The creation of the African Court on Human and Peoples’ Rights was an important step in complementing the role of the African Commission with an enforceable mechanism that the African system for Human Rights protection had thus far been lacking. The Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights 1 was adopted on 10 June 1998. It entered into force on 25 January 2004. The Court is located in Arusha, Tanzania, and rendered its first judgement on admissibility, on 15 December 2009. Its first judgement on the merits was issued on 14 June 2013. 2
As at May 2021, 30 States have ratified the Protocol, and only 6 States have made a declaration accepting the Court’s competence to receive applications from individuals or NGOs. 3 In a worrying development for the future of the Court, 4 States that had initially recognized the Court’s competence to receive complaints from individuals and NGOs have since withdrawn their respective declarations and they are: Côte d’Ivoire in April 2020, Benin in March 2020, Tanzania in November 2019 and Rwanda in 2016.
The African Court on Human and Peoples’ Rights in Action
Abdoulaye Nikiema, ernest Zongo, Blaise Ilboudo & Burkinabe human and Peoples’ Rights movement v.The Republic of Burkina faso, Application no. 013/2011.
On 28 March 2014, the Court found that Burkina Faso had not taken appropriate measures to investigate the murder of journalist, Norbert Zongo, thereby failing to meet its obligation to protect journalists. 4 The body of journalist Norbert Zongo had been one of four bodies found in a burned-out car in Sapouy, about 100 kilometres from Ougadougou in Burkina Faso on 13 December 1998. The Court concluded that Burkina Faso had failed in its obligation to take measures, other than legislative, to ensure that the Applicants’ rights for their cause to be heard by competent national Courts are respected:
“The Respondent State therefore violated Article 7 as well as Article 9 (2) of the Charter, read jointly with Article 66 (2) c) of the revised ECOWAS Treaty, because it failed to act with due diligence in seeking, trying and judging the assassins of Norbert Zongo and his companions. Hence, Burkina Faso simultaneously violated Article 1 of the Charter by failing to take appropriate legal measures to guarantee the respect of the rights of the Applicants pursuant to Article 7 of the Charter.” 5
This judgement is significant because it emphasises the state duty to protect individuals from violations by third parties. One of the complainant organisations was MBDHP, a FIDH member organisation.
Legal Aid Scheme
The Court adopted a Legal Aid Policy 6 and set up a Legal Aid Fund. The Legal Aid Policy notably specifies criteria for determining eligibility for qualification for legal aid as well as the categories of expenses that will be supported. an application form is available on the Court’s website. 7 Tanzania is the first AU Member State to contribute towards the Scheme, with a 100 000$ pledge in September 2015.
What rights are protected?
Article 3 of the Protocol provides that “the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the charter, this protocol and any other relevant Human Rights instrument ratified by the States concerned. In the event of a dispute as to whether the court has jurisdiction, the court shall decide.” 8
In other words, the rights protected under the Charter, as well any other relevant Human Rights instrument that the state concerned has ratified are protected by the Court’s jurisdiction. Compared with other regional Human Rights institutions the potential rights protected are numerous. Moreover, the Court has made it clear that the rights enshrined in the Charter should not be interpreted narrowly.
Against whom may a complaint be lodged?
A petition must be addressed to a state party to the Protocol. The most obvious state to address in a case of corporate Human Rights abuse would be the state on whose territory the violations occur. It may also be possible that the State owner of a company, or the State where a company is head quartered (the “home state”) can have a complaint lodged against them. For the moment, no such cases have been brought. (See the discussion on extra-territoriality above)
Who can file a complaint?
In accordance with Article 5 of the Protocol, the Court is competent to receive applications from:
- the African Commission;
- a State Party who has lodged/ an application with the Commission;
- a State Party against whom an application has been lodged with the Commission
- a State Party whose citizen is a victim of Human Rights violations.
However, one of the unique aspects of the African Court compared to other regional courts is that African intergovernmental organisations can also lodge applications with the Court under Article 5. Moreover, any individual or NGO with observer status before the Commission can likewise lodge an application, though the Court may only receive petitions directly from individuals or NGOs when the State Party concerned has made a prior declaration granting such a right. 9
The Court may under its Protocol permit a State Party to join a proceeding if it has an interest in the case.
Under what conditions can a complaint be lodged?
- The petition must deal with facts that are specified under the jurisdiction of the Protocol as provided by Article 3 (see above).
- If the complainant is a State Party, the Commission or an NGO in a country that has made the 34(6) declaration, and has observer status before the Commission, then all other specific conditions of admissibility of an individual or an NGO are identical before the Commission and the Court (see section above and see Article 40 of the Interim Rules of the Court).
