Access to Justice Mechanisms for Individuals and Groups under the African Regional Human Rights System: An Appraisal

in African Journal of Legal Studies

Under the African regional human rights system, relevant legal instruments confer substantive human and peoples’ rights on African individuals and groups. There are also some justice mechanisms (judicial and quasi-judicial) for their enforcement at the regional level when local remedies fail or are non-existent. However, due to factors like political influence and the nature of some provisions of some of the instruments, access to the mechanisms and, therefore, to justice, eludes most individuals and groups. This article, inter alia, examines the extent of access guaranteed individuals and groups to the mechanisms available at the African regional level for enforcing their rights against violator African states. It discusses different impediments to this access and the consequent injustice. It suggests reforms, such as amendment of the access-impeding provisions of the relevant instruments.

Abstract

Under the African regional human rights system, relevant legal instruments confer substantive human and peoples’ rights on African individuals and groups. There are also some justice mechanisms (judicial and quasi-judicial) for their enforcement at the regional level when local remedies fail or are non-existent. However, due to factors like political influence and the nature of some provisions of some of the instruments, access to the mechanisms and, therefore, to justice, eludes most individuals and groups. This article, inter alia, examines the extent of access guaranteed individuals and groups to the mechanisms available at the African regional level for enforcing their rights against violator African states. It discusses different impediments to this access and the consequent injustice. It suggests reforms, such as amendment of the access-impeding provisions of the relevant instruments.

1 Introduction

Promotion and protection of human rights have been major agenda items for African regional inter-governmental co-operation from the 1960s when many African states gained political independence. Consequently, when the region’s first inter-governmental organization, the Organization of African Unity (“oau”), was formed in 1963, one of its fundamental purposes was “To promote international co-operation, having due regard to the . . . Universal Declaration of Human Rights.”1 The conception of an African regional human rights system at this time was influenced by some peculiar circumstances. These included the region’s multi-ethnic composition; allegations of marginalization and oppression by numerous minorities against national governments dominated by majority groups; African peoples’ communal lifestyles; and, incessant military coups resulting in the emergence of oppressive military governments across the region.

Conscious of these factors, the founding fathers of Africa’s human rights system invented a human rights promotion and protection regime that focus not only on individual rights, but also on rights of minority peoples living and acting as groups. This gave rise to the phrase: “human and peoples’ rights” in the African regional human rights system.

Like some other regional (continental or transcontinental) interstate organizations2 that have adopted regional human rights instruments,3 the oau (later renamed African Union – “au”)4 has, in line with the aforementioned African regional peculiarities and guiding norms in relevant universal international human rights instruments,5 adopted many human rights instruments for the African region. These instruments which, together, establish the African regional human rights system include: the African Charter on Human and Peoples’ Rights6 (“African Charter” or “Charter”); Convention Governing the Specific Aspects of Refugee Problems in Africa7 (“African Refugee Convention”); and, African Charter on the Rights and Welfare of the Child8 (“African Child Rights Charter”). Others are: the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa9 (“African Women’s Rights Protocol”) and African Youth Charter.10 These instruments confer numerous classes of substantive human and peoples’ rights on African individuals and groups, ranging from “first generation” (civil and political) rights, through “second generation” (economic, social and cultural) rights, to “third generation” (group, collective or solidarity) rights.11

In addition, some of the system’s instruments have created two different principal justice mechanisms, together with their respective administering institutions, to enforce the aforesaid rights when an individual and/or group is unable to obtain local remedies in the internal justice system of an African state that violates these rights. These mechanisms are: the quasi-judicial mechanism of the African Commission on Human and Peoples’ Rights12 (“African Commission”, “Commission” or “achpr”), and the judicial mechanism of the African Court on Human and Peoples’ Rights13 (“African Court” “Court” or “ACtHPR”). However, for several reasons, access to these mechanisms eludes most African individuals and groups. As such, their quest to obtain justice through these mechanisms is often defeated.

This article is divided into four parts. Part 1 is an introduction. Part 2 considers the scope of the substantive human and peoples’ rights guaranteed individuals and groups under the African regional human rights system. Part 3 examines the extent of access enjoyed by individuals and groups to the system’s justice mechanisms for the enforcement of the substantive rights, while Part 4 concludes the article.

2 The Substantive Rights Framework of the African Regional Human Rights System

The African Charter protects not only civil and political rights, but also economic, social and cultural rights; and, group/collective/solidarity rights; and imposes upon African states parties the duty to respect these rights.14 This is unlike the principal human rights treaties of some other regional systems that mainly protect civil and political rights.15

Articles 2 to 18 of the African Charter list an array of rights and freedoms which all individuals within the African region are guaranteed, without distinction as to race, ethnic group, colour, gender, language, religion, political or any other opinion, national and social origin, fortune, birth, etc. These include such civil and political rights as rights to: equality before the law and equal protection of the law; life and human dignity; liberty and personal security; fair hearing and fair trial; freedoms of information, association, assembly and movement; free participation in government; and, right to property. The economic, social and cultural rights include: right to work under equitable and satisfactory conditions; right to equal pay for equal work; right to enjoy the best attainable state of physical and mental health; and rights to education, participation in cultural life and family protection. The Charter also guarantees the following collective rights of all peoples of the region (peoples’ rights): equality of all peoples; right to existence, and self-determination; right to free disposal of wealth and natural resources; right to economic, social and cultural development; right to national and international peace and security; and right to general satisfactory environment favourable to development.16

