Following the end of World War II, the African continent experienced a swift process of decolonisation. Attempting to bridge the gaping power vacuum, the Organisation of African Unity (OAU) was established in 1963, with a mandate to “promote the unity and solidarity of the African States.”⁽²⁾ Since its inception, increasing focus has been given to the advocacy and advancement of human rights as a primary aim for the institution. The creation of the African Court on human and people’s rights (African Court) represents a culmination of regional momentum on the rights of African citizens and recognition of the importance of the role that regional institutions must play in realising progress.

The African Court has, however, found itself plagued by accusations of inadequacy. Established in 1998 by the Protocol to the African Charter establishing an African Court on Human and People’s Rights (the Protocol), the Court is still not operational.⁽³⁾ Assessments of the Court and its continued lack of substance point to an absence of political will as fundamental. The ongoing internal competition between the Court and the African Commission on Human and People’s Rights (the Commission) also renders the Court unable to make significant progress.

This paper considers these limitations on the Court’s action, alongside its failure to provide comprehensive access for citizens and non-governmental organisations (NGOs) that wish to file complaints of rights violations. Ultimately, this paper suggests that until member states devote themselves to the cause of a regional court and promote its work as fundamental to progress, the Court will continue to remain little more than a redundant rhetorical device.

Background to the Court

The creation of the OAU in 1963 was a landmark in terms of regional cooperation, representing an opportunity for African States to take control of their future unhindered by colonial powers.⁽⁴⁾ In terms of promoting democracy and development premised on attention to human rights, however, the OAU failed to fulfil its obligations. It was through “...concern at the Organisation’s failure to react to various gross violations of human rights committed by dictators like Idi Amin in Uganda, Jean-Bedel Bokassa in the then Central African Empire and Francisco Macias Nguema in Equatorial Guinea, combined with a growing recognition of the importance of human rights” that the decision was made, in 1981, to adopt the African Charter on Human and People’s Rights (ACHPR).⁽⁵⁾ Intended as a means of garnering more concrete commitments from member states to international human rights standards, the ACHPR works to “encourage international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights” and ensure that States parties “promote and protect human and people’s rights in accordance with the African Charter on Human and People’s Rights and other relevant human rights instruments.”⁽⁶⁾ The ACHPR is, therefore, comprehensive in committing signatories to the human rights standards laid out in both international and regional instruments.

In accordance with the ACHPR, the mandate for monitoring and promoting adherence was given to the newly formed Commission. Laid out in Article 45, the Commission is tasked specifically to (1) “promote human and people’s rights,” (2) “ensure the protection of human and people’s rights,” and (3) “interpret all the provisions” laid out in the ACHPR.⁽⁷⁾ The decision to shy away from the creation of a Court at the time was consciously made: “it strategically omitted the creation of a court in order to achieve consensus regarding the human rights document. Instead, an African Commission was created with weakened supervisory powers and an inability to make binding decisions.”⁽⁸⁾ The Commission’s weaknesses with regards to enforcement and oversight remain significant concerns, particularly when considered in parallel with accusations of non-independence and a lack of follow-up mechanisms.⁽⁹⁾

Despite the decision to preclude the creation of a Court at the time of the ACHPR’s drafting, the idea of an African system to monitor and enforce human rights obligations dates back to 1961.⁽¹⁰⁾ With the Commission flagging in its ability to ensure adherence to the ACHPR provisions, the decision was made to establish an African Court. In June 1998, following four years of negotiations, the Protocol to the African Charter establishing an African Court on Human and People’s Rights was introduced at an OAU Summit in Burkina Faso.⁽¹¹⁾ The intention was for the Court to act in collaboration with the Commission: “the Preamble recites that the States parties to the Charter are ‘firmly convinced that the attainment of the objectives’ of the Charter ‘requires the establishment of an African Court’ to ‘complement and reinforce the functions’ of the Commission.”⁽¹²⁾ The Court was, therefore, envisaged to combat the limitations of the Commission in supplementing its “protective mandate...by issuing binding decisions and ordering specific remedies.”⁽¹³⁾ Efforts to ensure that the Court embodies the role laid out for it by the Protocol and create a comprehensive system of human rights enforcement have, however, been met with limited success. Until it is allowed to meet its obligations, the Court threatens to derail the African human rights project, rendering it little more than a smokescreen.

