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African Court Of Human And Peoples' Rights - Description [2004] PICTRes 13 (18 April 2004)
African Court Of Human And Peoples' Rights
The
African Court on Human and Peoples' Rights (ACHPR) is the most recent
of the three regional human rights judicial bodies. It was established
in 1998 by a protocol,
12 years after the entry into force of the African
Charter on Human and Peoples' Rights, concluded in 1981 in Banjul, Gambia,
under the aegis of the Organization of African Unity (OAU). The Protocol
establishing the ACHPR has not yet entered
into force and therefore much
of the data regarding its functioning is not yet available. Yet, because
of several
peculiar structural and legal features, it has nonetheless
been included here.
Unlike the European and Inter-American systems for the protection of human
rights, where the ECHR and the IACHPR
are integral parts of the cardinal
instrument of the system ab initio, in the case of Africa, the
establishment of a regional judicial body to ensure the implementation
of the fundamental
agreement is rather an afterthought.
Before the adoption of the ACHPR Protocol, the protection of rights listed
in the African Charter rested solely
with the African Commission on Human
and Peoples' Rights, a quasi-judicial body, modeled on the UN Human Rights
Committee, with no binding powers. In particular, under the African Charter,
the Commission's functions are limited
to examining state reports, considering
communications alleging violations, and interpreting the Charter at the
request of a State party, the OAU, or any organization recognized by the
OAU. The scantiness of the enforcement and
compliance control mechanism
contained in the African Charter, however, is hardly surprising. At the
time the
OAU adopted the African Charter, very few African States (i.e.,
Gambia, Senegal, and Botswana), could vaunt of a democratic
regime respectful
of at least the fundamental human rights.
In the second half of the 1990s, advancements of democracy in several
African states (e.g., Namibia, Malawi, Benin,
South Africa, Tanzania,
Mali, and Nigeria) and the weak record of the African Commission heightened
the need
for stronger domestic and regional guarantees for the protection
of human rights, making the establishment of the ACHPR
possible.
Such a renewed impetus toward more effective protection of human rights
accounts also for certain features of
the ACHPR which set it apart, not
only from its American and European congeners, but from all other judicial
bodies. In particular, the Protocol provides that actions may be brought
before the Court on the basis of any instrument,
including international
human rights treaties, which have been ratified by the State party in
question (article
3.1). Furthermore, the Court can apply as sources of
law any relevant human rights instrument ratified by the State in
question,
in addition to the African Charter (article 7). In other words, the ACHPR
could become the judicial
arm of a panoply of human rights agreements
concluded under the aegis of the United Nations (e.g., the International
Covenant on Civil and Political Rights, the Convention on the Elimination
of all Forms of Discrimination against
Women, or the Convention on the
Rights of the Child) or of any other relevant legal instrument codifying
human
rights (e.g., the various conventions of humanitarian law, those
adopted by the International Labour Organization, and
even several environmental
treaties). Very few of those agreements contain judicial mechanisms of
ensuring their
implementation, and therefore, at least potentially, several
African states could end up with a dispute settlement and
implementation
control system stronger and with more bite than the one ordinarily provided
for by those treaties
for the rest of the world.
Another peculiarity of the ACHPR concerns the standing of individuals
and NGOs. Unlike any other judicial body,
advisory opinions can be asked
for by not only member States and OAU organs, but by any African NGO that
has
been recognized by the OAU. Again, this is another provision that,
if the Protocol establishing the ACHPR enters into force
and if the OAU
recognizes NGOs liberally, might eventually strengthen the ACHPR's promotional
function. Conversely,
in the area of contentious jurisdiction, individuals
can bring cases but only if, at the time of the ratification of the
Draft
Protocol or thereafter, the State at issue has made a declaration accepting
the jurisdiction of the Court
to hear such cases. This is a step forward
from the Inter-American Court, where individuals have no standing at all,
but it is still far from the progressive attitude of the new European
Court of Human Rights.
Data obtained from the Project on International Courts and Tribunals (PICT)
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