On its part, the African Refugee Convention17 confers certain special rights on refugees in Africa.18 It guarantees refugees a right to freedom from rejection, return or expulsion (nonrefoulement);19 and, rights to: voluntary repatriation,20 non-discrimination,21 and travel documents.22 States parties are obligated to respect these rights in all refugee and asylum matters.23

The African Child Rights Charter24 confers special rights on African children (persons below the age of eighteen years) and imposes corresponding duties on African states to ensure their realization. These are rights to: survival; name and nationality; freedom of expression; freedom of association; freedom of thought, conscience and religion; privacy, leisure, recreation and participation in cultural activities; special measures of protection for handicapped children; and right to health. Others are rights to: protection against child labour, child abuse and torture; special treatment in criminal proceedings; parental care and protection; and, protection against harmful social and cultural practices.25

Besides their rights under the African Charter,26 the African Women’s Rights Protocol,27 inter alia, vests in African women a range of special rights. These include rights to: dignity; life, integrity and security of the person; marital equality; access to justice and equal protection before the law; participation in the political and decision-making process; peace; and, education and training.28 Others are: economic and social welfare rights; health and reproductive rights; rights to: food security; adequate housing; positive cultural context; healthy and sustainable environment; sustainable development; inheritance; and widow’s rights.29

Besides requiring states parties to respect these rights and ensure their realization, the Protocol imposes on them additional duties to facilitate the full enjoyment of the rights. The duties include: elimination of all forms of discrimination against women; elimination of all forms of harmful practices negatively affecting the human rights of women; and, protection of women in armed conflicts.30 Others are: special protection of elderly women; special protection of women with disabilities; special protection of women in distress; and, provision of appropriate remedies to victims of women’s rights violations.31

Also, under the African Youth Charter,32 African youth or young people, i.e., persons between the ages of 15 and 35 years,33 are guaranteed a special class of rights and freedoms which African states must respect. These include rights to: non-discrimination; freedoms of movement, expression and association; freedom of thought, conscience and religion; protection of private life; protection of the family; property; social, economic, political and cultural development; participation in all spheres of society; and, education and skills development. Others are rights to: sustainable livelihood and youth employment; health; special treatment in criminal proceedings; rights to: live anywhere in the world; leisure, recreation, sportive and cultural activities; special protection for girls and young women; and, special care for mentally and physically challenged youth.34

The range of rights entrenched in the above-cited instruments intimates that the African regional human rights system guarantees individuals and groups, respectively, a reasonably wide scope of substantive human and peoples’ rights. The next issue is to examine how far the individuals and groups can access the system’s justice mechanisms to enforce the rights. This is treated in the next part.

3 Access to Justice Mechanisms

When local remedies fail or do not exist, there are two main justice mechanisms available in the African regional human rights system for enforcing violated rights of individuals and groups at the regional level. These are the quasi-judicial mechanism, typified by the non-binding procedure of the African Commission, and the judicial mechanism, represented by the binding procedure of the African Court.

3.1 Access to Quasi-Judicial Mechanism

At present, there is only one quasi-judicial institution in the African regional human rights system with powers to entertain cases of alleged human rights violation and to award remedies to individual and/or group victims.35 This is the African Commission noted above. There is also the African Committee of Experts on the Rights and Welfare of the Child established under the African Child Rights Charter.36 Although this Committee is empowered to interpret the Child Rights Charter and to receive and entertain relevant communications from individuals and groups,37 it has no power to award remedies to individuals and groups against erring states parties. It can only investigate communications lodged with it and make fact-finding reports to the au Assembly. Thus, the discussion here is limited to access to the African Commission’s quasi-judicial mechanism.

By Article 30 of the African Charter,38 the Commission is established “. . . to promote human and peoples’ rights and ensure their protection in Africa.” Furthermore, under Article 45(2), one of the Commission’s functions is to “Ensure the protection of human and peoples’ rights under conditions laid down by the . . . Charter.”

Under Articles 47–54 of the Charter, states parties to the Charter have access to the Commission’s mechanism against fellow states parties. These provisions create an inter-state complaints procedure. By virtue of this procedure, a state party may lodge a complaint alleging that another party has violated human and/or peoples’ rights of individuals and groups entrenched in the Charter. The complaint would request the Commission to entertain it in its quasi-judicial capacity and to make necessary findings and recommendations which may include the award of appropriate remedies to the individual(s) and/or group(s).

Articles 55 and 56 of the Charter provide for “other communications” by means of which individuals and groups can directly petition the Commission, alleging violations by states parties of their human and peoples’ rights. Non-governmental organizations (ngos) can also make such petitions on behalf of individuals and groups.

Upon receipt of a communication from an individual or group, the Commission shall first ascertain whether the individual or group has satisfied the preconditions to commencing action before it, including exhaustion of local remedies. If convinced, the Commission shall notify the state party complained against. Thereafter, it shall conduct a quasi-judicial consideration of the substantive merits of the communication, invariably involving taking evidence from available sources.