Problems in policy and practice

As noted above, 14 years after the introduction of the Protocol, the Court remains non-operational. Attempts to explain this lack of progress are numerous and dominated by the concern that “the goal of a functioning, effective Court threatens to be derailed by bureaucracy.”⁽¹⁴⁾ Most clearly at issue in terms of creating an independent and capable judicial institution is the lack of political will from States. To date, “only 24 out of the possible 53 member states of the African Union are parties to the Protocol...and even these signatures have only been possible after serious lobbying from members of civil society.”⁽¹⁵⁾ Obtaining the 15 signatures necessary for ratification was, in itself, a battle, taking six years from introduction of the Protocol.⁽¹⁶⁾ In addition, “only two – Mali and Burkina Faso – have granted individuals and NGOs direct access to the Court.”⁽¹⁷⁾ The ongoing struggle regarding State ratification of the Protocol and the unwillingness to grant access to the Court demonstrates a pervasive lack of commitment to the cause. As a regional institution, the Court is predicated on State cooperation and support; until it receives this, its capacity to work in a manner that is both comprehensive and effective will be severely constrained.

The Court also faces an additional problem in its rivalry with the mandate of the Commission. The Court was created to complement the work of the Commission and also to address its limitations, specifically “that its recommendations are not legally binding, that they have therefore not been implemented, [and] the African Commission’s lack of visibility on the continent to the wider public and its inadequate resources.”⁽¹⁸⁾ There remains, however, an ongoing turf-war between the two institutions, illustrated in a statement by one member of the African Commission who claimed that “despite numerous attempts to get members of the African Court on Human and People’s Rights to share and deliberate their draft rules of procedure with the African Commission on Human and People’s Rights, such efforts have been thwarted in what we believe is a superiority complex on their part.”⁽¹⁹⁾ This issue of internal competition reaches to the heart of the Court’s bureaucratic limitations. Facing a pervasive lack of support from AU member states, an inability to work effectively with complementary institutions further stymies any hope of significant progress. Given the Commission’s position as the principal regional human rights mechanism since its inception in 1981, it is perhaps unsurprising that there would be an unwillingness to share jurisdiction and yield an element of control. Until this problem is overcome, however, and the Court and Commission embrace the Protocol’s vision of the two as complementary, victims of violations will be unable to seek comprehensive redress.

The final issue of contention with regards to the Court’s function – and perhaps the most serious in terms of offering recourse for victims – is its accessibility procedures. The Protocol establishes, under Article 5(1), that “only the Commission, States parties and African Intergovernmental Organisations have automatic access to the Court.” Only individuals and NGOs with observer status, granted direct access by States parties, have the ability to bring cases before the Court.⁽²⁰⁾ Not only does this procedure depend on State willingness to grant access (unlikely given the general lack of political will), it represents “a scheme of access to a human rights court in which primacy is given to the state [which] defies the conventional understanding of international human rights law.”⁽²¹⁾ It thus runs contrary to “the primary raison d’être of international human rights law, namely to protect the individual or groups against inimical conduct of the state.”⁽²²⁾ The Court’s accessibility procedure is therefore subject to a two-fold set of concerns. The first questions its failure to allow direct access to the individual, the target of international human rights law. The second concerns a reliance on States parties as incentivised to grant direct access to individuals and NGOs in a context of endemic political unwillingness and governments as human rights violators. The Court’s procedure favours the State and, consequently, favours decisions based on political expedience and diverse motivations; the failure of AU member states to give concrete support to the Court suggests it is unlikely that they will open up avenues for their citizens to bring cases to the institution.

When taken together, these concerns regarding the Court’s policy and practice represent a significant obstacle to the creation of an institution that effectively pursues the human rights agenda. Plagued by bureaucratic concerns and a lack of external support, the Court is rendered unable to fulfil its obligations. Its distorted accessibility procedures also ensure that, were the Court to become fully functioning, victims of human rights violations would be severely limited in their ability to seek recourse through the institution. As it stands, the Court is both a reflection and result of unsubstantiated political rhetoric.

