African Court on Human and Peoples’ Rights
Regional and international human rights courts are very important in international relations. In this article, we will detail the African Court on Human and Peoples’ Rights, and the impact the African court has had on the protection of human rights in the region. We will discuss the history of the African Court on Human and Peoples’ Rights, the mandate of the African Court on Human Rights, areas of effectiveness, and also critiques of the court.
What is the African Court on Human and Peoples’ Rights?
The African Court on Human and Peoples’ Rights is a regional human rights court derived initially from the African Charter on Human and Peoples’ Rights, although more directly, it was the 1998 Protocol of the African Charter on Human and Peoples’ Rights that specifically outlined the African human rights court. While this was not the first human rights judicial based body in Africa (the African Commission on Human and Peoples’ Rights existed), it would further add to the tools available in the quest to ensure human rights in Africa (Mutua, 1999).
The history of the African Court on Human and Peoples’ Rights comes out of the history of the African Charter on Human and Peoples’ Rights, and also what were viewed as significant failures regarding human rights protections in the region. Part of the problem was that state judiciaries did not have the needed authority to deal with human rights abuses. Because of this, and the numerous cases of violence and human rights violations, citizens throughout the region were losing hope that their respective judiciaries were going to bring any form of justice (Udombana, 2000). Thus, in part, the African human rights charter was an attempt to stress the importance of human rights in the region.
However, after what was viewed as an ineffective African Commission, in 1993, NGOs and state leaders themselves called for the formation of such as human rights court. In November, NGOs talked about a draft protocol, and then established a working group (comprised of five individuals). Then, the final document was sent to the OAU the following year (in 1994). This work, “at the group’s request, was included in the provisional agenda of the Thirtieth Ordinary Session of the OAU Assembly, held in June 1994. It was at this Session that the OAU adopted the first resolution reaffirming the need for the establishment of the Court to complement and reinforce the Commission.179 The resolution specifically requested that the OAU Secretary-General convene a meeting of government legal experts, in conjunction with the Commission, to ponder the need, and process, for establishing the proposed Court” (Udombana, 2000: 80).
In 1995, organized by the OAU Secretariat, the African Commission, as well as the International Commission of Jurists, human rights experts in attendance put together a draft document regarding the future African human rights court (Mutua, 1999). Then, “Later that month, an OAU meeting of governmental legal experts produced the Cape Town Draft of the draft protocol for a human rights court. After several rounds of meetings and more drafts, the Draft Protocol was adopted by the conference of OAU Ministers of Justice/Attorneys General in December 1997. The OAU Council of Ministers adopted the Draft Protocol in February 1998,71 and the OAU Assembly gave its final blessing in June 1998, opening the Protocol for signature by OAU member states” (Mutua, 1999: 352). So, the African Court on Human and Peoples’ Rights is a statement of sorts against what has been largely seen as an African Commission unable to adequately deal with human rights matters (Mutua, 1999). Plus, there was a hope that this new human rights court in Africa will allow matters to be dealt within within the region, instead of referring them to the United Nations Security Council (Udombana, 2000) (One other reason for the formation of the African Court on Human and Peoples’ Rights had to do with the establishment of the African Economic Community (AEC Treaty), which was set up in 1991. The court had the power to deal with disputes within the Treaty (Udombana, 2000)).
Despite the support for this human rights court, the creation of the African Court on Human and Peoples’ Rights was not without controversy, particularly given the human rights abuses existing by so many of the African states at the time. So, for some, because of the lack of actual rights protected by the very states within the African Charter, there was a belief that maybe the African Court on Human and Peoples’ Rights must be set up, and would be the only entity that could actually help save the idea of a human rights system in Africa. However, as Mutua (1999) writes, “[t]he other view is gradualist and sees the work of the African system as primarily promotional and not adjudicative.62 According to the gradual view, the major problem in Africa is the lack of awareness by the general populace of its rights and the processes for vindicating those rights. Proponents argue that the regional system must therefore first educate the public by promoting human rights. The task of protection, which would include a human rights court, is seen here as less urgent” (351-352). There were also others who felt that given the weaknesses of of the African Charter on Human Rights and Peoples’ Rights, that instead of spending time and money for the African Court on Human and and Peoples’ Rights, they should shore up the African Commission (Mutua, 1999).
