Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Oliver Windridge Independent news, comment and debate on the African Court on Human and Peoples’ Rights www.acthprmonitor.org @acthpr_monitor

Protection: The African Charter Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Protection: The African Charter Venue: African Commission & African Court Accessing the African Court: (i) Protocol (iii) Additional Declaration (iii) Another Way? (iv) Other Ways to Expand Jurisdiction Conclusion www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights The African Charter on Human and Peoples’ Rights At present all 54 AU member states have ratified the African Charter on Human and Peoples’ Rights. This means these member states are under an obligation to ensure their citizens, including “peoples” rights under the Charter are upheld. www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Right to Freedom from Discrimination (Article 2) Right to Life (Article 4) Prohibition of Torture and Cruel, Inhuman and Degrading Treatment (Article 5) Right to Fair Trial (Article 7) Freedom of Expression (Article 9) The African Charter contains many of the rights similar to those found in other regional human rights instruments www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights the right of all Peoples to Equality (Article 19) Right to Self-Determination (Article 20) Right to Free Disposal of Wealth and Natural Resources (Article 21) Right to Economic, Social and Cultural Development (Article 22), Right to a General Satisfactory Environment (Article 24) The African Charter also contains “peoples” rights, these include… www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Ratification of the African Charter www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Venues for alleging violations of the African Charter If there is a violation of the African Charter, where can individuals, or peoples’ go? Two options available at the continental level- the African Commission and African Court on Human and Peoples’ Rights African Commission on Human and Peoples’ Rights African Court on Human and Peoples’ Rights www.acthprmonitor.org

Power to make provisional measures Can only make recommendations Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights African Commission Jurisdiction over all AU members states who have ratified African Charter Power to make provisional measures Can only make recommendations The Commission has jurisdiction over every AU member state since the creation of the Commission is baked into the African Charter itself www.acthprmonitor.org

African Court Created after African Commission Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights African Court Created after African Commission Can also issue provisional measures Power to award reparations Judgments on merits can include orders for compliance www.acthprmonitor.org

Court composed of 11 judges Court sits in Arusha, Tanzania Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights African Court Court composed of 11 judges Court sits in Arusha, Tanzania Currently, applicants enjoyed a 100% success rate in cases decided on the merits www.acthprmonitor.org

How do we access the African Court? Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights How do we access the African Court? How do we get in the door? www.acthprmonitor.org

African Charter on Human Rights Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Accessing the African Court African Charter on Human Rights Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Protocol) www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights The Protocol www.acthprmonitor.org

African Intergovernmental Organizations Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Ratification of Protocol allows the African Court to consider cases from The Commission Member states African Intergovernmental Organizations www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Ratification of the Protocol Currently 30 member states have signed the PROTOCOL www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Signing the Protocol does not allow individuals and NGOs direct access to the African Court www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights African Charter on Human Rights Access for individuals and NGOs Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Protocol) Additional Declaration pursuant to Article 34(6) of the Protocol www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Additional Declaratio n under Article 34(6) of the Protocol www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Article 34(6) states: “At the time of ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court […]The Court shall not receive any petition under Article 5(3) involving a State Party which has not made such a declartion” www.acthprmonitor.org

Access for Individuals and NGOs Requires… Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Access for Individuals and NGOs Requires… www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Signature of the Additional Declaration www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Additional Declaration African Charter Protocol www.acthprmonitor.org

Femi Falana v African Union (2012) Atemnkeng v African Union (2013) Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Challenges Femi Falana v African Union (2012) Atemnkeng v African Union (2013) Democratic Party v. EAC, Uganda, Kenya, Rwanda and Burundi (East African Court of Justice) www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Another Way? With the number of member states signing the Additional Declaration so low, and the African Court having seemingly stopped the challenges to it, one option is for www.acthprmonitor.org

Signing the Protocol allows the Court to consider cases from Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Another Way? Signing the Protocol allows the Court to consider cases from African Commission Other member states Intergovernmental Organizations This is interesting. Whilst member states, or other member states may be unwilling to report on themselves, the African Commission does have powers to send over cases. www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Another Way? www.acthprmonitor.org

“serious or massive violations of human rights” Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Another Way? “serious or massive violations of human rights” Commission v Libya Commission v Kenya www.acthprmonitor.org

Other Ways of Expanding Jurisdiction Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Other Ways of Expanding Jurisdiction National Human Rights Institutions African Court engagement Lawyers and academics www.acthprmonitor.org

Necessary Check Points or Immovable Roadblocks Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Conclusion The African Charter is an extensive human rights instrument with continent-wide acceptance The African Court works alongside the African Commission Access begins with the African Court Protocol, but ratification only gives the African Court jurisdiction over member states, Intergovernmental Organizations and the African Commission For Individuals and NGOs to access the African Court, an additional declaration must be signed Currently only 7 AU member states (out of 55) allow individuals and NGOs direct access to the African Court A Third Way emerging? Engagement from NHRIs, African Court and others www.acthprmonitor.org

www.acthprmonitor.org @acthpr_monitor Necessary Check Points or Immovable Roadblocks? Accessing the African Court on Human and Peoples’ Rights Join the journey… Independent news, comment and debate on the African Court on Human and Peoples’ Rights www.acthprmonitor.org @acthpr_monitor www.acthprmonitor.org