this feature.

In sharp contrast to the previous system, the Statute of the ACtJHR has expressly imposed an obligation on the State parties to the Court’s Protocol to implement the findings of the Court including undertaking interim measures and final remedies.[206] Institutional or systematic control of follow-up is provided as the Executive Council must be notified of the judgments of the Court and shall monitor their execution on behalf of the Assembly.[207] The assurance for the implementation of judgments of the Court is further reinforced by the decision of the Assembly, which may include sanctions in case of failure to comply with the judgment of the Court by a State Party to the Protocol.[208] Thus, the Court will deliver binding decisions and the whole system will assure the effective implementation of the decisions.

The Court will also improve the problem of independence and impartiality encountered by most African judiciaries, including the Commission. The Statute of ACtJHR requires the judges to be impartial and independent and elected from among persons of high moral character who possess the qualifications required in their respective countries for appointment in the highest judicial office, or are juris-consults of recognized competence and experience in international law and/or human rights law.[209] It further provides that the independence of the judges shall be fully ensured in accordance with international law[210], i.e., independence from governments and impartiality of persons monitoring State compliance with their human rights obligations as espoused by the global human rights system.[211] More importantly Art 13 (1) of the Statute provides that “[f]unctions of the judge are incompatible with all other activities, which might infringe on the need for independence and impartiality of the judicial profession.” This provision will ensure that the judges of the Court are not engaged in activities that conflict with their role as a judge. The absence of similar provision in the African Charter with regard to the commissioners has made it problematic to clearly distinguish what might constitute an incompatible activity of members of the Commission.[212] This is especially true when some members of the Commission also serve in their home government either as a minister or ambassador which would certainly cast a great doubt up on the impartiality and independence of the work of the Commission.[213]

However, as stated elsewhere, the present Protocol has put much emphasis on the personality of the judges while the major difficulty encountered by the African judiciaries is the question of independence; hence consideration of conditions under which the judge is operating in his/her national jurisdiction is overlooked.[214] There should be something in the Statute that requires a certain minimum standard to apply to State parties in terms of level of democracy and the rule of law as a condition for them to qualify for nominating a practicing judge to the Court.[215]

The Court will also rectify the problem of secrecy in the works of the African Commission. The Banjul Charter requires ‘ all measures taken ’ by the Commission to remain confidential until they are approved by the Assembly.[216] The term ‘ all measures taken ’ was interpreted to encompass the Commission’s finding and reasoning in all communications.[217] Even after an authorization to publicize, there is no any official system of publication.[218] This excessive secrecy has lead to the very low media coverage of the Commission’s work, which in turn contributed to the low public awareness of the Commission’s work and existence in Africa.[219]

In sharp contrast to the Commission, the Court will have its proceedings in public; as any court does.[220] The only exception to this requirement is only where the Court decides that the session shall be closed for various reasons like witness protection. The Statute further requires the Court to read its decision in an open session and the judgment to be notified to the parties, the member states, the Commission and the Executive Council.[221] This requirement will certainly contribute to raise the awareness of the public about the existence of the Court so that any victim of human rights violation will turn to it for recourse.

4.3 The Relationship of the Court with other Sub-Regional Judicial Institutions

As stated in chapter three, the judicial organs established under sub-regional arrangements (REC) are primarily aimed at fostering progressive economic integration directed towards improving the living standards of the citizens of member States. However, there clearly are human rights dimension to economic and political integration and to trade.[222] This is rendered true even more when the founding treaties of the RECs explicitly refer to human rights protection as part of their mandate.

Looking in to the founding treaties of African RECs with functional courts, which includes; COMESA, EAC, ECOWAS and SADC, all expressly referred to human rights protection and good governance as part of their mandate and even invoked the African Charter as part of their foundational principle with the exception of SADC.[223] Hence, in addition to the founding treaties of the respective RECs, the Banjul Charter is relied up on as interpretative guide by the respective courts.

On the other hand, Article 28 (c) of the Statute of ACtJHR provides the Human Rights Section of the Court with a very broad subject matter jurisdiction ranging from the interpretation and application of the Banjul Charter to ‘ any other legal instrument relating to human rights ratified by state parties concerned. ’ This will enable the Court to extend its jurisdiction beyond the African Charter and to encompass any treaty dealing with human rights to which the African States Parties to the Protocol are parties.[224] Though, arguably, this includes the interpretation and application of African regional and sub-regional instruments such as the founding instruments of COMESA, EAC, ECOWAS and SADC to the extent that such instruments relate to human rights matters. This is mainly due to the fact that such treaties expressly refer to the protection of human rights in accordance with the Banjul Charter although they are primarily concerned with economic development.[225] According to Mugwanya, the experience of the European Community demonstrates that, in practice, matters concerned with economic development may infringe on several rights of individuals which may need redress.[226] This is especially true with regard to ACtJHR; a court consisted of dual section dealing with both human rights and economic matters.

The picture depicted above shows that there is an overlap of subject matter jurisdiction between the ACtJHR and the judicial organs of African RECs; as both have got concurrent jurisdiction over the interpretation and application of the Banjul Charter and founding instruments of the respective RECs. Hence, the questions those follow from this are; what are the outcomes and impacts of this overlap of jurisdiction on the process of establishing continental human rights jus commune ? Are there rules governing the possible ‘competition’ of jurisdiction among these courts?

Two major consequences may arise from the above mentioned overlapping subject matter jurisdiction; these are: divergent normative interpretation and forum shopping. Hence, the author will discuss the above problems with their respective solutions in the following sub-sections.

4.3.1 Divergent Normative Interpretation

Neither the Protocol nor the Statute of the ACtJHR provide for the final and authoritative interpretation of the Banjul Charter or any other instrument by the African Court. This fact may lead to the divergent interpretation of the Banjul Charter by different courts of African RECs and the ACtJHR. If all these judicial bodies adjudicate on the basis of the African Charter, without any final interpretative authority, a consistent and sound jurisprudence could not develop, which is no mandatory. According to Viljoin, while this overlapping jurisdiction may lead to cross-fertilization and could strengthen both institutions, the converse may also be true, leading to a chaotic divergent interpretation.[227]

However, this problem is not without a solution. It is possible to solve this problem by making the sub-regional courts to follow the ACtJHR interpretation , i.e ., by making the interpretations of the ACtJHR final and binding. This especially can be done through installing a system of referral to the Court for interpretative guidance[228] similar to that in place when a national court refers a matter for preliminary ruling to the European Court of Justice,[229] and similar to referrals provided for under the African RECs.[230]

4.3.2 Forum Shopping

The other consequence of ungoverned overlapping jurisdiction is that a claimant may choose to which judicial body a case is submitted, looking in to the prospects of winning, since a competent court may not decline jurisdiction on the ground that another court may be competent as well.[231] As this issue is not clearly governed neither under the Protocol nor the Statute of ACtJHR, it raises important questions such as: if a litigant is unsuccessful before a regional court, should he be allowed to bring the same case before ACtJHR? What would then be the status of the decision by ACtJHR?

The best solution in order to solve the likely problem of forum shopping is applying the principle of res judicata in relation to the decisions made by other sub-regional judicial organs while allowing further recourse from REC courts to the ACtJHR.[232] This means it is important to establish a jurisdictional hierarchy in a manner of first instance-appellate arrangement in order to alleviate the problem of forum shopping. In order to establish this arrangement it is important to first abolish the finality of judgment clauses under the protocols establishing courts of RECs such as ECOWAS.[233]

4.3.3 Pros and Cons of a Two-Layered Regional Human Rights Judicial System in Africa

As already stated above, an ungoverned proliferation of human rights judicial bodies at regional and sub-regional levels may lead to a chaotic and divergent interpretation of norms and would also give rise to forum shopping. However, the question here is that: what are the advantages and disadvantages of two-layered human rights judicial system in Africa even when it is properly governed?