Again, African states themselves were at first reluctant to support such a court. Part of the reason had to do with giving up sovereignty. However, another reason had to do with regards to approaches to justice. As Udombana (2002) notes “Traditionally, African leaders have always favored the use of quasi-judicial commissions (two such commissions will be briefly noted below), rather than a court with full judicial powers. The reason for this anti-court approach stems partly from the nature of African customary law29 and long-time dispute settlement practice. Traditional Af- rican dispute settlement places a premium on improving rela- tions between the parties on the basis of equity, good con- science, and fair play, rather than on strict legality. The African system “is one of forgiveness, conciliation and open truth, not legal friction or technicality.”30 African procedures favor consensus and amicable dispute settlement, frowning upon the adversarial and adjudicative procedures common to Western legal systems” (818). In fact, this could be seen as early as the beginning days of the Organization of African Union in 1963. It was at this time that following the creation of the organization that the states went against the idea of creating a court, namely the “Court of Mediation, Conciliation and Arbitration[,]” and instead chose to set up an ad hoc body by the name of the “Commission of Mediation, Conciliation, and Arbitration” (although the entity never acted on matters and was eventually ended) (Udombana, 2002: 819) .
How is the African Court on Human and Peoples’ Rights Structured?
The African Court on Human and Peoples’ Rights is comprised of eleven judges, who have to be citizens of a country within the African Union. With regards to choosing a judge, the person “elected in an individual capacity from among jurists of high moral character and of recognized practical, judicial or academic competence and experience in the field of human and peoples’ rights” (Udombana, 2000: 83). In addition, one country cannot have more than two judges serving on the African Court on Human and Peoples’ Rights at one time. Judges are elected, and serve a seven-year term. They are able to be re-elected for one additional term (Udombana, 2002). There are also calls for “adequate gender representation” when choosing judges for the African human rights court (Udombana, 2002).
What Does the African Court on Human and Peoples’ Rights Do?
While the African Court on Human and Peoples’ Rights was created to monitor and ensure the protection of human rights, there is a more specific set of roles that the court is able to address. Namely, “The AEC Court has “a very limited mandate” and is “entrusted with three basic tasks.”145 First, the Court will ensure adherence to law by interpreting and applying the AEC Treaty.146 Thus, failing an amicable settlement, parties to a “dispute regarding the interpretation of the application of the provisions of [the AEC] Treaty” may refer the mater to the Court.147 Second, the Court will provide advisory opinions requested by either the Assembly of Heads of State and Government or the Council of Ministers (now the Executive Council).148 Third, it will adjudicate disputes submitted to it pursuant to the AEC Treaty provisions” (Udombana, 2002). The African human rights court is meant to be there only in a sort of “last resort,” with the hope that disputes and complaints can be resolved before coming to the court. Again, the idea of settlement is valued (Udombana, 2002).
In addition, the court has the ability to issue advisory opinions on legal matters pertaining to disputes. In order for the court to issue an advisory opinion, there first must be a request. Then, each side will provide oral submissions. Following the submissions, the court will issue a ruling. Advisory opinions are an important component of the work that the African Court on Human and Peoples’ Rights (as well as other regional human rights courts) do. As Udombana (2002) notes, “the advisory opinions of the AU Court, like those of the ICJ,197 will, beside the immediate benefit to the advisee, provide guidance to domestic courts of AU States. It will also enable Member States to introduce necessary domestic re- forms or to oppose legislation that would be in breach of the AU Act. Governments also usually “find it easier to give effect to advisory opinion than to comply with a contentious decision in a case they lost.”198 Furthermore, advisory opinions “can provide speedy judicial responses to questions it would take years to determine in contentious proceedings, while avoiding the friction and bitterness judgments in contentious cases are likely to generate in some countries” (847).
