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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.

PICT Data obtained from the Project on International Courts and Tribunals (PICT)

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