Additionally, the Court is also endowed with advisory powers as provided by Art. 4(1)(see below). The African court exercises the widest jurisdiction of any of the regional human rights systems in terms of who may submit requests for advisory opinions.
It has been asserted that the advisory jurisdiction can allow for a ‘dynamic and progressive interpretation’of the African Charter and other human rights treaties. As for its broad subject matter jurisdiction, this may well be a way for courts to become engaged in the application of domestic legislation in Africa while placing a strong emphasis on human rights treaties such as the ICESCR. However, so far these are only optimistic speculation. It assumes a highly liberal approach. There are no procedures that indicates to the court when to decline to exercise their advisory jurisdiction but that is not to say the court will be ultra-liberal. In addition, because advisory opinions are only advisory and have no binding effect, the importance of the Court’s advisory function depends a great deal on voluntary implementation of these opinions by states. While one remains hopeful that the advisory function of the court will give it an influential voice in Africa, its potential is yet to be seen.
(ii) Judicial Independence and Composition of the Court
The Protocol provides that the court be composed of eleven judges elected in their individual capacity by the OAU assembly of Heads of States and Government from among “jurists of high moral character and of recognized practical, judicial or academic competence and experience in (…) human rights’. In 2006, eleven highly qualified academics and jurists in the human rights fields were elected to the first bench of the ACHPR.
Judicial independence is enshrined in Arts 17 and 18. Yet, despite these provisions, judicial independence may be more difficult to achieve than originally envisaged by the drafters of the Protocol. One problem is that with the exception of the President, the Court does not have any full-time members. Again, due to concerns of funding, judges on the African Court will be on sabbatical for a great deal of the time. This may well lead to a situation where judges may take on additional posts incompatible with their duties as judges. If the African Commission has taught the OAU any lessons is that this sort of conflict of interest will cripple any decision-making body. This view is supported by Udombana, who suggests that this kind of potential conflict should be avoided at all costs. And Article 15(4) of the Protocol provides for this; “the Assembly may change this (part-time) arrangement as it deems appropriate.”
As Udombana asserts ‘the Court must be insulated from all manner of political wrangling by Member States, particularly in the appointment and composition of judges and ensured absolute autonomy in its undertakings’. Judicial independence will give the court ‘honor, prestige, integrity and unrestrained liberty to do justice’. If the Court is to have any kind of impact in the human rights system in Africa, it must have a court whose integrity is not in anyway suspect.
In addition, the newly elected judges will be drafting a wide range of procedures. The effectiveness of the Court will depend largely on how creative judges are in interpreting their mandate and jurisdiction. If their approach is too narrow or conservative, the Court is likely to fail in a similar manner to the Commission. If too broad, they will be buried under cases. It is hoped that the judges will take an appropriately liberal and broad interpretation on access and jurisdiction so that it may have the maximum impact and influence over Africa.
(iii) Enforcement and Remedial Powers of the Court
As Harrington notes, the word ‘court’ conjures the image of a ‘forum for the handing down of authoritative judgments…compliance with which is obligatory.’ Enforcement and remedial powers are essential for a court to function and have any kind of influence. The African Commission has been criticized as ‘largely inadequate and ineffective’ in ensuring the protection of human rights. It has been the hope of critics of the Commission that the creation of a court would ‘give teeth’ to the African Human Rights System.
Generally speaking, the Court is empowered by the Protocol to offer victims of human rights violations remedies and reparation, and to seek enforcement of its judgments as provided by Art 27. Article 30 of the Protocol provides that state parties ‘undertake to comply with the judgment in any case to guarantee its execution’.
On paper the court does seem to have enforcement powers but how likely is enforcement in reality?
Besides Article 30, there is no separate course of action provided by the Protocol when a delinquent state refuses to comply with the ACHPR’s decision. Therefore, the court’s effectiveness lies in the states’ willingness to comply. However, history shows that in the early 1980s Africa’s leaders were ‘simply not willing to subject themselves to a ‘supranational’ court’. It has been noted that African states have been reluctant to taking cases to international courts. Although, Africa has come a long way since then strict deference to state sovereignty and non-interference will not change easily.
In cases of non-compliance, the court is required to list the state in an annual report to the OAU. Udombana contends that this is a ‘potent public shaming mechanism for countries that do not comply with the judgments will strengthen the authority and effectiveness of the court.’Yet one worries that Udombana is blinded by optimism to see the reality of the human rights situation in Africa. While this ‘public shaming’ method may work in the European and Inter-American political sphere, it is hardly an effective enforcement mechanism for Africa. Firstly, there are still a number of African states that continue to show little or no regard for human rights. In the European system, if a member state were to flagrantly violate human rights, then there would be public uproar within that country and the Community. In Africa, the awareness is not the same. Moreover, the countries with most brutal violations of human rights have already been condemned by international bodies and the media and have done little to improve situations. Their names being printed on a list published by a fragmented OAU cannot be a realistic deterrence or reasonable chastisement given the graveness of the violations.
