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

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Seunghi Shona Ha         Sample Essay 1

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’.The 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.’ 

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’. 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 Africa. Mutua had previously expressed the fear that the African Charter offered inadequate protection for women’s rights. Under Udombana’s assertion ‘an aggrieved woman or group of women could bring a case to the African court under another international treaty that better protects her rights’ because the ACHPR is not limited to the Banjul Charter.

This remarkably broad subject-matter jurisdiction may mean that Africa takes a giant stride forward in the protection of human rights. However, Charney opposes this view and warns that this may be a recipe for ‘jurisprudential chaos,’ where the ACHPR’s decision conflicts with other international organs decisions. Van de Mei disagrees saying that the proliferation of international oversight organs has not resulted in ‘jurisprudential chaos’ and that some confidence should be placed on the judges of the courts who will all be experienced and competent. While the fear of ‘jurisprudential chaos’ can be dispelled, the floodgate argument cannot. There is a real danger that such wide subject-matter jurisdiction will result in a massive volume of cases, unless the court is able to exercise a great degree of discretion.

The second part of the courts contentious jurisdiction is personal jurisdiction. The Protocol provides for two types of access: automatic and optional. Those that enjoy automatic access are: the African Commission, state parties, and African intergovernmental organizations. However, NGOs and individual victims of human rights violations cannot bring action against a state party unless they fulfill two conditions. Firstly, the Court will have discretion to grant or deny such access.  Secondly, when ratifying the Protocol or thereafter, the State must make a declaration accepting the jurisdiction of the Court to hear such cases. The Court also has the discretion to deny access at will. This aspect of the court’s jurisdiction concerning individuals and NGOs is perhaps one of the most controversial topics of debate that concerns the ACHPR.

A ‘serious shortcoming’of the ACHPR is the limitation of access placed on individuals and NGOs. Mutua asserts that ‘while limiting the access of NGOs and individuals to the Court may have been necessary to get states on board, it is nevertheless disappointing and a terrible blow to the standing and reputation of the court…

This criticism is well-founded considering those with limited access are the same parties that would have been the primary beneficiaries of the court. Harrington writes; ‘one need not be extensively versed in African politics to gauge the likelihood of African states making an extra effort to provide their citizens (and NGOs) with avenues through which to hold them accountable.’  The adoption of Protocol 11 to the ECHR in the European system, has resulted in significant progress in the protection of individual rights because it gave the ECtHR compulsory competence to examine petitions from individual victims of human rights violations. It should be remembered that the ACHPR is not an institution for the protection of the rights of states or OAU organs. Instead it is a primary forum for protecting citizens’ rights against the state and its agencies. Mutua has warned that unless interpreted broadly and liberally this limitation on access will ‘render the court virtually meaningless’ in the future.  

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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 interpretationof 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 ...

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