Upon conclusion of its deliberations, if the communication apparently relates to special cases which reveal the existence of a series of serious or massive violations of human and peoples’ rights, the Commission shall draw the attention of the au Assembly to these special cases. The Assembly may then request the Commission to undertake an in-depth study of the cases and make a factual report, accompanied by its findings and recommendations.39 These recommendations would, most often, include reparations and other forms of direct remedies for the individual or group victims.

Pursuant to the Charter’s provisions dealing with individual communications, the Commission has entertained many rights violation cases initiated by individuals and groups against African states. In many of these cases, the Commission recommended reasonably sufficient reparations in favour of individuals and groups against the erring states.40

In Bissangou v Republic of Congo,41 the Complainant sued the Respondents in the Congolese court to obtain recognition of the Congolese Republic’s responsibility and reparation for damage caused to his property by Congolese soldiers, armed bands and police officers. The Congolese court ordered the Respondents to pay the Complainant a sum of 195 037 000 fcfa (equivalent to 297 333.98 Euros). The Respondents refused. The Complainant thus submitted an individual communication to the Commission, alleging Congo’s violation of his rights under the African Charter, and asked the Commission to recommend, inter alia, that Congo should comply with the Congolese court’s order. The Commission found for the Complainant and:

  1. urged the Congolese Republic to harmonize its legislation with the African Charter;

  2. requested Congo to comply with the Congolese court’s order; and

  3. further requested Congo to compensate for the Complainant’s loss according to Congolese law.

In Koso & Ors v Democratic Republic of Congo,42 the Complainants (three human rights activists) filed a communication on behalf of two civilians and three soldiers who were tried, convicted, and sentenced to death in the Democratic Republic of Congo (drc) for a common law offence by a military court comprising five judges of which only one was a trained jurist. The court’s enabling statute43 provided that the court’s sentence could neither be opposed nor appealed. At the Commission, the Complainants alleged that the statute’s provisions and the court’s proceedings constituted drc’s violation of Articles 7(1) (fair hearing) and 26 (judicial independence) of the African Charter against the convicted persons. Accordingly, the Commission:

  1. declared that drc had violated the rights to appeal, presumption of innocence and judicial impartiality provisions of the Charter;

  2. found that the establishment of a military court whose competence extends to common law offences violated Article 7 of the Charter; and

  3. urged drc to grant the victims a fair and equitable compensation for their damage.44

In view of the above, it could be concluded that the Charter guarantees individuals and groups unrestrained access to the quasi-judicial mechanism of the region’s human rights system. Thus, I agree with George Wachira as follows:

The protective function of the African Commission . . . makes the . . . Commission one of the most flexible regional human rights instruments, entertaining complaints from anyone regarding violations of human rights . . . . That approach gives . . . generous access to the African Commission to anyone who has an interest in the protection of human rights in Africa. . . . The generous interpretation by the African Commission . . . has enabled ngos and activists to take up cases of human rights violations on the continent that would otherwise have not reached the Commission. . . .45

However, one factor undermines the efficacy of the unrestrained access guaranteed individuals and groups. This is the fact that the Commission’s decisions are not legally binding on a state party that the Commission finds to have violated the Charter rights of individuals and/or groups. States may only voluntarily comply with its decisions uninfluenced by any legal obligation or fear of sanctions. Consequently, an excellent decision of the Commission finding a state liable for grave human rights violations and requiring the state to make necessary reparations to the individual or group victims and/or discontinue the violations, may never be implemented.46 In International Pen & Ors (on behalf of Ken Saro Wiwa & Ors) v Nigeria,47 the Commission ordered provisional measures requesting Nigeria to suspend a proposed execution of eight individuals, pending the Commission’s final determination of the communications filed on their behalf against Nigeria. The individuals were tried without a fair hearing and sentenced to death by a Nigerian military tribunal for a civilian offence (treason). However, Nigeria went ahead and executed the individuals. No sanction was imposed on Nigeria for this disobedience.

To this extent, the remedies the Commission may be awarding individuals and groups against African states under this mechanism may become an empty pronouncement. As Wachira further observes:

One of the greatest constraints to the effectiveness of the African Commission’s protective mandate is . . . lack of implementation and enforcement of its recommendations. . . . Indeed, this is one of the greatest frustrations expressed by victims of human rights violations. . . . The African Commission’s finding that Nigeria had violated its human rights obligations brought protests from the state. The state argued that the African Commission lacked judicial capacity to make such recommendations. . . .48

Again, the Commission is a part-time quasi-judicial institution and does not entertain cases regularly. It only holds two ordinary (main) sessions per year, each lasting about two weeks.49 This practice implies that most human rights enforcement cases commenced by individuals and groups for prompt remedies are doomed, ab initio, to suffer long delays before any remedies could be obtained. Indeed, it could take the Commission up to six years or more to conclude a case.50 The case of Good v Botswana51 took the Commission six years to determine. Itundamilamba v Republique Democratique du Congo52 lasted over eight years, while Kazingachire & Ors v Zimbabwe53 took the Commission ten years to decide. During these delays, more serious but avoidable damage may occur.

In conclusion, it could be said that although the arrangement on access for individuals and groups to the African regional human rights system’s quasi-judicial mechanism appears promising, the access is ineffective to realize their human and peoples’ rights. Thus, this arrangement needs reforms.