There is the suggestion that, by relying on Art 8 of the OAU Charter, the OAU could use forms of political and economic pressure to bring about compliance. But in most cases, the Court must rely on the good faith African states to respect the rule of law and co-operate.
(iv) Funding
Adequate funding is crucial in establishing and maintaining a functioning court. Article 32 of the Protocol provides that ‘expenses of the Court, emoluments and allowances for the judges and the budget of its registry, shall be determined and borne by the OAU… in consultation with the Court.’
In the 1998 Report of the OAU Ministers it was proposed to allocate a provisional budget of $US 753,518 to the Court for its immediate operation. This figure is a far cry from the budget approved for the Inter-American Court by the Assembly of the organization of American states in 1997 for $US 1, 035,700; by the OAU standards this may be generous. However, while the Inter-American budget is for a court already in existence to continue to operate, the smaller African budget is to establish a totally new set up from scratch. Udombana emphasizes the need for the OAU to take funding seriously because for a human rights machinery to be effective, adequate staffing and financial resources are essential.
Inadequate funding will affect the influence of the court. One of the primary reasons for the African Commission’s failings in fulfilling its mandate has been attributed to the lack of funding. Given this history, the skepticism is aimed at the expectation that the Court will be well-funded; ‘limited resource, human and material which have been available to the Commission (…) it would most probably be the case with the court.’ In addition, a court lacking in resources are more likely to bend to the will of politicians in order to secure more funding. Udombana who argues ‘a court lacking in computers, paper, library and translators may, by necessity, succumb to political pressure’ supports this view.
Structural solutions must be sought to avoid inadequate funding if the court is to have any chance of functioning to its potential and retaining its integrity.
(v) Relationship between the Court and the African Commission
Given that the Protocol requires the Court to ‘complement the African Commission’ their relationship can have a serious impact on the functionality and influence of the court. As Elsheik has pointed out the ‘importance of a meaningful future relationship between the Court and the Commission should be seen in the light of their common goal’
Successful functioning of the Court will depend on among other things, a viable Commission which works hand in hand with the Court. Many of the cases that the Court will hear will be referred from the Commission. The Commission may also play a significant role as a filter-mechanism for the court.
However, while a symbiotic relationship between the Commission and the Court would help in streamlining the African Human Rights system, their relationship may also create conflict. The Protocol fails to provide guidance regarding each body’s jurisdictions. Without a clear demarcationthe relationship between these bodies may serve to add confusion and conflict in a system already fraught with difficulties and procedural weaknesses. The weaknesses of potential decisional conflicts and unnecessary duplication are also raised. The Court and the Commission must work to establish a procedure to differentiate between their respective roles.
(vi) Conclusion
There is no doubt that the establishment of the ACHPR is a milestone in the protection of human rights in Africa. Some commentators have gone so far as to say that ; ‘it is the establishment and effective operation of the court which will complete the metamorphosis of the system for the protection of human rights in Africa’.However it is too premature to reach such an unequivocal or optimistic assessment. The ACHPR has some serious weaknesses which include; restrictions on NGO and individual applications, weak enforcement powers, inadequate funding, part-time judges and an unclear relationship with the Commission. The court’s problem is compounded by the indifference exhibited by African states towards human rights.
I do believe that the establishment of a Court is a step in the right direction. The idea of a court signals an aggressive approach to the protection of human rights. Having evaluated the system as a whole it does appear that the court will function, perhaps not smoothly at first but if the judges sitting on the first bench can establish clear procedures and exercise their discretion in areas such as jurisdiction, insightfully and diligently, with the long-term interest of the African human rights system in mind, over time the ACHPR will become an influential judicial body.
