The African Court of Justice and Human Rights: Future Political and Jurisdictional Realities and Challenges
Author: Thompson Bobby Ugiagbe
Originally Published at Peace and Conflict Monitor on: 05/03/2010
The African Court of Justice and the African Court on Human and Peoples’ Rights were merged by virtue of the Protocol on the Statute of the African Court of Justice and Human Rights in mid-2008 to form a single court, the African Court of Justice and Human Rights (ACJHR). (A good account of the history and background to the merger has been given by Sceats). The Court will have two sections; a General Section and a Human Rights (HR) Section; however, discussion in this paper will be centered on the HR Section.
The timing (coming relatively late), political context and jurisdictional and procedural provisions offer some prospects and challenges. This paper analyses how these factors will possibly play out when the court becomes functional.
POSSIBLE POLITICAL CHALLENGES
Beyond the backdrop of age long flagrant HR abuses, the political context the court will operate in must be viewed amidst an atmosphere of recognition and growing respect for HR. Furthermore, the increased activism of African NGOs and other civil society groups in HR protection, as well as the success of other regional HR courts, could combine to provide impetus for effective HR protection. However, the realpolitik within the African Union (AU) and ability of the court to quickly stamp its authority will also be important.
It is trite knowledge that Algeria, Egypt, Libya, Nigeria and South Africa are the major member states and bear the brunt of the organization’s expenses. The political context is important especially as four out of the five major member states, (namely Algeria, Egypt, Libya and Nigeria) are amongst the top 100 countries with the worst HR abuses, with Algeria, Egypt and Libya in the top 10 bracket. In this regard, compliance with the court’s decisions, especially when against any of the major state parties, will be instructive. There is no gain in saying that if the court is too assertive, it runs the risk of its decisions being flaunted. How the court should navigate these uncertain waters will be addressed subsequently.
POSSIBLE JURISDICTIONAL AND PROCEDURAL CHALLENGES
In terms of jurisdiction, the areas of interest are ratione materiae (subject matter), ratione personae (personal jurisdiction) and ratione temporis (time or temporal) provisions. Unlike its European and Inter-American congeners, the Protocol provides that in addition to the African Charter, “actions may be brought before the ACJHR on the basis of any instrument, including international human rights treaties, which have been ratified by the State party in question”. Thus, the ACJHR “could become the judicial arm of panoply of human rights agreements concluded under the aegis of the United Nations (e.g. ICCPR, CEDAW or CRC), other relevant legal HR instruments and even environmental treaties.” Inadvertently, this very broad subject matter jurisdiction serves the purpose of increasing accessibility to the Court. However, the provisions of Part 1, Chapter Two (especially Art 27) of the African Charter, which has been interpreted as some sort of general limitation to the enjoyment of rights, coupled with the reality of ratione personae provisions might actually limit this broad and expansive accessibility.
Another peculiarity of the ACJHR is in terms of ratione personae. There are two categories of jurisdiction in this regard – compulsory and optional. Compulsory jurisdiction deals with the power granted states, AU organs and other inter-governmental bodies to submit cases while optional jurisdiction concerns cases submitted by individuals and NGOs. Locus standi for individuals and NGOs is somewhere between the provisions of the IACHR and the ECHR. Individuals and NGOs can bring contentious cases before the ACJHR if the states involved have made a declaration to that effect. This is better than what is stipulated in the IACHR, where individuals and NGOs have no locus standi, except appearance during proceedings; however, it is still below the standard set by the new ECHR.
Such recognition of NGOs could strengthen ACJHR’s promotional function. NGOs’ recognition by the ACJHR Statute will ostensibly increase accessibility to the Court. The Association for Prevention of Torture (APT) has however, argued that it is unlikely that “states will rush to be the first to declare their recognition of the Court’s competence to examine individual petitions” and as such its jurisdiction would basically be reduced to inter-state communications. Meanwhile, state practice with regards HR does not suggest that African states will drag themselves before courts, especially for violations outside their borders. It was thus opined that accessibility would have been better if “it were incumbent upon the state which does not recognize this competence of the Court to make a declaration to that effect.” Hence, despite the possibility for individual and NGOs’ petitions, the ratione personae provisions are actually effective filters for now.