3.2 Access to Judicial Mechanism

This sub-section is further sub-divided into three parts. These are a general analysis, a brief comparison with the practices in some other regional human rights systems around the world, and the propriety or otherwise of vesting right of access in states and related non-human entities on behalf of individuals and groups. These are examined below.

3.2.1 General Analysis

The African Charter54 did not originally create a judicial mechanism. It only established the African Commission’s non-binding quasi-judicial mechanism described above. Consequently, the spate of human rights violations by African states kept increasing. Owing to the non-binding nature and other weaknesses of the Commission’s mechanism, the need for a binding judicial mechanism became obvious. On 9 June, 1998, this mechanism was created via au’s adoption of the ACtHPR Protocol.55 The Protocol created the African Court on Human and Peoples’ Rights (“ACtHPR”, “African Court” or “Court”).

The Protocol gives the African Court the mandate to complement and re-enforce the protective (quasi-judicial) functions of the African Commission.56 However, the Court’s human rights jurisdiction goes beyond the substantive rights in the African Charter to “all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Court’s Protocol and any other relevant human rights instruments ratified by the states concerned.”57 This is a very welcome development, since it brings under the Court’s binding judicial mechanism all African human rights treaties, including those on refugees, women, children, and youth, described above, and global international human rights treaties ratified by African states.

The au also recently adopted an instrument that hoped to create a new regional court with a human rights jurisdiction – the African Court of Justice and Human Rights (“acjhr”). This is proposed to be a merger of the au Court of Justice (“aucj”)58 and the ACtHPR and to simultaneously take over the respective jurisdictions of these two separate courts.59 The acjhr’s enabling legal instruments are the Protocol on the Statute of the African Court of Justice and Human Rights60 (“acjhr Protocol”) and the Statute of the African Court of Justice and Human Rights61 (“acjhr Statute”) annexed to it. These instruments are intended to replace the au Court of Justice Protocol62 and the ACtHPR Protocol.63 However, the acjhr Protocol and Statute have not come into force and are unlikely to do so in the near future due to the slow pace at which au member states are ratifying them. For now, the ACtHPR Protocol continues to regulate the system’s judicial mechanism. Consequently, the discussion that follows is based on the ACtHPR Protocol.

Article 5(1) of the ACtHPR Protocol gives certain entities automatic, direct and unrestrained access to the Court’s judicial mechanism. These are: (a) the African Commission; (b) the state party which had 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; and (e) African Intergovernmental Organizations. These entities enjoy unrestrained locus standi before the Court. A state party interested in a case may also request the Court for permission to join.64

However, for individuals, groups, and Non-Governmental Organizations (“ngos”) with observer status before the Commission, their locus standi before the Court is restrained. Under Article 5(3), they can only directly institute human rights enforcement cases before the Court in the highly limited situation stated in Article 34(6). Article 34(6) 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.65

By the combined effect of these provisions, access for individuals and groups to the Court’s judicial mechanism is highly circumscribed – limited to cases where the violator state party has “magnanimously” made the declaration referred to in Article 34(6). Otherwise, any case commenced before the Court by any individual or group against an African state – no matter the merits of the case, the gravity of the rights violations alleged, and the impossibility of local remedies – will be struck out by the Court as inadmissible and outside the Court’s jurisdiction.66

In Uko & Ors v Republic of South Africa,67 the Applicants sued South Africa at the Court for violating many of their rights protected under the African Charter,68 African Child Rights Charter69 and iccpr.70 However, the Court struck out this case as inadmissible, holding that it lacks jurisdiction to entertain it, since South Africa has not made the aforementioned declaration. There are similar decisions in Mahmoudi v Republic of Tunisia;71 Timan v Republic of Sudan;72 and Yogogombaye v Senegal.73 Thus, despite the initial euphoria that greeted the emergence of this mechanism, access to it for the individuals and groups it is meant to protect remains at the mercies of the violator states against whose repressive activities the region’s human rights system is created. One commentator, therefore, characterizes the Court’s regime as “a case of a poacher turned gamekeeper.”74

This article maintains that, for good reasons, African individuals and groups should have automatic, direct and unrestricted access to the judicial mechanism of the African regional human rights system. These reasons are as discussed below.

First, the historical development of international human rights law (universal, regional or sub-regional) discloses that its objective is to benefit human beings. The substantive rights it confers are for the protection of individuals and groups. This is why it serves the ends of justice for individuals and groups to be vested with unmediated right of access to the mechanisms by which to enforce their rights against violators. Otherwise, the substantive rights would remain unrealizable. In Klass & Ors v Federal Republic of Germany,75 the European Court of Human Rights (“European Court” or “ECtHR”) was asked to pronounce on the need for an individual’s unrestricted access to the quasi-judicial mechanism of the now defunct European Commission on Human Rights to enforce rights conferred by the European Convention. In its judgment (the ratio of which applies, mutatis mutandis, to the ECtHR’s judicial mechanism), it held:

. . . access by individuals to the Commission . . . is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention. This machinery involves, for an individual who considers himself to have been prejudiced by some action claimed to be in breach of the Convention, the possibility of bringing the alleged violation before the Commission . . . . the effectiveness . . . of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention’s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.76