Critiquing the African Court on Human and Peoples’ Rights
Despite the well intentions in creating the African Court on Human and Peoples’ Rights, the African Court of Human Rights is not without criticism. Among the primary critiques for the African court is the lack of real enfacement mechanisms. The court does not have the ability to punish states for their behavior. Furthermore, the various “clawback” clauses only weaken the African Court on Human and Peoples’ Rights. The African human rights court has language that seems to allow governments wiggle room in enforcing said law. These clawback clauses are spread throughout the document, and pose a serious challenge to the ability to hold states accountable on behavior regarding human rights (Singh, 2009).
Another critique of the court is that the African Court’s opinion are non-binding, and are advisory in nature (Udombana, 2000). So, like the criticisms of the African Charter on Human and Peoples’ Rights, there is a feeling that the African Court has no real authority to deal with human rights matters. Again, there is no punishment. The court cannot issue sanctions, or does not have a military to stop a government (or non-governmental actor) from committing rights violations. Some believe it is because of this that many of the state leaders within the African Union do not take the court seriously.
One of the other main criticisms of the African Court on Human and Peoples’ Rights has to do with the power of non-state actors with the court. Unfortunately, unlike states, individuals and non-governmental organizations do not have the same access to the court. In fact, “[i]n stark contrast [to states], individuals and NGOs cannot bring a suit against a state unless two conditions are met. First, the Court will have discretion to grant or deny such access.88 Second, at the time of ratification of the Draft Protocol or thereafter the state must have made a declaration accepting the jurisdiction of the Court to hear such cases” (Mutua, 1999: 355). Mutua (1999) points out that while the intention behind this decision may have been to ensure state buy-in into the system, the weakened voice of NGOs in the African human rights court is a great disservice to the overall human rights court and initiative.
The African Court on Human and Peoples Rights: Conclusion
The African Court on Human and Peoples’ Rights is an important regional court for human rights. However, as discussed, there continue to be large gaps in the protection of human rights, of which the court seems to be unable to deal with on account of its enforcement mechanisms. Part of the concern with states still taking the African Court on Human and Peoples’ Rights, along with the African human rights charter seriously is because of the calls for individual state sovereignty. In fact, take a look at the history of the Organization for African Union. Despite the various human rights abuses committed by countries, for a long period of time, the international organization was not willing to speak out against state human rights violations (Udombana, 2000).
In addition, as Singh (2008) notes, “Despite the optimism that surrounds these developments, there remains the danger that the political horse trading previously alluded to9 may result in the Court’s mandate remaining unfulfilled. This could for instance occur where the Court legitimises certain institutional practices of member states, however discriminatory they may be. In such cases, where there is an apparent bias in favour of a government, the perception that justice is not being served will prevail, thereby rendering the Court a political tool of African governments.”
African Court on Human and Peoples’ Rights References
Mutua, M. (1999). The African Human Rights Court: A Two-Legged Stool? Human Rights Quarterly, Vol. 21, No. 2, pages 342-363.
Singh, S. (2009). The impact of clawback clauses on human and peoples’ rights in Africa. African Security Review, Vol. 18, No. 4, pages 95-104.
Udombana, N.J. (2000). Toward the African Court on Human and Peoples’ Rights: Better Late Than Never. Yale Human Rights and Development Journal, Vol. 3, Issue 1, pages 45-67.
Udombana, N.J. (2002). An African Human Rights Court and an African Union Court: A Needful Duality or a Needless Duplication? Brooklyn Journal of International Law, Vol. 28, No. 3, pages 811-870. Available Online: http://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1350&context=bjil