To start from the advantages; the existence of sub-regional human rights judicial bodies will help to reduce the case load of the ACtJHR and the Commission. It is inevitable that the ACtJHR will be inundated with a barrage of cases from 53 African States either through the Commission or direct individual access. The experience from the ECtHR also reveals this fact where the accumulated case load by far exceeds the judgments rendered though the Court is working full time with several chambers. Thus, the existence of sub-regional human rights judicial bodies can be used as an additional and crucial filter as well as alternative mechanism besides domestic courts. This will help the ACtJHR as well as the Commission to operate in a more effective manner and to give more speedy remedies to the cases at their hand.

Another important advantage of two-layered regional human rights system is that it will provide individuals with more direct access to courts on human rights matters. As has already been discussed elsewhere above, the Statute of the ACtJHR does not allow direct individual access to the Court unless the signatory State separately consented to such a term. However, most REC courts expressly allow direct individual access without laying any precondition. Thus, the direct access to REC courts will give a much more effective and expeditious justice to individual applicants without the need to go through the long procedure of accessing the ACtJHR through the Commission.

It also offers the applicants an opportunity to bring a case in the nearby REC court than going to Arusha, Tanzania, for every case. This will especially help a financially weak applicant to be able to afford litigation on human rights issues before international courts thereby encouraging them to expose human rights violations at a relative ease.

The two-layered system has also its disadvantages. It may lead to ‘inappropriate’ division of resources. As is already stated, even the primary rational to merge the African Court of Justice with African Court on Human and Peoples’ Rights and form the ACtJHR is a financial constraint which has hindered the works of the African Commission for decades. Hence, it would be appropriate to question whether Africa is capable of financing both regional and sub-regional judicial organs. This raises the question: is it not more pragmatic to invest on a strong regional human rights court than establishing a number of weak enforcement bodies at regional and sub-regional levels? The other disadvantage could be that it might slow down the process of creating a continental human rights jus commune and judicial integration.

4.4 Normative and Institutional Challenges and Prospects of the Court

In this section the author discusses the would- be normative and institutional challenges and prospects of the Court as a determinant factor for the possible success or failure of it. The discussion on normative challenges and prospects will mainly focus up on the interpretation and application of the Banjul Charter, as the main regional human rights instrument, by the court; while the institutional challenges and prospects discussion will concentrate up on both the internal and external factors that can possibly lead the Court to success or failure. Throughout all the discussions, the author will try to identify/ develop pragmatic solutions for the possible challenges where it is possible.

4.4.1 Normative Challenges and Prospects

The Banjul Charter, the Court’s basic instrument, has deep normative flaw that must be alleviated in order to give the Court a firm legal basis to protect human rights.[234] The Charter is characterized by the prevalence of claw-back clauses which tend to undermine the contents of the rights and give wide powers to States to derogate from their human rights obligation.[235] Unlike the European Convention on Human Rights and Fundamental Freedoms (ECHR), which subjects the restriction of derogable rights to the requirement of ‘ necessity in a democratic society ’, the claw-back clauses under the Banjul Charter permit African States to restrict basic human rights to the maximum extent allowed by domestic law. Mugwanya has noted that domestic practice reveals that governments are always fast to exploit any loopholes or perceived loopholes in bills of rights to the detriment of the enjoyment of these rights.[236]

Hence, the Banjul Charter should be amended and the existing claw-back clauses must be repealed in order to make the ACtJHR more effective in interpreting and applying the provisions thereof. Most scholars suggest that, the best way to remedy this normative flaw in the Banjul Charter is exclusion of the claw-back clauses in favor of a derogation provision, which will specify non-derogable rights, and which rights States can derogate from when and under what circumstances.[237] According to Mugwanya, such an approach may help to make it clear both to the beneficiaries of the right and State Parties that the latter are obligated as a matter of priority to give effect to all rights and freedoms enshrined in the Charter, and that they do not have unfettered discretion to limit or negate these rights.[238]

However, until the time that such amendment will be effected, the ACtJHR can use its broad subject matter jurisdiction as a key mechanism to address the problem of normative flaws in the Banjul Charter. Article 28(c) of the Statute of ACtJHR allows the Court to apply ‘[…] any other legal instrument relating to human rights, ratified by State parties concerned.’ This provision allows the Court to apply the UN and other sub-regional human rights instruments in the interpretation and application of rights. Then, an intelligent plaintiff (applicant) can bring his/her claim based on other human rights conventions ratified by the State concerned whenever the specific right under the Banjul Charter is restricted by the vague claw-back clauses. In addition to this, the Court may also resort to the jurisprudence of the African Commission where the latter has effectively restricted the boundaries of the right.[239]

Looking at the other side of the Banjul Charter, though it is characterized by its deep normative flaws, it also provides a good prospect for the possible success of the African Court in certain aspects. As the Charter is designed taking into consideration the unique African realities, it will enable the African Court to effectively address the human rights problems in the region ranging from individual to group rights. The African Charter also, unlike other regional and international human rights instruments, puts civil and political rights, economic, social and cultural rights and peoples’ rights under the same roof and designates them as indivisible. This will enable the African Court to address the human rights challenges in the region, which are deeply connected with economic problems, in a more innovative and integrated manner.

4.4.2 Institutional Challenges and Prospects

4.4.2.1 Lack of Individual and NGO Standing

Article 30 of the ACtJHR Statute provides for standing on human rights and only the following entities are entitled to submit cases to the African Court on any violation of rights guaranteed under the instruments and enumerated under the same: a) State Parties to the Protocol; b) The African Commission on human and Peoples’ Rights; c) The African Committee of Experts on the Rights and Welfare of the Child; d) African Intergovernmental Organizations accredited to the Union and its organs; and e) African National Human Rights Institutions.

Nevertheless, according to Artticle 30 (f) of the ACtJHR Statute, individuals and NGOs accredited to the AU or to its organ can only submit cases against States if the State concerned has made a declaration accepting the competence of the African Court to do so under Article 8 of the Single Protocol. However, the question here is that: how many African States will be ready to make such a declaration taking in to consideration the record of ratification of the Protocol itself?[240] The best answer for this question can be obtained from the experience of the Inter-American Human Rights System where only 13 of the 35 signatories of the American convention on Human Rights had signed and accepted the optional jurisdiction of the Inter-American Court of Human Rights.[241]

This arrangement under the protocol permits States to shield themselves from complaints by their own citizens and NGO who allege human rights violations. Unless States accept the jurisdiction of the Court over individual complaints, the object and purpose of the African Charter and the Protocol to make States accountable for human rights violations within their jurisdiction would be greatly undermined.[242]

Kuwali is of the view that this limitation renders access to justice illusory for human rights victims and designated this development as one step back in comparison with African sub-regional human rights mechanisms which have long recognized individual petitions for human rights abuses.[243]

The impact of such restrictive access is directly reflected in the recent judgment of the African Court of Human and Peoples’ Rights in the case of Michelot Yogogombaye v. The Republic of Senegal, where the Court was bound to struck down the case due to lack of jurisdiction as Senegal has not accepted the jurisdiction of the Court that grants individuals the opportunity to institute cases directly before the Court.

