Bringing cases to the African Court on Human and Peoples’ Rights Jamil D. Mujuzi, Doctoral Researcher, Community Law Centre, University of the Western Cape, 26 May 2009,

History of the ACtHPR The African Court on Human and Peoples’ Rights has had a long history dating back to However, a discussion of its history falls outside the scope of this presentation. For its history, see Frans Viljoen, International Human Rights Law in Africa (2007, Oxford University Press), 420 – 423.

Relevant instruments African Charter on Human and Peoples’ Rights ( adopted 1981 & eif 1986) – SA ratified on 9 July 1996 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (adopted 1998 & eif 2004) – SA ratified on 3 July 2002 Constitutive Act of the African Union (adopted 2000 & eif 2001) – SA ratified 3 March Protocol of the Court of Justice of the African Union (adopted 2003 & eif February 2009) – SA ratified 17 December 2004 Decision on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union (adopted by the Assembly of the AU, July 2005) Protocol to the Statute of the African Court of Justice and Human Rights – as at 15 May 2009 signed by 15 countries excluding South Africa. No ratification.

Relevant instruments Interim Rules of Procedure of the African Court on Human and Peoples’ Rights (entered into force 20 June 2008) Draft Interim Rules of Procedure of the African Commission on Human and Peoples’ Rights (the Commission still welcoming comments until 30 May 2009, as of last week, only 4 states parties and 5 NGOs (coalitions) had submitted their recommendations)

Merger of the ACtHPR and the Court of Justice of the AU The merge will result into the establishment of the African Court of Justice and Human Rights. Its establishment ‘shall assist in the achievement of the goals pursued by the AU and that the attainment of the objectives of the African Charter requires the establishment of a judicial organ to supplement and strengthen the mission of the ACHPR as well as the African Committee of Experts on the Rights and Welfare of the Child.’ Preamble

Merger of the ACtHR and the Court of Justice of the AU The two courts will be merged into a single court called ‘The African Court of Justice and Human Rights’ (ACJHR) (Article 2 of the Merger Protocol) which ‘shall be the judicial organ of the AU (Article 2 of the Statute of the ACtJHR). The ACtJHR shall have two sections (1) the General Affairs Section composed of 8 judges and (2) the Human Rights Section composed of 8 judges (Article 16 of the Statute)

ACtJHR Under Article 17(1) of the Statute, the General Affairs Section shall be competent to hear all cases submitted under Article 28 of the Statute save those concerning human and/or peoples’ rights issues e.g. the interpretation and application of the Constitutive Act of the AU; the Interpretation and application of the African Charter, Children’s Charter and Women Protocol etc; any question of international law etc

ACtJHR Under Article 17(2) of the Statute, the Human Rights Section shall be competent to hear all cases relating to human and/or peoples rights

Submitting cases to the ACtJHR Under Article 29 of the Statute, (1) the following entities shall be entitled to submit cases to the Court on any issue or dispute provided for in Article 28: (a) State Parties to the present Protocol; (b) The Assembly, the Parliament and other organs of the AU authorized by the Assembly; (c) A staff member of the AU on appeal, in a dispute and within the limits and under the terms and conditions laid down in the Staff Rules and Regulations of the Union; (2). The Court shall not be open to States, which are not members of the Union. The Court shall also have no jurisdiction to deal with a dispute involving a Member State that has not ratified the Protocol.

Submitting cases to the ACtJHR Under Article 30 of the Statute, The following entities shall also be entitled to submit cases to the Court on any violation of a right guaranteed by the African Charter, the Children’s Charter, the Women Protocol or any other legal instrument relevant to human rights ratified by the States Parties concerned: (a) State Parties to the present Protocol; (b) the African Commission;(c) the African Committee of Experts on the Rights and Welfare of the Child; (d) African Intergovernmental Organizations accredited to the Union or its organs;(e) African National Human Rights Institutions; (f) Individuals or relevant Non-Governmental Organizations accredited to the African Union or to its organs, subject to the provisions of Article 8 of the Protocol.

Declaration to accept jurisdiction of the Court over individual and NGO communications Article 8(3) of the Merger Protocol provides ‘Any Member State may, at the time of signature or when depositing its instrument of ratification or accession, or at any time thereafter, make a declaration accepting the competence of the Court to receive cases under Article 30 (f) involving a State which has not made such a declaration.’

African Court of Human and Peoples’ Rights Judges appointed already and waiting for cases to be submitted. Court complements the protective role of the African Commission in terms of the African Charter (Article 2 of the Protocol Establishing the Court). Under the African Charter, the African Commission has promotes (state reporting, country missions, SR mechanisms, seminars and conferences and protects human rights (communications)

African Court on Human and Peoples’ Rights Jurisdiction: Article 3 of the Protocol: ‘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.’ – does this include international human rights instruments e.g. the CAT, ICCPR, CESR. Some scholars argue that yes and others that no.

