In July 1998, the Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights (AfCHPR) was adopted in Ouagadougou, Burkina Faso. AfCHPR was established to complement the protective mandate of the ACHPR and the African Committee of Experts which was established under the Charter on the Rights and Welfare of the Child, thus providing the missing link in the African human rights system.
The Protocol entered into force on January 25, 2004. To date, twenty-four Member States have ratified the Protocol. The AfCHPR was established by the Khartoum Summit of January 2006 with the election of the first eleven Judges. AfCHPR held its first session in July 2006, in Banjul, The Gambia. AfCHPR is now established at its Headquarters in Arusha, Tanzania, with an approved staff complement of 57, including the 11 judges. The Assembly of the Union in July 2004 decided that the AfCHPR and the Court of Justice of the African Union established under Article 5 of the Constitutive Act should be merged under Assembly Decision AU/5(V). The Protocol on the merged courts is yet to be adopted by the Policy Organs of the Union. It should be noted that the Court of Justice provided for under the Constitutive Act has not been operationalised.
Article 2 of the Protocol that established the African Court for Human and Peoples’ Rights (AfCHPR) stipulates that it complements and strengthens the functions of the protection of human and peoples’ rights which were until recently exercised by the ACHPR. However, Article 3 of the same Protocol vests the Court with similar competence as that given to ACHPR in Article 40 of the African Charter for Human and Peoples’ Rights.
Execution of Statutory Functions and Audit Findings
Under Article 5 of the Protocol that established the Court, individuals and non-governmental organisations, which are recognised as observers of the AfCHPR, can file their complaints against a Member State directly to it. However, the Court can exercise that competence only if the Member State against which a complaint is filed has given its prior consent to the competence of the Court, through a declaration in line with Article 34(6) of the Protocol. Only one Member State; Burkina Faso, has consented to the Court’s jurisdiction regarding individual citizens and CSOs.
The Panel considers that a more ambitious revision of the Protocol would make recognition of the competence of the Court mandatory for all Member States. This would greatly extend access to the administration of justice more widely across the continent.
The AfCHPR has identified for itself four key challenges. They are: human resources and financial autonomy; clarification of the mandate of the AfCHPR and its standing within the Union, especially vis-à-vis the Commission; access to the AfCHPR by the African peoples; and the popularisation of the AfCHPR. However, it is still early to determine the human and financial resources that the AfCHPR will require as the body is yet to be fully operationalised. Out of the 78 posts requested, the Assembly approved 46 posts for the AfCHPR. This figure has to be compared to the 17 staff that the ACHPR currently has and the 37 it has requested for 2007.
It is important to note that the Court has held three sessions since July 2006. In the process, it has been able to adopt an organisational chart, rules of procedure and a staff structure.
The Panel recommends that:
The process of merging the African Court of Justice with the African Court on Human and Peoples’ Rights and Establishing the African of Justice should be accelerated;
The Assembly and the Executive Council of the African Union should ensure that decisions of the Court are complied with by Member States;
Member States, as signatories to the Constitutive Act which is very explicit on issues of human rights, should accept the oversight role of the ACHPR;
The ACHPR should review its partnership arrangements with non-African actors with a view to correcting the perception that it is overly donor-dependent;
The ACHPR should review its budget proposal to the AUC with a view to allocating more of its resources for the delivery of its mandate;
In addition, it would be important for the ACHPR to establish links with the other Organs of the Union;
Consideration should be given to the adoption of a non-renewable mandate for the Commissioners of the ACHPR for one term of office for six years only. The current Charter allows them to renew their tenure without limitation;
Article 19 of the Protocol establishing the Peace and Security Council should be used to ensure enforcement of the recommendations of the ACHPR;
The Union should ensure that these judicial organs are provided with the necessary qualified and experienced human resources as well as other material and financial resources to enable them discharge their mandate effectively;
States Party to the Protocol should be reminded of their obligation to grant authorization to the members of the ACHPR to visit their countries; and,
The ACHPR and the AfCHPR should ensure that they work closely together in order to avoid duplication of efforts, in view of the fact that the two Institutions have a mandate in the protection of human rights in the continent.