However, the limitation should not be magnified to the extent that it can undermine the development in the African rights system. For example, looking in to the former arrangement under the ECHR and the existing arrangement under the Inter-American Human Rights system; the respective regional courts were/are not allowed to entertain individual complaints from member states unless the latter agreed to such terms with a separate declaration. But this has not prevented both systems from redressing human rights violations using the respective Human Rights Commissions as first instance avenues. In a similar manner the African Commission’s unlimited access to the African Court should be effectively used to refer cases and initiate new ones to the African Court.

4.4.2.2 Limited Number of Ratifications

The main concern of human rights activists with regard to the establishment of human rights judicial organ in Africa is whether all AU member States will accept and ratify the Protocol of establishment. Assuming they accept, the question remains whether they will be willing to accept direct individual access to such court? It is clear that for the regional human rights court to put maximum effect on the improvement of the dismal human rights record of the continent there should be universal acceptance of its jurisdiction.

However, looking at the historical conservative reliance of African States on national sovereignty and great emphasis given to amicable dispute resolution in favor of judicial settlement, especially in the human rights arena, it is most unlikely that the ACtJHR will get full ratification of 53 States in Africa. This assumption can be more substantiated by the slow ratification record of the Protocol establishing the African Court of Human and Peoples’ Rights, the predecessor to ACtJHR.[244] Even the Protocol establishing the ACtJHR has been ratified only by two States, Mali and Libya, since its adoption in 2008. This shows that the regional human rights system has missed one important element for it to be effective enough in handling the deeply rooted and complicated human rights problems , i.e., political will and support of the Member States of the AU.

4.4.2.3 Problem of Enforceability

The major problem encountered by most African judiciaries is the problem of enforceability and implementation of their decisions. This problem is even more graver when we come to disputes involving human rights matters, as most of the time, such disputes are charged with political interests of the States. It is important to raise the case of Mike Campbell and another (PVT) Limited v. The Republic of Zimbabwe: a decision by SADC Tribunal which clearly demonstrated the frustrating problem of enforceability of decisions of judicial organs in Africa. This case was about forcefully displaced white farmers in the Republic of Zimbabwe and it involved the right to non-discrimination and property. The tribunal delivered its decision, which is binding and final, in favor of the applicant. However, the Republic of Zimbabwe has forthwith announced that it will not accept the judgment. Thus, there is no any guarantee that such irresponsible acts will not trouble the works and decisions of ACtJHR.

Looking into the mechanisms of implementation and enforcement installed under the Statute establishing the ACtJHR, Article 46 provides that the decision of the Court shall be binding on the parties and the decisions are final; and where a party has failed to comply with the judgment the Court shall refer the matter to the AU Assembly which shall decide up on measures to be taken to give effect to the judgment. Article 23 (2) of the AU Act gives the AU Assembly the power to impose sanction on States that refuse to enforce decisions made by any AU organ, which includes the Court. However, history tells us that the OAU as well as the AU Assemblies were (are) not known for their determination for the respect and enforcement of human rights, which can be well understood from their repeated failures to allow the publication of the Commission’s report against an offender State. Rather, they are known for the generous support extended to colleague leaders in the Assembly whenever there is an issue against their power.

Thus, the Court does not possess any power to ensure that its judgments are adhered to, and appears powerless to react whenever its decisions are ignored. Nonetheless, in this authors view, it is important to empower the Court with the mandate to enforce its own decisions rather than solely conferring such power on a political organ− the Assembly− so that it can punish States that do not comply with its judgments.[245] Moreover, it is important to use or create a domestic enforcement organ in each State that can follow the implementation of the decisions of the Court in the respective countries like that of the ECOWAS Court.[246]

4.4.2.4 Financial Constraint

One of the reasons for the failure of the Commission is lack of adequate funding from both the OAU and AU. The African Commission was, and still is, bound to ask for external donors, such as the EU, in order to fill its budget deficit every year which has got a great implication on its independence and impartiality.[247] Unfortunately the Court, that is meant to rectify the shortcomings of the Commission, is coming in to force at the time when the AU is struggling to fulfill the financial needs of its organs, which are increasing exponentially.

Even the merger of the African Court of Human and Peoples’ Rights with the African Court of Justice is primarily justified by financial problems. Yet, the question here is that: is the AU, which is bound to allocate annual budget for both the Commission and the Court, capable enough to fund both organs?[248] From the discussion above it is quite clear that the success of the Court majorly depends up on a functional and well established African Commission.

4.4.2.5 Can the Court address the Sources of Human Rights Challenges in Africa?

There is high optimism that the Court will effectively address the historically rooted human rights problems in Africa and will make African leaders more conscious of their human rights obligations. However, there is also a great doubt as to how far the Court can go in improving the grave human rights situation which is primarily caused by economic, demographic and political problems.

As Africa is suffering from severe economic, demographic, health, and political problems it will not be easy to achieve the human rights status that its people need.[249] Development analysts suggest that for the human rights campaign in Africa to be effective enough, there is a need for a new paradigm for Africa’s development based on a vibrant domestic private sector, a stable State, effective policy analysis, and good governance.[250] At the first Development Forum held in Addis Ababa, Ethiopia, from 14-28 October 1999, the then OAU Secretary-General Salim Ahmed Salim emphasized the linkage between governance, economic development and human rights. He noted that:

“Good governance and democracy or the respect for human rights cannot thrive on empty stomachs, […] democracy must deliver on bread-and-butter issues, otherwise democratic transitions will be reversed and the continent will slide back in to situation where the politics of poverty gives rise to the poverty of politics.”

Nevertheless, the author is not as pessimist as those who observe the Court as a mere addition to the institutional structure of the AU taking in to consideration its capacity to address the deeply rooted human rights and development problems. The Court certainly has prospects to address the issues of economic development together with human rights. This is mainly because the Court has a great opportunity to integrate human rights matters with economic development issues as it is composed of the economic and human rights sections. Moreover, as long as the judges are wise and determined enough, they can make the most out of the interpretation of the African Charter− a document which advocates the indivisibility of civil and political rights from economic, social and cultural rights in order to address human rights and economic needs of the people at a time.

4.4.2.6 Absence of Provision for ‘Class Action’

There appears to be a problem of enforcing the so called ‘peoples’ rights’ before the ACtJHR. This is mainly due to the fact that neither the Protocol nor the Statute provide for any viable method for a group to claim a right before the Court. The usual way of claiming such a right is through a ‘class action’ which provide a group with the standing before a court through a representative.

The other area where the lack of provision for class action may make enforcement of rights before the Court illusory is that the so called second generation rights or socio-economic rights; ‘poverty’ claims are likely to be brought by groups or to have collective implications.[251] Such violations in Africa usually occur on a massive scale, involving numerous victims and simultaneous violations of manifold rights.[252] Thus, it would be futile, if not waste of time, to address such claim on individual basis while the whole groups of people are victims of such a violation.

Hence, it would be wise for the Court to approach such violations through class actions as this method is proved to be effective before courts such as the South African Constitutional Court.[253]

4.4.2.7 Inability of States to access the Court for Advisory Opinion

Article 53 of the ACtJHR Statute confers advisory jurisdiction on the Court. However, the Court is only allowed to deliver advisory opinions at the request of the AU organs such as the AU Assembly of Heads of State and Government, the Pan African Parliament, the Executive Council, the Peace and Security Council, the Economic, Social and Cultural Council, the Financial Institutions or any other organs of the AU as may be authorized by the AU Assembly.[254] This provision seems to be narrower in scope compared to the Protocol establishing the African Court of Human and Peoples’ Rights. The latter, under Article 4, allowed the Court to deliver advisory opinions at the request of member States of the OAU, any of its organs or any African Organization recognized by OAU.