The second reason individuals and groups should have unrestricted access is that relevant international human rights instruments always bear sovereign states in mind as the principal violators of human rights. The main essence of these instruments is, therefore, to protect individuals and groups from the repressive activities of states.77 Thus, denying the individuals and groups unimpeded access to the relevant justice mechanisms would amount to injustice. This would contradict the whole idea of human rights justice. Allowing only sovereign states and related non-human entities free access to these mechanisms would amount to retrogression into the old state-centred notion of international law that only saw individuals as objects and not subjects of international law. It should be noted that international human rights law essentially evolved to overcome this notion. As observed:

. . . government efforts to restrain individual enforcement mechanisms highlight complaints about the very nature of state sovereignty. Most human rights prohibitions are defined as restraints on government powers. Individual enforcement of human rights norms generally pits the individual against a state, challenging both the violations of international law and the failure to provide domestic remedies. Governments are obligated both to restrain from committing human rights abuses and to afford those injured by such abuses remedies by which they can seek redress. Thus, human rights enforcement generally involves an individual victimized by state repression who seeks redress against a government, its officials, or those who act in concert with them. . . . Restrictions on individual efforts to enforce international law only highlight the inconsistencies of a world in which many humans have no access to remedies for violations of their most fundamental rights. States have developed detailed rules that govern their own behavior toward individuals, but have resisted efforts to create comprehensive enforcement schemes. The existence of rights without remedies exposes a basic tension in the foundations of international law. Individuals are pushing hard to force states to concede that they must strengthen enforcement mechanisms and hold accountable those who violate basic rights.78

Besides the weakness of lack of locus standi for individuals and groups analyzed above, Article 6(1) of the ACtHPR Protocol provides that when deciding on the admissibility of a case instituted under Article 5(3), the Court may request and rely on the opinion of the Commission. Also, Article 6(3) provides that the Court may consider cases or transfer them to the Commission. The language of Article 6(3) makes it clear that even though the Court is created to issue binding decisions and award legally enforceable remedies to individual and group rights violation victims, the Court’s entertainment of the cases before it is merely discretionary. Where a state party to the Protocol “magnanimously” makes the declaration mentioned in Article 34(6), the Court may still refer meritorious cases of individuals and groups to the African Commission for determination under the latter’s non-binding quasi-judicial mechanism. This amounts to an indirect denial of access for individuals and groups to the system’s judicial mechanism.

3.2.2 Access to Judicial Mechanism under the African, European and Inter-American Regional Human Rights Systems: A Brief Comparison

At this stage, it is necessary to briefly compare the African system’s judicial mechanism with the judicial mechanisms of other regional human rights systems around the world. The essence of this comparison is twofold. The first is to show how far the African system is similar to or different from these other systems as regards access to judicial mechanism for individuals and groups. The second is to identify possible reformative lessons, if any, that the African system may learn from these other systems in this regard.

By Article 61(1) of the American Convention on Human Rights,79 “only the States Parties and the Commission [Inter-American Commission on Human Rights] shall have the right to submit a case to the Court [Inter-American Court of Human Rights].” This provision indicates that, like under the African judicial mechanism,80 individuals and groups are denied access to the Inter-American Court’s judicial mechanism. Indeed, it seems that the position of individuals and groups is better under the African system than it is under the Inter-American system, since an African state may be “magnanimous” enough to make a declaration permitting individuals and groups to sue it before the African Court.81 In the case of the Inter-American Court, prohibition of access for individuals and groups appears absolute; in fact, it is the exclusive preserve of the Inter-American Commission and states parties to the American Convention.

However, it appears that the hardship the Inter-American practice inflicts on individuals and groups has been slightly ameliorated. By the new Rules of Procedure of the Inter-American Commission on Human Rights82 (“Inter-American Commission Rules”), the decision whether the Commission should refer to the Court an individual victim’s case (which the Commission has entertained in its quasi-judicial capacity) is now that of the individual.83 This position appears to hold a lot of promise for individuals and groups in the Americas. However, under these new Rules (especially Article 45(1)), even if the individual victim decides that the case should be submitted to the Court, the Commission is not bound by the victim’s decision, and can decide by its majority, for any reason of its own, not to submit it.

Under the European system, Article 34 of the European Convention,84 inter alia, guarantees individuals and groups an automatic, direct and unlimited access to the European Court to litigate their human rights cases against violator states parties and without the need for interposition of another entity. The Article states as follows:

The Court may receive applications from any person, non-governmental organizations or group of individuals claiming to be the victim of a violation by one of the High Contracting States of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the exercise of this right.

This provision of the European Convention, in my view, perfectly accords with the basic rationale for the development of international human rights law as highlighted above. It is, therefore, suggested that the African system should copy from this European system’s practice.

3.2.3 Direct Access for African States and Related Non-human Entities on Behalf of Individuals and Groups: Propriety or Otherwise

Having shown the restricted access for individuals and groups to the African system’s judicial mechanism, it is now necessary to critically evaluate the propriety or otherwise of the automatic direct access to the mechanism granted the entities mentioned in Article 5(1) of the ACtHPR Protocol85 on behalf of individuals and groups. Can these “favoured” entities86 truly champion the cause of justice for these individuals and groups? The evaluation as regards each of these entities is done below.