The aforementioned challenges are compounded by lack of explicit ratione temporis provisions in the Admissibility provisions of the Court’s Rules of Procedures or the African Charter on Human and Peoples Rights. Nevertheless, Articles 48, 50, 56 (5), (6), 63 and 65 of the Charter contain ratione temporis references of some sort. Rule 40 (which is synonymous with Articles 56 (5) and (6) of the African Charter on Human and Peoples’ Rights) for example, stipulates that:
Pursuant to the provisions of article 56 of the Charter to which article 6(2) of the Protocol refers, applications to the Court shall comply with the following conditions:
(1) Disclose the identity of the Applicant notwithstanding the latter’s request for anonymity […]
(5) Be filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;
(6) Be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter; […]
Exactly what is meant by “unduly prolonged” or “reasonable time” remains unclear. The implication of such ambiguity is that the basis of the court´s ratione temporis is indeterminate for now until the Court perhaps addresses the issue in a case. There is also the issue of time statute bar or limitation, which is not explicit as the case with ICC and suggests that cases prior to entry into force of the Protocol establishing the Court, might be admissible. On the other hand, stakeholders like International Federation for Human Rights (FIDH) have argued that the date of entry into force of the Protocol is a time limitation by default. NGOs and victims will prefer the initial suggestion, as it will ensure increased accessibility; however it might lead to an unmanageable number of petitions in view of the continent’s HR situation, while the latter position will help filter or streamline the number.
POSSIBLE ANTIDOTES TO CHALLENGES
Perhaps the greatest (political) challenge the Court will face will be compliance of the state parties, especially the big member states, with its decisions. Unlike the ECHR, which essentially grew alongside the political organs and the IACtHR which though an afterthought, was quite early, the ACJHR is a latecomer to a scene with highly developed political organs. This peculiarity means that its formal authority, as enshrined in the Court’s Statute, might not suffice in getting states to respect and obey its decisions, especially if such decisions are principled and against the states’ interests. On the other hand, if it is too pragmatic in its decisions, it will easily lose legitimacy, especially in the eyes of NGOs, victims, other regional courts and the international community.
Indeed, a measure of its success would be the degree of reference by its congeners and other courts in their cases. In this regard, the Court would need to carefully balance the requirements of principle and pragmatism with a leaning towards principle. Specifically, while the Court should strive to base decisions on principle; it would do well to be pragmatic about awards and reparations in order to ensure compliance. With such an approach, States would likely comply with the Court principled decisions, especially if such do not translate to financial and other costs, while also enhancing the Court´s authority and legitimacy.
The challenge of a large number of cases that might swamp the Court can be addressed by a concerted effort of capacity building for the Court staff (not just the judges) and a vibrant Commission on HR. The success of its congeners is as much the result of effort and dedication of the entire staff as it is of the judges as well as the Human Rights Commissions. In the case of the IACtHR ,where the judges work part-time, the work of the staff (also called the ‘invisible court’) takes a higher value. The ACJHR can learn from this and ensure that its staff is well-trained and ready to hit-the-ground-running whenever the Court becomes functional. Hence, the Court should arrange internship programs with the ECHR and IACtHR, not just for the judges, but also the staff which should be recruited now as well, so that they are all equipped whenever the Court becomes functional.
Equally, an effective African Commission would not only enhance the Court’s work, but also help address the problem of NGOs and individual accessibility to the Court. Experience from the IACtHR suggests that the ‘filter’ or barrier to individual and NGO accessibility can be overcome through a vibrant Commission on HR. It is therefore imperative to improve the decision-making process of the African Commission, as well as the processes of adopting and enforcing its decisions. While the use of sanctions to ensure compliance is advocated, it is more desirable for states to voluntarily respect their human rights obligations, and the decisions of the Commission and the Court.
The ACJHR has the potential to develop into an important instrument for human rights protection on the continent. Such evolution, however, demands independence and pragmatism on the part of the judges, so as to ensure compliance by states and legitimacy of the court. The success of the ACJHR would also be dependent on well-trained staff and the effectiveness of the African Commission on HR and the various National HR Commissions.
 See the Protocol on the Statute of the African Court of Justice and Human Rights, available at http://www.africa-union.org/root/au/Documents/Treaties/text/Protocol%20on%20the%20Merged%20Court%20-%20EN.pdf (last visited 18 April 2010).
 Sonya Sceats, Africa’s New Human Rights Court: Whistling in the Wind, a Chatham House Briefing Paper, International Law, IL BP 09/01, March 2009, available from www.chathamhouse.org.uk (last visited 18 April 2010).
 Ibid, Page 1.
 Unlike the Organization for African Unity (OAU) Charter, the charter of the successor organization, the African Union (AU), specifically recognized the ‘promotion and protection of HR’ as one of the cardinal objectives. See for example, the Charters of AU and OAU, available at http://www.au2002.gov.za/docs/key_oau/au_act.htm and http://www1.umn.edu/humanrts/africa/OAU_Charter_1993.html respectively (last visited on 18 April 2010).
 Interview with Emmanuel Akeh of AU Secretariat on 20 March 2010 in Ciudad Colon, Costa Rica.
 The Observer HR Index, see http://www.guardian.co.uk/Tables/4_col_tables/0,,258320,00.html (last visited 18 April 2010). Also, Algeria, Egypt and Libya are also in Amnesty International top twenty HR worst offenders list, see http://www.amnesty.org/ailib/index.html (last visited 18 April 2010).
 See Art 31 of the Statute of the African Court of Justice and Human Rights, available at http://www.chr.up.ac.za/hr_docs/documents/Single_Legal_Instument.pdf (last visited 25 April 2010).