For unclear reasons, the ACtJHR Statute has denied the member States the power to request advisory opinions from the ACtJHR. However, in the author’s opinion this is a big drawback of the Statute which can have a great implication on the prospects of the Court. Though advisory opinions are not legally binding, the practice of the Inter-American Court shows that it can profoundly affect the conduct of States with respect to human rights.[255] Especially, the use of advisory opinion enables States to approach the Court to test the compatibility of their domestic laws with international or regional human rights instruments. More importantly, as it is proved in the Inter-American human rights system, the use of advisory opinion is particularly important in the sense that it may be the only way that a court can have the benefit of looking in to an issue that involves a State that is not a party to the instrument vesting jurisdiction on the merits in the Court.[256] Looking in the African context, where amicable dispute resolutions are taken as the best option than the win-lose legal litigation, advisory opinions may be less confrontational avenue to approach the Court than the contentious route and may provide the effective way of bringing about domestic changes without ‘embarrassing’ African States as ‘ human rights violators’.[257]

However, the present Statute of the ACtJHR has denied all these opportunities for the Court to be more effective in bringing tangible changes to the domestic laws and practices of AU Member States by denying the States the power to submit advisory request to the Court. This approach seems to be more influenced by the ECHR, which under Article 47 (1) states that ‘only the Committee of Ministers of the Council of Europe may request opinion from the European Court on legal questions concerning the interpretation of the Convention and its Protocols.’

The only reason that can be inferred for following this restrictive approach by the drafters of the Statute of ACtJHR is the fear of duplication of tasks between the Court and the Commission. The Commission has been provided with the power to interpret all the provisions of the Banjul Charter at the request of a State Party, an institution of the OAU/AU or an African organization recognized by OAU/AU.[258] However, taking in to consideration the Court’s broader subject matter jurisdiction, which includes any human rights instruments ratified by a member State, would it not be appropriate to give the States another opportunity to approach the Court for advisory opinion?

4.4.2.8 The Problem of Failed and Failing States

As already stated in chapter one, one of the root causes of human rights challenges in Africa is internal and inter-State conflicts prevailing in the region. These conflicts have resulted in an untold suffering of women, children and other civilians, unprecedented flow of refugee and internally displaced people, genocide and other related humanitarian and human rights violations.

These conflicts at most lead to the demise of States like Somalia where several factions (non-State actors) operate with impunity. The responsibility of these non-State actors is not clearly defined or determined under international law. It is also really difficult to mention any effective enforcement mechanisms for the effective implementation of human rights norms in these failed and failing States.

Hence, the question here is that, can the Court address the human rights problems in such context? As an ordinary treaty body it is obvious that the Court will only have jurisdiction over State Parties to the establishment Protocol. Nevertheless, the failed States without any central government and effective controlling power cannot be a party to such a Protocol, so that, the Court will be without any power to address such a catastrophic human rights violations by the non-State actors.

In the authors view, the only way by which the Court can extend its protection to such victims of violations is through its advisory power. Article 53 (1) of the ACtJHR Statute charges the Court with the power to give an advisory opinion on any legal question at the request of the AU Assembly, the Pan African Parliament, the Executive Council, the Peace and Security Council, the Economic, Social and Cultural Council and the Financial Institutions or any other organ of the AU as may be authorized by the AU Assembly. Thus, the AU organs dealing with peace, security and human rights may bring advisory request for the Court to determine the existence of mass atrocity crimes, i.e., genocide, war crimes and crimes against humanity, or other human rights violations so that the AU will exercise its right of intervention under Art 4(h) of the Constitutive Act or take other appropriate measures.[259]

5 Conclusion and Recommendations

5.1 Conclusion

Africa has started its journey of building a systematically arranged and institutionalized human rights protection system with the adoption of Banjul Charter in 1981 and the establishment of the African Commission on Human and Peoples’ Rights in 1986 as the sole enforcement organ thereof. However, this system has not gone far without being vulnerable to sharp criticisms. Hence, it is in the effort to cure the ills suffered by this system that an effort to build a regional human rights judicial organ has been started. The process of establishment of the ACtJHR is also the extension of this effort, which partially became successful with the transitional operation of the African Court of Human and Peoples’ Rights.

Africa has been at the forefront in the development of human rights standards.[260] In spite of the international advocacy for the division of civil and political rights from socio-economic rights, the Banjul Charter has provided a progressive stand in promoting the universality, interdependence and indivisibility of these rights.[261] The Charter was also innovative in recognizing the right to development and peoples’ rights.[262]

However, the regional rights protection system depicted by the Banjul Charter faces considerable challenges. Especially, the Commission has been a disappointment with respect to its specific functions as well as its performance in general.[263] Thus, it is in the effort to remedy this weakness that the need to establish a human rights court came in to picture. Today, hopes are high in Africa that the bi-pillar human rights system will certainly be more effective than the previous monotonous arrangement. Nevertheless, yet to be answered is the question: how can the new system rectify the pitfalls in the old one? Another issue is whether this new system can fulfill the expectations of prospect for success?

The challenge of drawing an effective continental bi-pillar human rights system begins from defining the interaction between the two main regional human rights enforcement actors, i.e., Commission and the Court. The success of the new system is mainly dependent up on the capacity to clearly define the respective functions of the two organs without any or very minimal duplication of tasks. These will mainly alleviate the problem of delay of justice and facilitates the complimentary functioning of the two institutions. This arrangement will further assure individual access to the Court through the Commission for citizens of States which have not allowed such an access by a separate declaration.

The Court will also hopefully address the problems of enforcement and implementation encountered by the Commission as the decisions of the former are unequivocally binding on the concerned parties. The wide subject-matter jurisdiction of the Court will also help it to apply wide range of human rights instruments, unlike other regional human rights courts such as European Court of Human Rights and Inter-American Court of Human Rights, and this gives the African Court the opportunity to solve the problem of framing the scope of rights under the Banjul Charter which are significantly limited by the vague claw-back clauses.

Both the Protocol and the Statue of ACtJHR are silent on the relationship between the Court and the judicial organs of RECs, although there are possible areas of overlapping jurisdictional powers. The absence of any governing rule on this area may especially lead to the problem of divergent normative interpretations, forum shopping and most importantly closes the door for success of the effort of judicial integration and creation of a continental human rights jus commune.

The restriction of direct access to the Court by individuals and NGOs may greatly undermine the prospects of the Court for success. This arrangement permits States to shield themselves from complaints by their own citizens and NGOs who allege human rights violation. This will be against the very purpose and objective of the Banjul Charter and the Protocol, i.e., making States accountable for human rights violations within their jurisdiction. However, the Commission’s unlimited access to the Court can still be used as a good channel to assure individual access to the Court.

The limited ratification number and the problems of enforceability of decisions may also trouble the works of the Court. Those African States that may seek to hide behind the principle of sovereignty, they may not be willing to submit domestic human right matters to an external decision making body. Hence, it looks most unlikely that the Court will get universal acceptance in the continent: a missing important element for success. Even in cases where the Court secures ratification, it is really doubtful as to how much the State will be willing to enforce its decisions as recently observed in the decisions of the courts of RECs.

It is also doubtful whether the Court will be effective enough in addressing the grave human rights situation which is primarily caused by economic, demographic and political problems. However, the merged nature of the Court will certainly boost its capacity of integrating development issues in to human rights and vice-versa. Hence, this will give the Court the opportunity to address multifaceted problems at a time.

