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The potential successes and weaknesses of the African Court of Human Rights

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Introduction

Public International Law Assessment: Critically evaluate the prospects of the African Court of Human Rights becoming a functional and influential judicial body. (Word Limit 2500) The establishment of an African Court of Human and People's Rights (ACHPR) is a landmark moment in international human rights law. With the recent election of judges to its first bench, there is a growing anticipation for its impact on a continent with a dismal record in human rights violations. However, critics are mindful of the potential barriers to success. In order to assess whether the new ACHPR will become a functional and influential in judicial body, I intend to examine the essential features of the Court and their weaknesses with appropriate references to the ACHPR's European and Inter-American counterparts. (i) Jurisdiction and Accessibility The answer to the question of whether the Africa court can be functional and influential depends largely on its jurisdiction because it will determine who will have access to the court and 'what types of violations can be entertained by the court'.1The Protocol of the African Court provides for three heads of jurisdiction for the African Court; contentious, advisory and conciliatory. Each must be examined in light of their potential strengths and weaknesses. Firstly, there is the subject-matter jurisdiction. The Court's jurisdiction extends 'to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights Instruments ratified by the States concerned.'2 In contrast to the European and Inter-American systems, the ACHPR will 'exercise direct jurisdiction over all human rights instruments 'ratified by the state concerned'3. This means the ACHPR's jurisdiction extends over regional, sub-regional, bilateral, and multi-lateral treaties. The Court is not limited to the Charter unlike its European or American counterparts that only have direct jurisdiction over the Conventions under which they were created. Udombana asserts that this has profound implications and takes the example of women's rights in Africa4. ...read more.

Middle

Firstly, there are still a number of African states that continue to show little or no regard for human rights29. 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 compliance30. 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.'31 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;32 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.33 Inadequate funding will affect the influence of the court. ...read more.

Conclusion

26 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 27 Umozurike, U. O., 'The present state of Human Rights in Africa', 1Calabar L.J, 62 (1986) p83-84 28 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 29 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 30 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 31 Article 32 Protocol on the African Court of Human and Peoples' Rights 32 (1996) 1 Inter-American Yearbook on Human Rights, at p. 110 33 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 34 Elsheikh, I.A.B., 'The future relationship between the African Court and the African Commission' (2002) 2 African Human Rights Law Journal 252 p253 35 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 36 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 37 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 38 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 39 Ibid., 40 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 ?? ?? ?? ?? Seunghi Shona Ha Sample Essay 1 1 ...read more.

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