3.2.3.1 The Commission

From the beginning of modern regional human rights protection systems, the creation and use of human rights commissions has been a popular practice. They have featured in the three principal regional human rights treaties of the world.87 They are primarily meant to play an intermediary role, i.e., shielding the regional human rights courts from frivolous suits by hearing cases and referring their reports to the courts, the only institutions with the powers to issue binding legal decisions.88

It could be argued that the automatic direct access to the African Commission’s quasi-judicial mechanism enjoyed by individuals and groups under the African Charter,89 coupled with the Commission’s expected intermediary role aforementioned, would justify denying individuals and groups direct access to the system’s judicial mechanism. This is because the Commission’s unlimited access to the Court’s mechanism is meant for the benefit of individuals and groups. It could be further argued that the Commission’s direct access to the Court’s judicial mechanism would probably save these individuals and groups the high costs and other inconveniences of international human rights litigation. It is also arguable that the Commission, having been involved from the onset in human rights administration, would be in a better position than individuals and groups to know the latter’s cases that are meritorious enough to succeed before the Court.

However, these arguments could be easily punctured on a number of grounds. First, the ACtHPR Protocol merely confers on the Commission a right (not an obligation) to refer cases of individuals and groups to the Court. Therefore, the decision to refer or not, no matter the merits of the case(s), is at the Commission’s sole discretion. Thus, due to such extraneous factors as political and/or economic considerations, the Commission may refuse to refer even cases of grave human rights violations to the Court, and cannot be compelled to the contrary. In such circumstances, individuals and groups would continue to suffer injustice.90

Furthermore, it is obvious that the nature of the complementarity between the Commission and the Court, as introduced by the Protocol, would clearly engender some feeling of equality between these two institutions. It is submitted that a practice whereby the Commission may transfer cases to the Court and vice versa, although originally well-intended, could lead to rivalry and a “territorial defence” complex between the Commission and the Court. Consequently, the Commission may decide to starve the Court of deserving cases and conclude them under its non-binding quasi-judicial mechanism. Since the bulk of the cases to be handled by the Court is expected to come from the Commission, in the absence of any legal provision compelling the Commission to refer such cases to the Court, the Commission could succeed in deliberately rendering the Court virtually redundant. The end result of this “fight of the elephants” is that the “grasses” (individuals and groups) would suffer injustice.91

The Commission also has the problem of inordinate delays. As earlier shown,92 the Commission, despite the high volume of cases pending before it, is a part-time justice institution and holds only two ordinary sessions in a year, each session lasting for two weeks.93 Consequently, in many human rights cases requiring the Commission’s urgent remedial action, the Commission may not be readily available to give the needed urgent attention. Therefore, it is submitted that giving the Commission (as against the individual and group victims) the right to refer such cases to the Court for adjudication would imply that the urgency of the cases would be completely defeated. The damage sought to be avoided by such urgent cases would also be eventually incurred. Finally, it should be noted that the African Charter that created the Commission vests it with a protective (quasi-judicial) mandate only in relation to the human and peoples’ rights in the Charter and no further.94 On the other hand, as already shown above, the ACtHPR Protocol,95 in addition to the African Charter rights, confers the Court with jurisdiction over rights created by other human rights instruments.96 However, when read together, Articles 5(1)(a) and 6(1) and (3) of the ACtHPR Protocol not only confers on the Commission access to the Court in respect of rights in these other instruments. They also empower the Commission to determine the admissibility of cases brought before the Court pursuant to these other instruments. This is erroneous.

The relevant principle of law is expressed in the Latin maxim: “nemo dat quod non habet” (you cannot give what you do not have).97 Since the Commission’s quasi-judicial powers do not extend to the rights entrenched in the other instruments, and since individuals and groups cannot validly take cases of violation of such rights to the Commission, it means that the Commission has no legal power to refer such cases to the Court. This is because the cases the Commission can refer to the Court must be those that the Commission has the power to entertain in its quasi-judicial capacity, and such cases must originally have been validly commenced at the Commission. This means that when African states violate the rights of individuals and groups in these other instruments, those cases may never get the attention of the system’s judicial mechanism through the Commission’s direct access. Again, since the ACtHPR Protocol gives the Commission the power to determine admissibility of cases for the Court, the implication is that meritorious cases of violation of human rights entrenched in these other instruments, but not in the African Charter, would be unfortunately declared inadmissible by the Commission, since the Commission lacks the jurisdiction ab initio to review them.98

3.2.3.2 The State Party which had Lodged a Complaint to the Commission

Article 5(1)(b) of the ACtHPR Protocol introduced the inter-state complaint procedure into the judicial mechanism of the region’s human rights system by providing for automatic direct access to the Court for the State Party which had lodged a complaint to the Commission. To this end, a state party to the African Charter and to the Protocol, which has initiated a case at the Commission against another state party to these two instruments and alleges that the latter has violated the human and peoples’ rights of individuals and groups under the Charter, can subsequently refer such a case to the Court on behalf of the said individuals and groups. The use of this inter-state complaint procedure has become a popular practice in contemporary international human rights law. This is evident in the high number of international human rights instruments that have sanctioned it.99 However the use of this procedure brings to fore two pertinent questions: (1) How far has the procedure been effective in safeguarding the human rights of individuals and groups? (2) To what extent are states ready to lodge complaints ( judicial or quasi-judicial) against fellow states on allegations of violation of human rights of individuals and groups?