The Court may also fail to address the problem of failed and failing States in Africa which is the source of other various problems. The only way out to make the Court to stretch its hand to address such problems is through its advisory jurisdiction, i.e., the AU organs dealing with peace, security and human rights may bring advisory request for the Court to determine the existence of mass atrocity crimes or other human rights violations for the AU to take appropriate measures under Article 4(h) of the AU Act.

In general, the Court’s success is greatly dependent up on its capacity to resolve the various normative and institutional challenges in a pragmatic way. The ACtJHR should also move a step forward and make a paradigm shift from the traditional court set up and practice by addressing the social, economic and human rights needs of the African people through integrating human rights in to development issues. However, what really matters is the strong political support from the member States of the AU and the universal acceptance of the Court for its objectives and goals to succeed.

5.2 Recommendations

Based on the findings from the study, the author would like to advance the following recommendations:

1. The success of the African bi-pillar human rights protection system greatly depends up on the existence of a smooth complementary relationship between the ACtJHR and the African Commission. However, neither the Statute nor the Protocol of ACtJHR properly govern this relationship and seem to leave this issue to be addressed by the Rules of Procedures of the Court. Hence, at most care should be given in the course of designing the Rules of Procedures of the Court in harmonizing with those of the African Commission. Furthermore, the Rules of Procedures should properly clarify the functions to be performed by each of these bodies and should avoid the problem of delay to the extent possible.

2. In assuring the impartiality and independence of the judges, the Single protocol has put much emphasis on the personality of the judges, leaving untouched the consideration of conditions under which the judge is operating in his/her national jurisdiction. However, the main problem of most judicial systems in African is a question of independence from domestic politics. Thus, the Statute of ACtJHR should be amended in a way that it will include certain minimum standards to apply to State Parties in terms of level of democracy and rule of law as a condition for them to qualify for nominating a practicing judge to the Court.

3. In the authors view, three things must be emphasized in order to facilitate the relationship between the ACtJHR and the various judicial organs of RECs which is helpful to foster the endeavors to create a continental human rights jus commune. These are:

i. Same standard (uniform) norms should be used by all human rights judicial and quasi-judicial bodies in Africa-the Banjul Charter preferably.

ii. Non- divergent normative interpretation should be adopted through following the interpretation of ACtJHR as the most authoritative and final source of interpretation.

iii. Appeal standard/ hierarchy should be put in place. This can mainly be done through adopting the principle of res judicata to the decisions of sub-regional judicial organs and conferring the power of appellate jurisdiction on the ACtJHR from the decisions of sub-regional judicial organs.

4. In order to solve the normative challenge of the Court, the Banjul Charter should be amended and the existing claw-back clauses must be abolished and replaced by a list of non-derogable and derogable rights specifying which rights can derogate from, when and under what circumstances.

5. Until the amendment to the Banjul Charter on the abolishment of the claw-back clauses will be effected, the ACtJHR should use its broad subject matter jurisdiction as a mechanism to address the problem of normative flaws in the Charter. Especially, applicants should bring their claim based on other human rights instruments ratified by States concerned whenever the specific right under the Banjul Charter is restricted by a vague claw-back clause to the determent of the same.

6. For the at most success of the regional human rights protection system to be attained, the Statute of ACtJHR should be amended in a way that it will allow direct individual and NGO access to the Court. Alternatively States should accept this right in their instrument of ratification.

7. For the ACtJHR to put optimum effect on the advancement of the regional rights protection system there should be continental-wide acceptance of its jurisdiction. Hence, the AU member States should ratify the Protocol establishing the African Court without further delay.

8. The AU should provide essential resources, including funding, for both the ACtJHR and the African Commission to carry out their task effectively.

9. For the Court to address the socio-economic needs of African people together with human rights, it should integrate human rights in to development issues. This is especially helpful to address the root causes of human right problems in the region.

10. The Statute of the ACtJHR should be amended in a way that it will accommodate States in to the advisory jurisdiction of the Court. This mainly enables States to approach the Court to test the compatibility of their domestic laws with international and regional human rights instruments. Furthermore, it will enable the Court to address human rights problems in States that are not party to the instrument vesting jurisdiction on the merits in the Court (the Single Protocol).

11. The AU organs dealing with peace, security and human rights should use their capacity to ask for an advisory opinion effectively, so that the ACtJHR will be effective enough in addressing human rights violations by non-state actors in a failed and failing States.

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Table of Cases

Cf Katabazi and 21 others v. Secretary General of the East African Community and Another, 1 November 2007, EACJ, Ref. No 1 of 2007.

Ebrimah Manneh v. The Gambia, Judgment ECW/ CCJ/ JUD/03/08, 5 June 2008.

Hadijatou Mani Koraou v. Niger, Judgment ECW/ CCJ/ JUD/06/08, 27 October 2008.

Michelot Yogogombaye v. The Republic of Senegal, ACtHPR, Application No. 001/2008.

Mike Campbell and Another (PVT) Limited v . The Republic of Zimbabwe, 13 December 2007, SADC (T) 2/2007.

The East African Law Society and 3 others v. Attorney General of Kenya and 3 Others , 1 September 2008, EACJ, Ref. No.3 of 2007.

[...]


[1] African (Banjul) Charter on Human and Peoples’ Rights, adopted 27 June 1981,OAU,Doc,CAB/LEG/67/3rev.s,21 I.L.M.58(1982),entered in to force 21 October 1986.

[2] All African states were/are members of OAU except Morocco, which withdrew from OAU in 1976 as a result of the recognition of the Democratic Arab Saharawi Republic.

[3] Amnesty International, The African Court of Human and Peoples’ Rights: an opportunity to strengthen Human Rights Protection in Africa,(July 2002:IOR/63/001/2002), p. 3., aavailble at < http://www.amnesty.org/en/library/asset/IOR63/001/2002/en/d64b3e43-d863-11dd-9df8-936c90684588/ior630012002en.pdf> , last accessed on 22 April 2010.

[4] Ibid., p. 4.

[5] African Court of Justice, available at <http://www.aict-ctia.org/courts_conti/acj/acj_home.html>, July2002, last accessed on 29 November 2009.

[6] See the Decisions of the AU Assembly of Heads of States and government, Third Summit held in Addis Ababa, Ethiopia, 6-8 July 2004: document Assembly/AU//Dec.45 (III); available at <www.africa-union.org/>, last accessed on 1 November 2009.

[7] See para 2 of the decision.

[8] Amnesty International; supra note 3, p. 4.

[9] Ibid., p. 6.

[10] Ibid

[11] See the preamble of the protocol establishing the African Court of Justice Human Rights (The single protocol).

[12] Ibid., p. 9.

[13] B. Gawanas, ‘The African Union: Concepts and Implementation Mechanisms Relating to Human Rights’, available at, <www.kas.de/upload/auslandshomepages/namibia/Human_Rights_in_Africa/6_Gawanas.pdf>, last accessed 3 March 2010.

[14] V.O. Nmehielle, The African Human Rights System: Its laws, practice and Institutions, ( The Hague: Martinus Nijhoff Publishers, 2001) p. 68.

[15] Ibid.; It was held in Manchester in 1945.

[16] Ibid.

[17] M. Evans and R. Murray (ed.), The African Charter on Human and Peoples Rights, The System in Practice 1986-2006, ( Cambridge University Press, 2008) p. 1.

[18] Ibid.; It organized under the auspices of the International Commission of Jurists (ICJ), in January 1961, in Lagos, Nigeria.

