By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*

The African Court of Justice and Human Rights (as already renamed but still operating under the name African Court of Human and People’s Rights as it winds up) has the mandate to decide cases on the African Charter on Human and Peoples’ Rights (Banjul Charter) and its Protocol, and also any other relevant human rights instrument ratified by the Member State concerned. This unique mandate is not directly matched by either of the Court’s regional counterparts: The European Court of Human Rights or the Inter-American Court of Human Rights. The Inter-American Court of Human Rights and the Inter-American Commission on Human Rights are the two bodies established by the Organization of American States to monitor human rights in the Americas. The European Court of Human Rights is established under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Inter-American Court of Human Rights

Article 106 of the Charter of the Organization of American States (A41) establishes the Inter-American Commission on Human Rights, whose principal function is to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters. Specifically, in the exercise of its mandate, the Commission has the following functions and powers: to develop an awareness of human rights among the peoples of America; and to make recommendations to the governments of the member states, when it considers such action advisable, for the adoption of progressive measures in favor of human rights within the framework of their domestic law and constitutional provisions as well as appropriate measures to further the observance of those rights.

Further, the Commission has mandate to prepare such studies or reports as it considers advisable in the performance of its duties and to request the governments of the member states to supply it with information on the measures adopted by them in matters of human right. The Commission is also to respond, through the General Secretariat of the Organization of American States, to inquiries made by the member states on matters related to human rights and, within the limits of its possibilities, to provide those states with the advisory services they request. In addition, the Inter-American Commission on Human Rights is required to take action on petitions and other communications pursuant to its authority under the provisions of Articles 44 through 51 of this Convention; and to submit an annual report to the General Assembly of the Organization of American States.

On the other hand, the Inter-American Court of Human Rights is the judicial organ of the Inter-American human rights system. The American Court has a mandate that is more limited than that of the Commission because the Court may only decide cases brought against the Organization of American States (OAS) Member States that have specifically accepted the Court’s contentious jurisdiction. Unlike the African Court, for the American Court to hear any such case, the cases must first be processed by the Commission. Further, only States parties and the Commission may refer contentious cases to the Court closing out individual parties and Non-Governmental Organizations (NGOs) whose role in actualizing the jurisdiction the African Court has proven indispensable.

The European Court of Human Rights

The European Convention for the Protection of Human Rights and Fundamental Freedoms establishes the European Court of Human Rights to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. The jurisdiction of the Court extends to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47. In addition, the Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the protocols thereto. However, such opinions must not deal with any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention and the protocols thereto, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention.

The Convention provides that ‘any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party’. Of significant relevance is the provision that ‘the Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right’. While the Convention provides that the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken, the European Court practice departs from the African Court’s approach that requires that the concerned party state must have made a declaration to allow its individual citizens or NGOs to directly access the Court. The European Court goes further to make a provision to the effect that the High Contracting Parties must undertake not to hinder in any way the effective exercise of this right of individuals’ and NGOs’ direct access to the Court.

Way Forward on the Future of the African Court and Commission

As the African Court establishes its jurisprudence, it may require revisiting the emerging issues of the extent of its jurisdiction by consideration and a balancing of the scope of rights as intended by the drafters of the Charter with those protected by other human rights treaties. In addition, there is a need for the African Union Member States to revisit the Protocol and the Charter especially in the case of the requirement for countries to make declarations allowing individuals and NGOs to have direct access to the African Court as a way of showing their commitment to fight human rights violations in the Continent. They need to borrow a leaf from the European Union’s approach to the same. The current approach that allows states to opt in and out of making such declarations is arguably self-defeating in achieving the mandate of the African Charter and Protocol on protecting the human rights of Africans. The Court must be allowed to build its jurisprudence and legacy on comprehensive protection of human rights in the continent without fear of sabotage or reprisal from the member states.

The jurisdiction of the African Commission may also need to be reconsidered by either giving it prosecutorial powers over certain cases or by making it part of the African Court’s human rights division in order to ensure that all their decisions can be enforced against member states. While the Commission has played a significant role in exposing instances of human rights violations in many African States, reparation for such victims will remain a dream as long as direct access to the Court is hampered and the Commission’s role is reduced to that of making recommendations. If the African continent is to shed the longstanding tag of impunity and violation of human rights, then the above concerns must urgently be addressed.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., “African Court of Justice and Human Rights: Emerging Jurisprudence,” Available at: http://kmco.co.ke/wp-content/uploads/2020/06/African-Court-on-Human-and-Peoples-Rights-Emerging-Jurisprudence-Kariuki-Muigua-June-2020.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021. 

References

African Court on Human and Peoples’ Rights, “African Court on Human and Peoples’ Rights,” https://en.african-court.org/ (accessed 09 December 2021).

African Union, Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008.

African Union, ‘Protocol on the Statute of the African Court of Justice and Human Rights’ https://au.int/en/treaties/protocol-statute-african-court-justice-and-human-rights (accessed 09 December 2021).

Africa Union, ‘List of Countries Which Have Signed, Ratified/Acceded to the Protocol on the Statute of the African Court Of Justice And Human Rights’< https://au.int/sites/default/files/treaties/36396-slprotocol_on_the_statute_of_the_african_court_of_justice_and_human_rights.pdf> (accessed 09 December 2021).

African Union, African Charter on Human and Peoples’ Rights (Banjul Charter), adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986.

Ally Rajabu and Others v. United Republic of Tanzania, Available at: https://www.african-court.org/en/images/Cases/Judgment/Judgment_Summary_ Application_007-2015-Ally_Rajabu_and_ Others_v_Tanzania_Final.pdf (accessed 09 December 2021).

American Convention on Human Rights, Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969.

