The African Court Merger

International human rights law is often thought of as emanating only from the United Nations. However there are different regional jurisdictions in the world that have developed human rights legislation, such as the African Union (AU), formerly the Organisation of African Unity (OAU), founded in 1963. This article will examine the various human rights mechanisms of the AU and the proposed merger of the existing African Court of Justice and the new African Court on Human and Peoples’ Rights.

The African Union

In spite of the organisation’s endorsement of the principles of the 1948 Universal Declaration on Human Rights in the preamble of the AU Charter, the protection of human rights within AU member states was not a major priority. The AU’s focus had been on political and economic independence, non-discrimination and the eradication of colonialism in the continent and apartheid in Southern Africa, at the expense of individual liberty. While condemning apartheid in South Africa it generally ignored massive human rights violations committed by its members and has been criticised for the excessive length of time that it has taken to bring the Banjul Charter into being in the first place (1981), and subsequently for it to come into force (1986). As a result, the African Commission on Human and Peoples’ Rights was initiated in 1987 - twenty-four years after the OAU was founded.

The AU’s record shows it to be more of a ‘talking shop’ where broad statements and good intentions are spoken of, but little is followed through, than a forum where the human rights of the citizens of member states are protected. This is arguably due to the lack of political will and determination that exists to ensure that legal redress is available to individuals and enforcement mechanisms for victims of police brutality are strong and difficult to circumvent. This has had a detrimental effect upon the realisation of the ideals that are behind the mechanisms of the AU and are described below.

The Banjul Charter

The African Charter on Human and Peoples Rights or the ‘Banjul Charter’, was adopted by African Union members in 1981 and came into force in 1986. Although the youngest, it is the most widely accepted regional charter in the world – with 53 ratifications/accessions to date. All Commonwealth African countries have signed up to the Charter.

This Charter grants similar protections for rights as in the International Bill of Rights. It is also unusual in that it covers economic, social and cultural rights as well as civil and political rights.

However, 19 years after the African Charter entered into force, these rights remain under severe attack. African governments generally have failed to address adequately the human rights problems confronting the continent.

The African Commission

The African Commission on Human and Peoples’ Rights was borne out of the Banjul Charter in 1987 to promote and protect these rights in Africa. The Commission entertains complaints by one State against another if both parties have ratified the charter. Individuals, NGOs and States Parties, may submit complaints of State human rights violations. A complaint may be considered from a person other than a State Party to the charter (including international complaints), but only at the request of the majority of its members. Moreover, the Commission only embarks upon a substantive consideration of the matter, after ensuring that various conditions of complaint admissibility, including the exhaustion of all local remedies, have been met. Importantly, cases can be initiated and concluded through correspondence alone instead of the traditional necessity for parties to be physically present, and submissions on behalf of others are also investigated. Where the Commission finds that violations have occurred, it makes recommendations to the State(s) concerned; to ensure that the occurrences are investigated, victim(s) compensated (if necessary) and measures taken to prevent recurrence.

Inadequate human and financial resources and significant arrears of payment have dogged the Commission for years. It has potential, but there are many hurdles that must be overcome before it is successful.

The African Court on Human and Peoples’ Rights

The Protocol authorizing the formation of an African Court on Human and Peoples’ Rights finally came into force in 2004, a disturbing 23 years after the Banjul Charter was adopted. Judges will be appointed and confirmed by the Assembly of African Heads of State and Government. The Court has been designed to complement the protective mandate of the African Commission on Human and Peoples’ Rights. It has both advisory and contentious jurisdiction over human rights matters. The jurisprudence will draw on the Banjul Charter and, notably, “any other relevant human rights instruments ratified by the States concerned.”

African States, the Commission, and African intergovernmental organisations will be able to submit cases to the Court. Individuals and NGOs may, at the discretion of the Court, file a petition against a State, if they have exhausted other avenues of relief; but the Court will only hear the case with the State’s consent. It has been suggested that one way around this impasse will be to sue State leaders in their private capacities. The Court can order remedies for human rights violations, including compensation or reparation. States are merely obliged to comply with judgements. Court expenses are to be borne by the AU Commission.

Concerns surrounding the Proposed Merger

With the start of this Court looming on the horizon, there is now uncertainty over its functioning, with a proposal to merge it with the existing African Court of Justice. While preparations were underway to make the Court operational, in July 2004 the AU Assembly decided to join the Court with the AU Court of Justice, and suspend the process until the modalities of the merger had been considered. The proposed merger has drawn deep concern from groups including The Coalition for an Effective African Court on Human and Peoples’ Rights (formed in May 2003) and Amnesty International.

While the Court of Justice established under the AU Constitutive Act has jurisdiction to resolve disputes between member States that have ratified the Court’s Protocol, the African Court is empowered to hear cases challenging violations of the civil and political rights as well as economic, social and cultural rights guaranteed under the African Charter. Furthermore, unlike the judges of the African Court who are required to possess competence in human rights, the judges of the Court of Justice are only required to “possess the necessary qualifications required in their respective countries for appointment to the highest judicial offices.” Amnesty International believes that human rights issues will become subsumed in a merger of the two Courts and there is a better chance of the implementation of the African Charter and more effective remedies for human rights violations with a separate Human Rights Court.

Importantly, proposals for the new Court leave unresolved such important issues as its functional link with the African Commission, and that individual and NGO access to the Court is dependent upon member States making a specific declaration permitting it. Of the 19 States that have ratified the protocol only one has made such a declaration.

It remains to be seen how effective the new proposed African Court will be, but if the length of time that the process of its initiation and the complexities involved in the merger of the two Courts are anything to go by, it will be some time before the new African Court is functioning effectively. Whether member States abide by and collectively enforce judgments of the Court, and whether the AU can itself develop effective mechanisms of enforcement against States, will be important tests. As in domestic reform, the political will and total long term commitment to accept and obey the rule of law will be critical to any effective and lasting justice in the African continent.