Towards justice

Despite the obstacles in its path, there remains a significant opportunity for the Court to take on the role laid out for it by the Protocol. The ability to make such progress is, however, highly dependent on the willingness of African states to give themselves over to the institution’s jurisdiction and enforce its decisions. Laying a foundation for the Court and enforcement of the ACHPR will require a multifaceted effort: “the African system – in part through the work of the Commission – must raise the costs to states of violations through one or another of the sanctions with which other human rights regimes are familiar.”⁽²³⁾ States parties must be incentivised to meet their obligations under the ACHPR and, subsequently, to enforce the Court’s decisions. As such, the AU’s willingness to impose sanctions is fundamental. The Court must also look externally to other human rights institutions as a means of making progress. With regards to accessibility, the Court should examine the European Court on Human Rights and its availability to cases brought by individuals.⁽²⁴⁾ Although unlikely that the Court would be able to directly mimic the procedures of other regional institutions, particularly given the continent’s unique cultural, historical and political context, comparison serves as a useful tool in judging both successes and failures.

As a relatively new institution, the Court will undoubtedly find itself subject to a number of unforeseen challenges. It is important, however, that in facing these obstacles, it have access to a repository of regional and international support. The unwillingness of AU members to give themselves over to the Court’s jurisdiction represents the most immediate problem to the institution’s legitimacy and, unfortunately, there is no short-term solution. Rather, a combination of international pressure and internal coherence devoid of bureaucratic competition would likely give momentum to regional support for the initiative. Yet until such a time as the continent is seen to unite on the cause of consistent human rights adherence and enforcement, victims of violations will remain restricted in their ability to make their voices heard.

Written by Written by Laura Clarke ⁽¹⁾

NOTES:

(1) Contact Laura Clarke through Consultancy Africa Intelligence’s Rights In Focus Unit (rights.focus@consultancyafrica.com).
(2) ‘OAU Charter’, Organisation of African Unity, 1963, http://www.au.int.
(3) Wachira, G., ‘African Court on human and people’s rights: Ten years on and still no justice’, Minority Rights Group International, 2008, http://www.minorityrights.org.
(4) Steiner, H., Alston, P., and Goodman, R., 2007. International human rights in context. Oxford University Press: New York.
(5) Ibid.
(6) ‘African Charter on Human and People’s Rights’, Organisation of African Unity, 27 June 1981, http://www.unhcr.org.
(7) Ibid.
(8) Lyons, S., 2006. The African Court on human and people’s rights. ASIL Insights, 10(24), http://www.asil.org.
(9) Wachira, G., ‘African Court on human and people’s rights: Ten years on and still no justice’, Minority Rights Group International, 2008, http://www.minorityrights.org.
(10) Ibid.
(11) Ibid.
(12) Steiner, H., Alston, P., and Goodman, R., 2007. International human rights in context. Oxford University Press: New York.
(13) Wachira, G., ‘African Court on human and people’s rights: Ten years on and still no justice’, Minority Rights Group International, 2008, http://www.minorityrights.org.
(14) Ibid.
(15) Ibid.
(16) Lyons, S., 2006. The African Court on human and people’s rights. ASIL Insights, 10(24), http://www.asil.org.
(17) Wachira, G., ‘African Court on human and people’s rights: Ten years on and still no justice’, Minority Rights Group International, 2008, http://www.minorityrights.org.
(18) Ibid.
(19) Cited in Wachira, G., ‘African Court on human and people’s rights: Ten years on and still no justice’, Minority Rights Group International, 2008, http://www.minorityrights.org.
(20) Juma, D., 2007. Access to the African Court on human and people’s rights: A case of poacher turned gamekeeper. Essex human rights review, 4(2), pp. 1-21.
(21) Ibid.
(22) Ibid.
(23) Steiner, H., Alston, P., and Goodman, R., 2007. International human rights in context. Oxford University Press: New York.
(24) Lyons, S., 2006. The African Court on human and people’s rights. ASIL Insights, 10(24), http://www.asil.org.