The philosophical justification for the creation of the inter-state complaint procedure in modern international human rights law may be twofold: First is the principle of “pacta sunt servanda”, which requires states to observe or perform in good faith all agreements or obligations they have entered into or undertaken under an international instrument.100 Pursuant to this principle, a state party to an international instrument which observes that another state party to the same instrument is violating its provisions can initiate action at the proper forum against the erring state party for the latter to remedy the violation(s). A second justification could be found in the emerging erga omnes status of state obligations undertaken under relevant international human rights instruments.101 In this sense, a state party’s violation of an international human rights instrument is taken as a collective harm to all other states parties, even when the personal interests of the latter have not been adversely affected. To this end, one or more of the other states parties have a duty to ensure observance of the provisions being violated and can, therefore, institute appropriate actions against the defaulting state party. On the basis of the erga omnes principle, it has been argued that international human rights norms have attained the status of jus cogens,102 which, therefore, requires every state (or at least, every state party to a given human rights instrument) to take all reasonable steps, including initiation of appropriate actions against erring fellow states, to ensure the protection of the norms.103

On face value, this procedure may appear promising to African individuals and groups. However, the reality is that the procedure is prone to a wide variety of abuses and challenges that weaken its utility as an effective means for human rights enforcement. First, although international human rights law is intended to constitute a significant challenge to the concepts of state sovereignty and non-intervention in domestic affairs, states are, by their conduct, still tenaciously inclined to these concepts in their near-sacrosanct form. This could be seen from the strong-worded entrenchment of these concepts in the constitutive treaties of most global and regional inter-state organizations.104 Consequently, states would almost always be unwilling to initiate proceedings for the judicial or quasi-judicial review of human rights records of fellow states in favour of individuals and groups. Again, with particular reference to Africa where every state is allegedly involved in one form of human rights abuse or the other, the fear of vendetta or recrimination on the part of states would certainly discourage them from activating the inter-state complaint procedure, since “he who seeks equity must do equity”.

In addition to this feared boomerang effect, trepidations as to possible deterioration of political and economic relations between the complaining state and the state complained against would induce an almost complete reluctance on the part of an African state to refer cases of alleged human rights violations to the Court against a fellow African state in favour of individuals and groups. No wonder there has been no inter-state case commenced in the African Court, which has been in operation for over ten years. No wonder also there has been only one inter-state case commenced under the African Commission’s quasi-judicial mechanism, despite almost thirty years of the Commission’s existence.105

According to Scott Leckie:106

Generally, political and economic considerations have contributed more to the reluctance among states to utilize inter-state complaint procedures. . . . Because political interests continue to color states’ views of human rights issues, and these issues are frequently subordinated to political or economic concerns, the ideal operation of the international system of human rights protection is forestalled. Contemporary state practice indicates . . . that the protection of human rights in other countries is not as important to individual states as their political and economic relations. This situation has certainly contributed to the general nonuse of the inter-state complaint procedure, and, in many of those cases where it has been used, has assisted in its politicization. . . . The confidence of a state to withstand any countercomplaint or the souring of political or economic relations with the state complained against is also relevant to its willingness to utilize an inter-state complaint procedure. The . . . factors mentioned above often form a coherent and impenetrable wall of restraint which in the long run has prohibited greater use of this method of addressing human rights violations . . .

Furthermore, as stated above, the substantive jurisdiction of the Commission only covers violations of African Charter rights. Consequently, the only cases which states can refer to the Court under the inter-state complaint procedure that originates from prior proceedings of the Commission can only be those of violations of African Charter rights. As regards violations of rights under other instruments, it is obvious that states lack the capacity to access the Court under this procedure, since such cases are not admissible before the Commission in the first place.

In view of the foregoing, the inter-state complaint procedure is an improper means of enforcement of the substantive rights of individuals and groups under the African regional human rights system. It is never a good substitute for the unrestrained access denied individuals and groups to the system’s judicial mechanism. The ACtHPR Protocol should, therefore, be amended to include automatic and unrestrained access for individuals and groups to the Court’s judicial mechanism.

3.2.3.3 The State Party Against Which the Complaint had been Lodged at the Commission

The ACtHPR Protocol further provides that one of the entities given automatic direct access to the African Court is the State Party against which the complaint had been lodged at the Commission.107 Under this provision, the case to be referred to the Court by such a state party is likely to arise from either of two situations. The first is where a state party respondent in an inter-state complaint initiated under the Commission’s quasi-judicial mechanism subsequently submits the case to the Court’s judicial mechanism. The second may be where a respondent state party in an individual communication filed at the Commission decides to refer the case to the Court.

The practical result sought to be achieved by this provision is very difficult to discern, and its intended utility to individuals and groups is almost impossible to see. Looking at it from one angle, one may ask the following questions: In what capacity is the state party against which the complaint had been lodged at the Commission going to commence the case at the Court – as the applicant or respondent? Is it referring the case to the Court in order to continue defending itself against the allegations raised against it at the Commission, or to champion the cause of the individual and/or group rights violation victims? If the latter, against whom – itself? Is the case going to be an entirely new one before the Court, a continuation of the proceedings already commenced at the Commission, or an appeal?