Chacha v Tanzania (admissibility) (2014) 1 AfCLR 398; See also Application Number 001/2012.

Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14, European Treaty Series-No. 5, Rome, 4.XI.1950.

De Silva, N., ‘Individual and NGO Access to the African Court on Human and Peoples’ Rights: The Latest Blow from Tanzania’ (EJIL: Talk!, 16 December 2019) https://www.ejiltalk.org/individual-and-ngo-access-to-the-african-court-on-human-and-peoples-rights-the-latest-blow-from-tanzania/ (accessed 09 December 2021).

Femi Falana v African Commission on Human and Peoples’ Rights (jurisdiction) (2015) 1 AfCLR 499.

Fleshman, M., “Human Rights Move up on Africa’s Agenda,” Africa Renewal, Available at: https://www.un.org/africarenewal/magazine/july-2004/human-rights-move-africas-agenda (accessed 09 December 2021).

Fombad, C.M. and Nwauche, E., “Africa’s Imperial Presidents: Immunity, Impunity and Accountability,” African Journal of Legal Studies Volume 5 Issue 2 (2012), https://brill.com/view/journals/ajls/5/2/article-p91_1.xml?language=en (accessed 09 December 2021).

Frank David Omary and Others v United Republic of Tanzania and Application Number 003/2012.

International Commission of Jurists (ICJ), “The Subject Matter Jurisdiction of the African Court of Human and Peoples’ Rights” 24 June 2020; Available at: https://www.icj.org/wp-content/uploads/2015/04/ MENA-Arab-Court-Memo-Monageng-Advocacy-2015-ENG.pdf (accessed 09 December 2021).

International Court of Justice, ‘Declarations Recognizing the Jurisdiction of the Court as Compulsory,” Available at: https://www.icj-cij.org/en/declarations (accessed 09 December 2021).

International Federation of Human Rights, “Rwanda’s Withdrawal of Its Special Declaration to the African Court: Setback for the Protection of Human Rights,” https://www.fidh.org/en/region/Africa/rwanda/ joint-civil-society-statement-on-rwanda-s-withdrawal-of-its-article (accessed 09 December 2021).

International Justice Resource Center, “Rwanda Withdraws Access to African Court for Individuals and NGOs,” https://ijrcenter.org/2016/03/14/rwanda-withdraws-access-to-african-court-for-individuals-and-ngos/ (accessed 09 December 2021).

Joseph, R., ‘The Democratic Challenge in Africa’ (Working Papers from Seminar on Democratization Atlanta, GA: Carter Center … 1994) < https://www.cartercenter.org/documents/1220.pdf> (accessed 09 December 2021).

Juma, D. “Access to the African Court on Human and Peoples’ Rights: A Case of the Poacher Turned Gamekeeper?.” Available at SSRN 1391482 (2007).

Michelot Yogogombaye v The Republic of Senegal, Application No 001/2008, Available: http://www.worldcourts.com/acthpr/eng/decisions/2009.12.15_Yogogombaye_v_Senegal.htm (accessed 09 December 2021).

Ogbeidi, M. “Political leadership and corruption in Nigeria since 1960: A socioeconomic analysis.” Journal of Nigeria studies 1, no. 2 (2012), Available at: < http://www.unh.edu/nigerianstudies/articles/ Issue2/Political_leadership.pdf> (accessed 09 December 2021).

Organization of African Unity (OAU), Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights, 10 June 1998.

Peter Joseph Chacha v United Republic of Tanzania; Thomas v Tanzania (merits) (2015) 1 AfCLR 465.

Ssenyonjo, M., ‘Responding to Human Rights Violations in Africa in: International Human Rights Law Review Volume 7 Issue 1 (2018)’ https://brill.com/view/journals/hrlr/7/1/article-p1_1.xml?language=en (accessed 09 December 2021).

Umuhoza v Rwanda (003/2014) [2018] AfCHPR 21; (24 November 2017).

Wachira, G.M., “African Court on Human and Peoples’ Rights: Ten years on and still no justice,” London: Minority Rights Group International, 2008, Available: https://minorityrights.org/wp-content/uploads/old-site-downloads/download-540-African-Court-on-Human-and-Peoples-Rights-Ten-years-on-and-still-no-justice.pdf (accessed 09 December 2021).

Viljoen, F., “Understanding and overcoming challenges in accessing the African Court on Human and Peoples’ Rights.” (2018), p. 2. Available at: https://repository.up.ac.za/bitstream/handle/2263/ 65342/ Viljoen_Understanding_2018.pdf?sequence=1&isAllowed (accessed 09 December 2021).

Yakaré-Oulé, N., Reventlow, J. & Rosa Curling, ‘The Unique Jurisdiction of the African Court on Human and People’s Rights: Protection of Human Rights Beyond the African Charter | Emory University School of Law | Atlanta, GA’ (Emory University School of Law) accessed 24 June 2020.

Zouapet, KA.,‘“Victim of Its Commitment … You, Passerby, a Tear to the Proclaimed Virtue”: Should the Epitaph of the African Court on Human and Peoples’ Rights Be Prepared? – EJIL: Talk!’ https://www.ejiltalk.org/victim-of-its-commitment-you-passerby-a-tear-to-the-proclaimed-virtue-should-the-epitaph-of-the-african-court-on-human-and-peoples-rights-be-prepared/ (accessed 09 December 2021).

Zimmermann, A., “Current Challenges Facing the African Court on Human and Peoples’ Rights,” Konrad Adenauer Stiftung., 2010 < https://www.kas.de/c/document_library/get_file?uuid=1933766c-dbe1-d244-ef61- 47dcb64ce9bb&groupId=252038> (accessed 09 December 2021).