 African Court Of Human And Peoples’ Rights, a Project on International Courts and Tribunal (PICT) Publication, available at http://www.pict-pcti.org/courts/ACHPR.html (last visited 24 April 2010).
 Christof Heyns, The African Regional Human Rights System: The African Charter, in Henkin, Cleveland, Helfer, Neuman and Orentlicher, “Human Rights” 2nd ed, Foundation Press, USA, 2009, Page 679. See also generally, Makau wa Mutua, The Banjul Charter and the African Cultural Fingerprint: an Evaluation of the Language of Duties, 35 Va, J. Int’l L. (1995) 339 -80. Art 27 refers to “duties” of the individual in respect of the right of others, collective security, morality and common interest. It remains to be seen how the Court will interpret this very broad limitation on individual rights.
 The African Court on Human and People’s Rights, Association for the Prevention of Torture (APT) Occasional Paper, Geneva, January 2000, available at http://www.uneca.org/itca/governance/Documents/African%20Court.pdf (last visited 24 April 2010).
 The Statute of ACJHR at note 6, Arts 29 and 30 (a) – (e)
 Ibid, Art 30 (f).
 Supra, note 10. The APT made a good distinction of the place of NGOs in the three regional courts as follows:
“The role of NGOs and their ways of intervening differs between the three regional courts. First, is the right to petition the court:
a. In the European system an NGO can only petition the court if it is victim of a violation.
b. In the African system the right to petition the Court is more limited as for individuals and
NGOs it is optional. It is also broader in the way in which there is no condition of interest to act.
c. In the Inter-American system the Court can only be petitioned by the Commission and States, but NGOs can petition the Commission.
Despite this, NGOs work closely with the Inter-American Commission which has allowed them to represent victims before the Court. In the European system NGOs can intervene as “friends of the court” and under the quite limited conditions to defend their interests. NGOs can also give assistance to victims without being either party or intervening. This help can be in the form of legal council, expertise on the situation of human rights or more generally to give financial, material or psychological support. NGOs have acquired an important place in the work of the African Commission. It is hoped that this co-operation will continue with the African Court, even if the right to directly petition the Court remains limited for now.”
Supra, note 8.
 Supra, note10.
 See generally the African Charter on Human and Peoples’ Rights, available at http://www.achpr.org/english/_info/charter_en.html(last visited 24 April 2010). See also Rule 40 of the Interim Rules of Court, available at http://www.chr.up.ac.za/hr_docs/documents/courtrules.pdf (last visited 25 April 2010).
 The African Commission on HR the Court could have looked to for guidance in this regard has not defined “undue prolongation”, however, it has ruled in its Communication 135/94, Kenya Human Rights Commission v. Kenya Case, that one year and 10 months was not an undue prolongation.
 See for instance, Art 11 of the Rome Statute, available at http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf (last visited 25 April 2010).
 10 Keys to understand and use the African Court on Human and Peoples’ Rights, a FIDH 2004 publication, available at http://www.fidh.org/IMG/pdf/COUR_AF_ANGLcadre.pdf (last visited 25 April 2010).
 Article 46 of the Statute of the ACJHR provides that:
(1) The decision of the Court shall be binding on the parties.
(2) Subject to the provisions of paragraph 3, Article 41 of the present Statute, the judgment of the Court is final.
(3) The parties shall comply with the judgment made by the Court in any dispute to which they are parties within the time stipulated by the Court and shall guarantee its execution.
(4) Where a party has failed to comply with a judgment, the Court shall refer the matter to the Assembly, which shall decide upon measures to be taken to give effect to that judgment.
(5) The Assembly may impose sanctions by virtue of paragraph 2 of Article 23 of the Constitutive Act.
 The experience of the East African Community Court of Justice in respect of its rulings in the P. Anyang Nyong’o et al v. Attorney General of the Republic of Kenya et al Case is very instructive; wherein the political organs’ swift reaction to the judgment by amending the Constitutive Document to make it easier to sack or recall judges was simply a message to the judges to “behave or else.” See generally Anne Pieter van der Mei, The East African Community: The Bumpy Road to Supranationalism, a University of Maastrict Faculty of Law Working Paper, available at http://ssrn.com/abstract=1392709 (last visited 25 April 2010).
 Indeed it could borrow a leaf from the some of the National Human Rights Commissions which is quite principled in their determination of HR violations but very pragmatic in awards, preferring “just satisfaction” and amicable settlements, which has greatly enhanced cessation of violations and compliance with HR standards.
 For now, only the judges have been selected.
 The role of the various national HR Commissions in the African Commission’s success needs no emphasis.
Bio: Thompson Bobby Ugiagbe is currently a Master’s student in the International Law and Settlement of Disputes Program at the UN-mandated University for Peace. He has been involved in Security and Information Management at the national level in Nigeria and his research interest is Security, Law and Development.