[19] The resolution is made available by the University of Pretoria at <www.up.ac.za/chr/ahrdb/other_OAU4.html#COM1> , last accessed 23 March 2010.

[20] R.Murray, Human Rights in Africa: From the OAU to the African Union, (Cambridge University press, 2004) p. 2.; this was especially reflected through various All-African Peoples’ Conferences held in the late 1950s and early 1960s with the purpose of encouraging those who were not yet liberated to liberate themselves and to organize non-violent revolution in Africa.

[21] The ’Monrovia’ bloc was consisted of Ethiopia, Liberia, Nigeria, Sierra Leone, Somalia and Togo established at the conference of Monrovia (Liberia).

[22] The ’Casablanca’ group was consisted of Egypt, Algeria, Ghana, Guinea, Libya, Mali and Morocco.

[23] Murray, supra note 20, p. 3.

[24] Ibid.

[25] G. Naldi, The Organization of African Unity: An Analysis of its Role (Mansell Publishing Limited, 1999) p. 2.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Nmehielle, supra note 14, p. 68; Nmehielle also forwards another reason citing Para. 8 of the OAU Charter’s preamble; the founding fathers of the OAU were persuaded that “the Charter of the UN and the UDHR, [to] the principles of which [they] affirm [their] adherence, provide a solid foundation for peaceful and positive cooperation among states.

[31] See Article 2 (1) (b) of the OAU Charter.

[32] E.Ankumah, The African Commission on Human and Peoples’ Rights: Practice and Procedures, (Martinus Nijhoff Publishers, 1996) p. 4.

[33] G.W.Mugwanya, Human Rights in Africa: Enhancing Human Rights through the African Regional Human Rights System, (Transnational Publishers, 2003) p. 172.

[34] Art. 111(6) of the OAU Charter.

[35] Ankumah, supra note 32.

[36] Mugwanya, supra note 33, p. 174; the OAU spent many of its early years supporting the liberation of colonized entities and giving assistance to liberation movements, the OAU had also condemned and struggled against the nasty South African apartheid regime by linking human rights issues with what was happening, the OAU has also worked on other smaller human right issues like labor rights, refugee and etc.

[37] Ankumah, supra note 32.

[38] Ibid., p. 5.

[39] N. Fegley, Equatorial Guinea- An African Tragedy, (New York 1989), p. 82.

[40] Ibid.

[41] Ankumah, supra note 32, p. 5.

[42] O.Ojo and A. Sesay, ‘The OAU and Human Rights: Prospects for the 1980’s and Beyond’, 8:1 Human Rights Quarterly, (February 1986) p.91−92.

[43] Botswana and Zambia are also among the states which protested and boycotted the 12th Assembly of Heads of States and Government of the OAU held in Kampala (Uganda) in 1975.

[44] Official Statement issued by Ministry of Information and Broadcasting, Dar es Salaam, 25 July 1975, Africa Contemporary Record4 (1975-1976) p. 22.

[45] At the 16th Ordinary Session held in Monrovia, Liberia from 17-20 July 1979.

[46] Quoted from O.ojo, ‘Understanding Human Rights in Africa’, paper presented for Netherlands Commission for UNESCO Conference of Human Rights: Individual Rights or Collective Rights (June 1988) P. 2.

[47] Ankumah , supra note 32, p. 6.

[48] Ibid.

[49] Ibid.

[50] Evans and Murray, supra note 17, p. 6.

[51] Ibid.; the document then was submitted to the OAU’s Council of Justice Ministers six months later in Addis Ababa Ethiopia, on 24 March 1980. Nevertheless, the meeting was not held due to lack of quorum. Hence, the discussion on the draft was postponed. Many think that the lack of quorum was not a coincidence; rather it was the result of the enmity of certain governments which, without being able to express their position openly, did not support the adoption of human rights charter by the OAU. See. Evans and Murray, supr a note 17, p. 6.; Ankumah, supra note 32, p. 6.

[52] In January 1981 and the draft was then submitted to the OAU Council of Ministers in accordance with OAU practice. The Council submitted the Banjul text without further amendments to the 18th General Assembly of Heads of state and Government for acceptance.

[53] R. Murray, The African Commission on Human and Peoples’ Rights and International Law, (Hart Publishing Ltd., Oxford, England, 2000) p. 10.

[54] Mugwanya, supra note 33, p. 187; Mugwanya in Chapter six of his book broadly discussed the universal nature of the Banjul Charter in light of the preamble and specific provisions.

[55] Preamble to the Banjul Charter, Paras. 3 and 9.

[56] Ankumah, supra note 32, p.6.

[57] Murray, supra note 53, p.10.

[58] Arts. 2-13 of the Charter.

[59] Arts. 14-18 , Ibid.

[60] Arts. 19-24 Ibid.

[61] ArtS. 27-29, Ibid.

[62] The main events that lead to the establishment of the AU: The Sirite Extra Ordinary Session (1999) decided to establish an African Union; the Lome Summit (2000) adopted the Constitutive Act of the Union; the Lusaka Summit (2001) drew the road map for the implementation of AU; the Durban Summit (2002) launched the AU and Convened the first Assembly of Heads of States of the African Union.

[63] Though it cannot be denied that the OAU played a great role in the decolonization of countries and peoples’, it did not expressly manifest the values inherent in human rights norms and standards as they relate to individual and group. Moreover, by seeking the position of non-interference and doctrine of sovereignty of member states, the OAU became ineffective in promotion and protection of human rights in Africa; See B. Gawanas, supra note 13.

[64] Evans and Murray , supra note 17, p. 20.

[65] AGH/Dec.2 (XVII) Rev.1.para.3.

[66] See Murray, supra note 20, p. 31.

[67] Various bodies were established by the OAU in order to achieve the goal of ‘African Common market’; among this was the Abuja Treaty (12/05/1994) which created the AEC; see Murray, supra note 20, p. 31.

[68] Evans and Murray, supra note 17, p. 21.

[69] Gawanas, supra note13, p. 139.

[70] Art 3 (g) of the Constitutive Act.

[71] Art. 3 (h), Ibid.

[72] Art. 3 (e), Ibid.

[73] Art. 4 (i), Ibid.

[74] Art. 4 (m) and (p), Ibid.

[75] Art. 4 (h), Ibid.

[76] Evans and Murray, supra note 17, p. 23; see also A. Lioyd and R. Murray, ‘Institutions with Responsibility for Human Rights Protection under the African Union’, 48 Journal of African Law (2004) p. 165.

[77] Gawanas, supra note13, p. 144.

[78] W. Okuma, ‘The African Union: Pitfalls and Prospects for Uniting Africa’, 62:2 Journal of International Affairs (Spring 2009), p. 93.

[79] Paul J. Magnarella, ‘Achieving Human Rights in Africa: The Challenge for the New millennium’; African Studies Quarterly, the online journal of African Studies; available at < www.africa.ufl.edu/asq/v4/v4i2a2.htm>, last accessed on 1 March 2010.

[80] Ibid.

[81] Ibid.

[82] Ibid.

[83] Mugwanya, Supra note 33, p. 55.

[84] Ibid.

[85] Ibid.

[86] Evans and Murray, supra note 17.

[87] The Commission is composed of eleven members who serve part-time on the Commission.

[88] Mugwanya, supra note 33, p. 243.

[89] See Art. 47 of the Banjul Charter.

[90] The Commission’s mandate to entertain individual Communications arises from the provisions of Art 45(2) and 55 of the Charter. Art. 45(2) empowers the Commission to “ensure the protection of human and peoples’ rights under conditions laid down by the present Charter.” Art. 55 provide for ‘other’ communications, rather than inter-State communications enshrined under Art.47.