This declaration requirement is one of the main limits of the African system of protection of Human Rights. As already mentioned, currently only 6 States have made the declaration while 4 that had previously done so have since withdrawn their declarations as part of a worrying backlash against the Court for the decisions it has issued against States. 10 Without the declaration by States, the impact of the Court in protecting human and peoples’ rights stands to be severely diminished as the majority of the cases it has handled come from individuals and NGOs. Indeed from when the Court began its operations to May 2021, the Court had considered a total 318 applications; of which 294 were from individuals, 21 from NGOs and only 3 from the African Commission. 11
Another limitation for NGOs in relation to the Court lies in the ability to seek an advisory opinion. The Protocol establishing the Court indicates in its article 4 that an advisory opinion may be sought from the Court by AU member States, AU organs and any African organization recognized by the AU. In Advisory Opinion 2/2015: The Centre for Human Rights of the University of Pretoria and the Coalition of African Lesbians, the Court re-affirmed that, “observer status before any African Union organ does not amount to recognition by the African Union”. This is particularly challenging because a majority of NGOs seeking to engage the Court only possess observer status with the African Commission as an AU organ as opposed to direct observer status or a Memorandum of Understanding (MoU) with the AU through the African Union Commission (AUC). In fact, the process of obtaining observer status with the AUC has been described as highly complex with NGOs being discouraged to pursue it and in the alternative, the number of NGOs that have successfully entered into MoUs with the AUC is extremely low. 12 Consequently, the window to seek an advisory opinion from the Court is severely limited.
An alternative strategy, which may be considered in case the state has not given individuals the possibility to petition the Court, is to submit a communication to the Commission, who has the capacity to refer to the Court for serious or massive Human Rights abuses. However, only 3 such referrals have taken place thus far. 13
Process and outcome
The procedure before the Court shall consist of written, and if necessary, oral proceedings. The Court may decide to hold a hearing with representatives of parties, witnesses, experts or such other persons. 14
In order to petition the Court, the application of an individual, or an NGO with observer status before the African Commission, must contain elements required in accordance with Articles 5.3 and 34.6 of the Protocol.
The Court makes different types of decisions:
- Advisory opinion (art. 4 of the Protocol);
- Litigation decisions;
- Attempt to settle a dispute amicably (art. 9 of the Protocol);
- Judgement 15 (art. 3, 5, 6, and 7 of the Protocol)
In case of extreme gravity and urgency, and to prevent harm to persons in danger, the Court may take provisional measures (art. 27.2 of the Protocol) during its inquiry or render a judgement (art. 28.2 of the Protocol) when the inquiry is finished. Those judgements are binding on the states and must be taken into account by national courts as being a reference for jurisprudence.
The Ogiek case (Kenya)
The Ogiek case was referred to the African Court by the African Commission on the grounds that it evinced serious and mass Human Rights violations. In a historic ruling in March 2013, the African Court on Human and Peoples’ Rights issued a provisional measures order in favour of the Ogiek community – the first time that the Court has issued such an order in favour of an indigenous people. The Court ordered the government of Kenya to stop parcelling out land in a disputed forest area until the Court reaches a decision in the matter and to refrain “from any act or thing that would or might irreparably prejudice the main application, until the Court gives its final decision in the case”. 16
The Court’s judgement:
- Must be rendered in the 90 days after its deliberations and pronounced in front of a public audience (art. 28.1 and 28.5 of the Protocol);
- Must be well reasoned and definitive (art. 28.6 and 28.2 of the Protocol);
- May be reviewed and interpreted (art. 28.3 and 28.4 of the Protocol);
- May allocate compensation (art. 27.1 of the Protocol).
The judgements issued by the Court are binding, contrary to the communications of the Commission.
State Parties commit themselves to the implementation of judgements rendered within the delays fixed by the Court (art. 30 of the Protocol). In practice, the implementation of its decisions depends very often on the will of the States. Nevertheless, the fact that the Court makes its decisions public, and sends them to Member States of the AU and the executive Council, means that it plays an important role in putting pressure on condemned States.
Moreover, the executive Council of the African Union monitors the implementation of judgements (art. 29.2 of the Protocol). It can pass directives or rulings that have binding force on reluctant States. However, this process also depends on the political will of the executive Council to exercise a thorough monitoring of the decisions of the Court. The Court addresses the Conference of the Heads of State and Government in an annual report, which must include coverage of the non-implementation of its decisions (art. 31 of the Protocol).
The African system for the protection of Human Rights remains largely underresourced. However, there are different ways for victims and NGOs to access the system, through the Commission, or its Rapporteurs, and the Court. Keeping in mind the very young history of the Court, and considering that only six States have currently granted individuals access to it, the Commission still remains the main channel for NGOs and individuals to access the African system. Opportunities to further analyse the responsibilities of States and businesses for the impact of corporate activities on Human Rights should be explored.