Bibliography
Journals
Anthony, A.E., ‘Beyond the Paper Tiger: The Challenge of a Human Rights Court in Africa’ (1997) 32 Texas International Law Journal 511
Charney, J., ‘Is international law Threatened by Multiple Internatonal Tribunals?’ (1998) 271 Recuueil des cours 101
Eno, R.W., ‘The jurisdiction of the African Court on Human and Peoples’ Rights’ (2002) 2 African Human Rights Law Journal 223
Elsheikh, I.A.B., ‘The future relationship between the African Court and the African Commission’ (2002) 2 African Human Rights Law Journal 252
Hopkins, K., ‘The effect of an African Court on the domestic legal orders of African states’ (2002) 2 African Human Rights Law Journal 234
Mohamed, A.A., ‘Individual and NGO Participation in Human Rights Litigation Before the African Court of Human and Peoples’ Rights: Lessons from the European and Inter-American Courts of Human Rights’ (1999) 43 Journal of African Law 201
Murray, R., ‘A comparison between the African and European Courts of Human Rights’ (2002) 2 African Human Rights Law Journal 195
Mutua, M., ‘The African Human Rights Court: A Two-Legged Stool?’ (1999) 21 Human Rights Quarterly 342
O’Shea, A., ‘A critical reflection on the proposed African Court on Human and Peoples’ Rights’ (2001) 1 African Human Rights Law Journal 285
Padilla, D., ‘An African Human Rights Court: Reflections from the perspective of the Inter-American system’ (2002) 2 African Human Rights Law Journal 185
Udombana, N.J., ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45
Van Der Mei, A.P., ‘The New African Court on Human and Peoples’ Rights: Towards an Effective Human Rights Protection Mechanism for Africa?’ (2005) 18 Leiden Journal of International Law 113
Books
Evans, M. D., Murray, R., Ed., The African Charter on Human and People’s Rights: The system in practice, Cambridge: Cambridge University Press 2002
Rehman, J., International Human Rights Law: A practical approach, London: Pearson Education Limited, 2003
Smith, R.K.M., Textbook on International Human Rights, 2nd Edition, Oxford: Oxford University Press, 2005
Steiner, H.J., International Human Rights in Context: Law, Politics, Morals, 2nd Edition, Oxford: Oxford University Press, 2000
O’Brien, J., International Law, London: Cavendish Publishing, 2001
Claude, R.P., Weston, B.H., Human Rights in the World Community: Issues and Action, 2nd Edition, Philadelphia: University of Pennsylvania Press, 1992
Shaw, M.N., International Law, 5th Edition, Cambridge: Cambridge University Press, 2003
Ouguergouz, F., The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, The Hague: Martinus Nijhoff Publishers 1993
Mutua, M., ‘The African Human Rights Court: A Two-Legged Stool?’ (1999) 21 Human Rights Quarterly 342
Article 3 (1) Protocol on the African Court of Human and Peoples’ Rights
Udombana, N.J., ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45 p90
Mutua, M., ‘The African Human Rights Court: A Two-Legged Stool?’ (1999) 21 Human Rights Quarterly 342 p358
Udombana, N.J., ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45 p90
Charney, J., ‘Is international law Threatened by Multiple Internatonal Tribunals?’ (1998) 271 Recueil des cours 101 p 101
Mutua, M., ‘The African Human Rights Court: A Two-Legged Stool?’ (1999) 21 Human Rights Quarterly 342 p345
Evans, M. D., Murray, R., Ed., The African Charter on Human and People’s Rights: The system in practice, Cambridge: Cambridge University Press 2002 p319
Eno, R.W., ‘The jurisdiction of the African Court on Human and Peoples’ Rights’ (2002) 2 African Human Rights Law Journal 223, p230
Mutua, M., ‘The African Human Rights Court: A Two-Legged Stool?’ (1999) 21 Human Rights Quarterly 342, p355
‘At the request of a member State of the OAU, the OAU, any of its organs or any African organization recognized by the OAU, the Court may provided an opinion of any legal matter relating the Charter or any other relevant human rights instruments ratified by the states’.
Eno, R.W., ‘The jurisdiction of the African Court on Human and Peoples’ Rights’ (2002) 2 African Human Rights Law Journal 223 p232
International Covenant on Economic, Social and Cultural Rights
Article 11 (1) Protocol Establishing the African Court of Human and Peoples’ Rights
Protocol Article 15(4) (“All judges except the president shall perform their functions on a part-time basis”
Udombana, N.J., ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45 p85
Evans, M. D., Murray, R., Ed., The African Charter on Human and People’s Rights: The system in practice, Cambridge: Cambridge University Press 2002 p334
Hopkins, K., ‘The effect of an African Court on the domestic legal orders of African states’ (2002) 2 African Human Rights Law Journal 234 p234
Article 27 Protocol on the African Court of Human and People’s Rights; If the court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation. In cases of extreme gravity and urgency, and when necessary to avoid irreplaceable harm to persons, the court will adopt such provisional measures as it deems necessary.
Van Der Mei, A.P., ‘The New African Court on Human and Peoples’ Rights: Towards an Effective Human Rights Protection Mechanism for Africa?’ (2005) 18 Leiden Journal of International Law 113 p116
Umozurike, U. O., ‘The present state of Human Rights in Africa’, 1Calabar L.J, 62 (1986) p83-84
Udombana, N.J., ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45 p94
Hopkins, K., ‘The effect of an African Court on the domestic legal orders of African states’ (2002) 2 African Human Rights Law Journal 234 p238
Udombana, N.J., ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45 p95
Article 32 Protocol on the African Court of Human and Peoples’ Rights
(1996) 1 Inter-American Yearbook on Human Rights, at p. 110
Udombana, N.J., ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45 p100
Elsheikh, I.A.B., ‘The future relationship between the African Court and the African Commission’ (2002) 2 African Human Rights Law Journal 252 p253
Udombana, N.J., ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45 p101
Udombana, N.J., ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45 p101
Elsheikh, I.A.B., ‘The future relationship between the African Court and the African Commission’ (2002) 2 African Human Rights Law Journal 252 p 253
Udombana, N.J., ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45
Ouguergouz, F., The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, The Hague: Martinus Nijhoff Publishers 1993 p 287