African Court on Human and Peoples’ Rights Court may provide advisory opinion on any legal matter relating to the African Charter at the request of a member state of the AU, the OAU, any of its organs, or any African organization recognized by the OAU

African Court on Human and Peoples’ Rights Access: Under Article 5(1) of the Protocol Establishing the Court, the following are entitled to submit cases to the Court (a) The Commission; (b) The State Party which has lodged a complaint to the Commission; (c) The State Party against which the complaint has been lodged at the Commission; (d) The State Party whose citizen is a victim of human rights violation; (e) African Intergovernmental Organizations. Under article 5(3), the Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.

African Court on Human and Peoples’ Rights Article 5(3) requires that for an NGO to submit a case to the Court, it has to have observer status with the African Commission. As at end of December 2008, the African Commission had granted observer status to 392 NGOs (from Africa, Europe and America – north and South). The process is fairy simple – application indicating that you are carrying out activities furthering the objectives of the African Charter, financial statements, registration in country of practice or origin etc

African Court on Human and Peoples’ Rights Article 5(3) also allows individuals to institute cases before the Court. Most of the communications heard by the African Commission have been filed by NGOs and individuals. This is also the case with the inter- American, European, International (Human Rights Committee and Committee against Torture) human rights systems. There is only one inter-state communication so far (DRC v Uganda, Burundi and Rwanda – where the African Commission found violations of the African Charter and Geneva Convention II).

African Court on Human and Peoples’ Rights However, for NGOs and individuals to directly submit cases to the Court, the relevant state party must have made a declaration under Article 34(6) which provides that ‘at the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.’ SA has not made that declaration.

African Court on HPR Sources of law (Article 7): ‘The Court shall apply the provisions of the Charter and any other relevant human rights instruments ratified by the States concerned.’

African Court on HPR Article 6(2) provides that The Court shall rule on the admissibility of cases taking into account the provisions of article 56 of the African Charter. Article 6(2) should be read together with Rule 40.

African Court on HPR – Rule 40 Rule 40 provides: 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:

African Court on HPR – Rule 40(1) - (4) (1) disclose the identity of the Applicant notwithstanding the latter’s request for anonymity; (2) comply with the Constitutive Act of the Union and the Charter; (3) not contain any disparaging or insulting language; (4) not be based exclusively on news disseminated through the mass media;

African Court on HPR – Rule 40 (5) – (6) (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.

African Court on HPR – Rule 40(7) (7) not raise any mater or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union.

ACHPR submitting cases to the African Court on HPR Rules 87(2) of the Draft Interim Rules of the ACHPR provides that in situations of serious and massive human rights violations, ‘The Commission may…, in conformity with Article 5 of the Protocol on the African Court on Human and Peoples’ Rights, refer the matter to the African Court on Human and Peoples’ Rights.’

ACHPR submitting cases to the ACtHPR Rule 117 – complementarity nature of ACtHPR. Rule 119(1) if the ACHPR has taken a decision with respect to an inter-state or individual communication ‘against a State party that has ratified the Protocol on the establishment of the African Court, and the Commission considers that the State has not complied or is unwilling to comply with its recommendations in respect of the communication within the period stated in Rule 115 (total of 9 months), the Commission shall refer the communication to the Court, and inform the parties accordingly

ACHPR submitting cases to the ACtHPR Rule 119(2), Where the Commission decides to refer a decision to the Court in accordance with Rule 119(1), the Court shall adopt appropriate measures to implement the decision. Rule 119(3) – where state party has not complied with the provisions requested the Commission ‘shall immediately’ refer the matter to the Court. Rule 119(4) – Commission may file case against a state party in cases of serious and massive human rights violations

African Court on HPR Proceedings to be conducted in public (Article 10(1)) Article 10(2) ‘Any party to a case shall be entitled to be represented by a legal representative of the party's choice. Free legal representation may be provided where the interests of justice so require.’ – this is vital in the light of the fact that very few lawyers are experts in the African human rights law/international law especially in the jurisprudence emanating from the African Charter.’ However, Rule 28 provides that ‘Every party to a case shall be entitled to be represented or to be assisted by legal counsel and/or by any other person of the party’s choice.’ Rule 31 provides for legal assistance ‘within the limits of the financial resources available.’

African Court on HPR Findings: Article 27: (1) If the Court finds that there has been violation of a human or peoples' right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation (2) In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.

End Thank you