[91] G. Bekker, ‘The African Court on Human and Peoples’ Rights: Safeguarding the interest of African Stats’, 5:1 Journal of African Law (2007) p. 157.

[92] Mugwanya argues that the promotional mandate of the Commission surpasses that of other international human rights institutions.

[93] Art. 45 (1) (b) and (c) of the Banjul Charter.

[94] See Mugwanya, supra note 33, p. 244.

[95] Although the Commission is nominally independent, its members are elected by the Heads of state and it is frequently composed of government representatives rather than independent experts. See Carolyn M. Shaw, ‘The Evolution of Regional Human Right Mechanisms: A Focus on Africa’, 6 Journal of Human Rights (2007) p. 215.

[96] Since there is no specific provision in the Charter compelling states to comply with the recommendations of the Commission, “the victims [of violations of the Charter] find themselves without remedy” (Para. 6 of ‘Non- compliance of state parties to Adopted Recommendations: A Legal Approach’, 24th Ordinary Session of the Commission, Banjul, 22-31 October 1998 Doc/OS/SOB (XXIV)).

[97] Bekker, supra note 91, p. 158.

[98] See Nmehielle, supra note 14, p. 248.

[99] F. Viljoen, International Human Rights Law in Africa, (Oxford University Press, 2007), p. 421.

[100] Ibid.

[101] Scholars suggest that the drafting committee of the Banjul Charter inserted Art 66 intentionally, which implies the necessity and possibility of creation of a court in the future through an additional protocol; see Nmehielle, supra note 14, p. 250.

[102] Nmehielle, supra note 14, p. 250.

[103] Ibid.

[104] African International Courts and Tribunals, ‘The African Court on Human and Peoples’ Rights’, available at < http://www.aict-ctia.org/courts_conti/achpr/achpr_home.html>, last accessed 1 March 2010.

[105] Amnisty International, supra note 3, p. 3

[106] Ibid.

[107] The first draft was made in Cape Town, from 6 to 12 September, 1995. After receiving feedback on the first draft at the 65th OAU summit held in February 1997 in Tripoli, Libya; another expert meeting was arranged in April 1997 to finalize the draft protocol at Nouakchott, Mauritania from 11-14 April, 1997. Further a third Government Legal Experts meeting, which included diplomats, was arranged at Addis Ababa from 8-11 December 1997 to examine and finalize the draft protocol to be submitted to the Conference of Ministers of Justice/ Attorneys-General for consideration and adoption. Finally, the council of Ministers approved the Draft in February 1998, while the Assembly of Heads of State and Government adopted the protocol in June 1998.

[108] ‘A critical analysis of the African Court on Human and Peoples’ Rights’, available at < www.saifac.org.za/docs/res_papers/RPS%20No.%2026.pdf>, last accessed on 2 March 2010.

[109] The judgment and the separate opinions are available at < www.african-court.org/en/cases/latest-judgments/>, last accessed on 2 March 2010.

[110] Art. 5 of the Constitutive Act; see also Art 2(2) of the protocol establishing the Court of Justice.

[111] See Paras. 4 and 8 of the preamble to, ’the Single Protocol’.

[112] M. Hansungule, ’African Court and the African Commission on Human and Peoples’ Rights; in Anton Bösl and Joseph Diescho (eds.), Human Rights in Africa: Legal Perspectives on their Protection and Promotion, (Konrad Adenauer Stiftung, Windhoek, 2009) p. 235.

[113] Ibid.

[114] Ibid.

[115] 21 countries have signed the protocol, from which only Mali and Libya ratified it yet.

[116] Art. 5 of the protocol states that “Cases pending before the African Court of Human and Peoples’ Right, that have not been concludes before the entry in to force of the present protocol, shall be transferred to the Human Rights section of the African Court of Justice and Human Rights on the understanding that such cases shall be dealt with in accordance with the protocol to the Africa Charter on Human and Peoples’ Rights on the establishment of African Court on Human and Peoples’ Rights.”

[117] Art. 16, the Statute of the African Court of Justice and Human Rights.

[118] Art.17(1), Ibid.

[119] Art. 17 (2), Ibid.

[120] Art.18, Ibid.

[121] Art. 3, Ibid.

[122] G. Bekker, ‘Recent developments in the African Human Rights System 2008-09’, 9:4 Human Rights Review, oxford Journals (2009) p. 673.

[123] Hansungule, supra note 112, p. 241.

[124] Art. 21, the Statute of the African Court of Justice and Human Rights.

[125] Art. 4, the Statute of the African Court of Justice and Human Rights.

[126] Hansungule, supra note 112, p. 241.

[127] Ibid.

[128] Art 5(2), 7(1) and (5), the Statute of the African Court of Justice and Human Rights.

[129] Hansungule , supra note 112, p. 244.

[130] Ibid.

[131] See Evans and Murray, supra note 17, p. 429; the jurisdiction enumerated under Art 29 seems to be so much connected with the General Section of the Court.

[132] Art 29 (1) (c), the Statute of the African Court of Justice and Human Rights.

[133] This provision majorly defines entities that have got standing before the Human Rights Section of the Court.

[134] The cumulative reading of Art. 8 (3) and Art. 30 (f) indicates that, individuals and NGOs’ accredited to the AU or to its organs can only submit cases against a State if the State concerned has made a declaration accepting the competence of the Court to do so under Art 8 of the Single Protocol.

[135] Art 53 (1), the Statute of the African Court of Justice and Human Rights.

[136] Bekker, supra note 122, p. 674.

[137] See Evans and Murray, supra note 17, p. 432.

[138] Art 42, the Statute of the African Court of Justice and Human Rights.

[139] Art 44, Ibid.

[140] Art 43 (2), Ibid.

[141] Art 43 (5), Ibid.

[142] Hansungule , supra note 112, p. 247.

[143] Solomon T. Ebobrah, ‘Human Rights Developments in Sub –Regional Courts in Africa during 2008’, 9:1 Africa Human Rights Law Journal, Center for Human Rights, University of Pretoria, South Africa (2009) p. 313.

[144] F. Viljoen, supra note 99, p. 488.

[145] Oliver C Ruppel, ‘Regional Economic Communities and Human Rights in East and Southern Africa’, in Anton Bösl and Joseph Diescho (eds.), Human Rights in Africa: Legal Perspectives on their Protection and Promotion, (Konrad Adenauer Stiftung, Windhoek, 2009) p. 276.

[146] F. Viljoen, supra note 99, p. 496.

[147] During its inception the organization was consisted of 15 member states which include Benin, Burkina Faso, Cote d’Ivoire, The Gambia, Ghana, Guinea Bissau, Liberia, Mali, Mauritania, Nigeria, Niger, Serra Leone and Togo. Cape Verde latter on acceded to the treaty in 1975, increasing the membership to 16. However Mauritania withdrew its member ship in 2000, bringing down membership to 15 again.

[148] Art 2(1) of the 1975 ECOWAS Treaty.

[149] F. Viljoen, supra note 99, p. 503.

[150] Supplementary Protocol A/SP1/01/05 Amending protocol A/P1/7/91 relating to the Community Court of Justice adopted in 2005.

[151] Solomon, supra note 143, p. 313.

[152] Judgment ECW/ CCJ/ JUD/03/08, judgment delivered on 5 June 2008.

[153] Judgment ECW/ CCJ/ JUD/06/08, judgment delivered on 27 October 2008.

[154] COMESA is the second largest Sub-Regional Economic Community next to CEN-SAD in Africa encompassing countries from Eastern to South Africa; it even extends to the North with the membership of Egypt. Currently it has 19 member states. See < http://about.comesa.int/ >, last accessed on 20 April 2010.

[155] F. Viljoen, supra note 99, p. 492.

[156] Art. 6(g), COMESA Treaty.

[157] Art. 6 (e), Ibid.

[158] Art. 19, Ibid.

[159] Art. 26, Ibid.

[160] Art. 29 (1), Ibid.

[161] Art. 29 (2), Ibid.

[162] Art. 30, Ibid.

[163] Art. 31 (1), Ibid.

[164] Art. 6(1) and 7(2), EAC Treaty.

[165] Art. 3 (3) (b), Ibid.

[166] Oliver, supra note 145, p. 306.

[167] Cf Katabazi and 21 others v . Secretary General of the East African Community and Another Case (Ref. No 1 of 2007) [2007] EACJ 3 (1 November 2007).

[168] The East African Law Society and 3 others v. Attorney General of Kenya and 3 Others, 1September 2008, ECJ, Ref. No.3 of 2007.

[169] SADC currently has 15 member states, which includes Angola, Botswana, the DRC, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, the Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe.

[170] Art 4 of the amended SADC Treaty.

[171] F. Viljoen, supra note 99, p. 499.

[172] Oliver, supra note 145, p. 294.

[173] The Tribunal began hearing cases in 2007, and has seen 17 cases filed with it till to date; see Ibid. p294.

[174] Oliver, supra note 145, p. 296.

[175] Art. 15 (2), Protocol on the Tribunal and Rules of Procedure.

[176] Art. 16 (5), SADC Treaty.

[177] F. Viljoen, supra note 99, p. 505.

[178] Mike Campbell and Another (PVT) Limited v . The Republic of Zimbabwe Case, 13 December 2007, SADC (T) 2/2007.

[179] The Zimbabwean government has officially announced that it will not accept the judgment.

[180] Art. 30 (b) of the Statute of ACtJHR confers the power to submit cases directly before the Human Rights Section of the African Court to the African Commission.

[181] Nmehielle, supra note 14, p. 262.

[182] See the discussion on African Court on Human and Peoples’ Rights in Evans and Murray, supra note 17, p. 43.

[183] Makau Mutua, ‘The African Human Rights Court: A Two-Legged Stool?’,

21:1 Human Rights Quarterly, John Hopkins University Press (1999), pp. 3423−63.

[184] Ibid.

[185] Ibid.

[186] Ibid.

[187] Ibid.

[188] Individual cases will reach the Court in two ways: direct access to the Court by individuals is allowed only to citizens of States that made a prior declaration as per Art 8(3) of the Single Protocol. The other route is that when the African Commission refers a case to the court after considering a communication, since the Commission is provided with a direct access to the Court as per Art. 30 (b) of the Statute of ACtJHR.

[189] Human Rights Education Associates, ‘The Inter-American Human Rights System’, available at <http://www.hrea.org/index.php?doc_id=413> , last accessed 16 April 2010.

[190] A critical Analysis of the African Court on Human and Peoples’ Rights, available at < http://www.saifac.org.za/docs/res_papers/RPS%20No.%2026.pdf >, last accessed 16 April 2010.

[191] F. Viljoen, supra note 99, p. 473.

[192] Ibid.

[193] Ibid.

[194] Makau Mutua, supra note 183.

[195] Ibid.

[196] Ibid.

[197] Ibid.

[198] Ibid.

[199] Art. 46, the Statute of the African Court of Justice and Human Rights.

[200] Art. 28 (c) of the ACtJHR Statute.

[201] Art. 45 (3) of the Banjul Charter.

[202] F. Viljoen, supra note 99, p. 425.

[203] Ibid.

[204] Art. 35 of the Statute of ACtJHR.

[205] F. Viljoen, supra note 99, p. 426

[206] See Arts. 35 and 46 of the Statute of ACtJHR.

[207] Art. 43 (6) of the Statute of ACtJHR.

[208] Art. 46 (4) and (5), Ibid.

[209] Art. 4, Ibid.

[210] Art. 12, Ibid.

[211] See Report of 8th meeting of UN Treaty Bodies, UN General Assembly, UN. Doc. A/52/507, para 68.

[212] Amnesty International, supra note 3, p. 13.

[213] Bekker, supra note 91, p. 157.

[214] Hansungule, supra note 112, p. 241.

[215] Ibid.

[216] Art. 59 (1) of the Banjul Charter.

[217] F. Viljoen, supra note 99, p. 427.

[218] Ibid.

[219] Ibid.

[220] Art. 39 of the Statute of ACtJHR.

[221] See Arts. 43 (4), (5) and (6), Ibid.

[222] F. Viljoen, supra note 99, p. 460.

[223] Ibid, p. 461

[224] Mugwanya, supra note 33, p. 322.

[225] Ibid., p. 323.

[226] Ibid.

[227] F. Viljoen, supra note 99, p. 501.

[228] Ibid.

[229] EC Treaty, Art. 234 (formerly Art 177).

[230] See EAC Treaty Art. 34; SADC Treaty Art. 16; COMESA Treaty Art. 30.

[231] Oliver, supra note 145, p. 283.

[232] F. Viljoen, supra note 99, p. 502.

[233] For example see Arts. 19 (2) and 22 (1) of the ECOWAS Court Protocol.

[234] M. Mutua, supra note 183.

[235] Mugwanya, supra note 33, p. 348.

[236] Ibid., p. 351.

[237] Nmehielle, supra note 14, p. 243; see also Makau Mutua, supra note 183; Mugwanya, supra note 33, p. 350.

[238] Mugwanya, supra note 33, p. 350.

[239] For example through its Resolution on Freedom of Expression adopted at its 11th session; its decision in Communication 101/93, civil Liberties Organization, in the Nigerian Bar Association, and other decisions the Commission strictly interpreted limitation to rights.

[240] Only Mali and Libya have ratified the single protocol yet.

[241] Human Rights Education Association, supra note 189.

[242] Amnesty International; supra note 3, p. 10.

[243] D. Kuwali, Persuasive Prevention: Implementation of the AU Right of Intervention, (University of Lund, Faculty of Law, 2009), p. 177.

[244] Six years has been spent to secure the required 15 ratification instruments in order to establish the African Court of Human and Peoples’ Rights. And presently, only 16 member States, out of 53, of the AU has ratified the Protocol.

[245] See also Kuwali, supra note 243, p. 177.

[246] F. Viljoen, supra note 99, p. 505.

[247] See Bakker, supra note 91.

[248] See Art 26 (2) of the Statute of ACtJHR.

[249] J. Magnerella, supra note 79.

[250] Ibid.

[251] F. Viljoen, supra note 99, p. 468.

[252] Ibid.

[253] Ibid.

[254] Art 53(1) of the Statute of ACtJHR.

[255] Nmehielle, supra note 14, p. 272.

[256] Ibid.

[257] F. Viljoen, supra note 99, p. 454.

[258] Art 45 (3) of the Banjul Charter.

[259] See Kuwali, supra note 243, p. 177.

[260] Evans and Murray, supra note 17, p. 437.

[261] Ibid.

[262] Ibid.

[263] M. Mutua, supra note 183.

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2010
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9783656700296
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859 KB
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v276768
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Lunds Universitet
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african court justice human rights opportunity protection

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Titel: The African Court of Justice and Human Rights: An Opportunity to strengthen Human Rights Protection