In trying to imagine a justification for this provision, Dan Juma108 is of the opinion that:

What appears is that this provision may also be used as a basis for appeal from a decision of the Commission. If this is the case, then the provision defies the principle of equality of arms, as there is no similar provision for appeal by the individual who had triggered the complaint at the Commission, unless the State party concerned has made a declaration accepting the Court’s competence to receive direct individual complaints.

I would disagree with Juma that this provision may form a basis of appeal from a decision of the Commission to the Court. This is because the Protocol has merely created a relationship of concurrency between the Commission and the Court. Each is meant to complement the protective works of the other, and neither is placed in a position of superiority over the other. Thus, an appeal cannot validly lie from the decision of one to the other without an express provision to that effect. However, it is right to argue that the provision is so phrased as to defy the principle of equality of arms by granting the respondent state at the Commission automatic direct access to the Court, while denying it to the individual or group that initiated the case at the Commission. Obviously, this amounts to a breach of the individual or group’s right to a fair hearing, contrary to the audi alteram partem principle. The fair hearing rule and the rule of impartiality or the rule against bias form the twin pillars of natural justice,109 a grounding concept that underlies the provisions of all principal human rights treaties, universal and regional.110

Since the individual or group that initiated the original case at the Commission, which case the respondent state subsequently refers to the Court, is denied access to the same Court to contradict the state’s case, the Court may likely be put in a position to determine the case solely on the state’s evidence without opportunity to hear the individual or group victim(s). This is contrary to the pursuit of justice. As Lord Denning put it in Kanda v Government of the Federation of Malaya:111

If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence is given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them . . . it follows, of course, that the Judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.112

Another problem arising from the provision of Article 5(1)(c) of the Protocol is the unlikely willingness of the respondent state at the Commission to refer the case to the Court. It is known that states jealously guard their territorial sovereignty and are unwilling to submit their internal affairs (including their human rights records) to external review. Thus, expecting respondent states to take cases from the Commission to the Court is to ask them to embark on self-exposure, self-reporting and self-incrimination, which they would not do.113

3.2.3.4 The State Party Whose Citizen is a Victim of Human Rights Violation

Article 5(1)(d) of the ACtHPR Protocol confers on the State Party whose citizen is a victim of human rights violation an automatic access to the Court. An examination of this provision reveals that it does two things: (1) introduces a modified and limited version of the inter-state complaint procedure, and (2) imports the diplomatic protection procedure into the judicial enforcement mechanism of the African regional human rights system.

The inter-state complaint procedure introduced by this sub-paragraph is available to a state party to the Protocol the human rights of whose national(s) have been allegedly violated by another state party. Here, the home state of the national(s) initiates a judicial action before the Court, not necessarily through the Commission, against the erring state party for the enforcement of the violated human rights of the former state party’s national(s). Despite the special nature of this version of inter-state complaint procedure (special because of the close affinity of nationality between the state commencing the action and the individual or group victim(s)), it seems that there is no real difference in utility between it and the general inter-state complaint procedure discussed above. Thus, the same defects discussed above apply with equal force to these two versions of the inter-state complaint procedure.

Also, in commencing a case before the Court pursuant to this provision, the national state of the victim(s) is, inter alia, trying to establish the erring state’s international responsibility (assumed under the human rights treaty in question) through diplomatic intervention or interposition in the case of its (national state’s) citizen(s). This leads to a brief examination of the concept of diplomatic protection in international law and the extent to which it can compensate for the automatic direct access to the Court’s mechanism denied African individuals and groups.

The concept of diplomatic protection maintains that once the national state takes up the claim of its injured nationals, the claim becomes that of the national state (though for the benefit of the said nationals), thus giving rise to an international case between the national state and the injuring state.114 In the Mavrommatis Palestine Concessions case,115 the defunct Permanent Court of International Justice (pcij) put the position as follows:

By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the . . . dispute originates in an injury to a private interest, which in point of fact is the case in many international disputes, is irrelevant . . . . Once a state has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the state is sole claimant.

Apparently, this procedure for human rights enforcement appears attractive. However, it raises, at least, two questions: (1) Do states really explore this procedure in international law/ international human rights law? (2) Does this procedure truly stand to benefit individuals and groups?

On the first question, the legal position is that although nationals of a state have the right to request their national state to consider granting them diplomatic protection in respect of internationally wrongful acts of a foreign state affecting them, the national state is not bound to grant such a request.116 This is because there is no legal obligation in international law for states to provide diplomatic protection for their nationals. In Kaunda & Ors v President of the Republic of South Africa & Ors,117 the South African Constitutional Court held:

. . . Currently . . . diplomatic protection is not recognized by international law as a human right and cannot be enforced as such. To do so may give rise to more problems than it would solve. Diplomatic protection remains the prerogative of the state to be exercised at its discretion . . . . the applicant cannot base their claims on customary international law . . . A right to diplomatic protection is not referred to in the Universal Declaration of Human Rights, nor is it a right contained in any . . . international human rights treaties . . ., such as the African Charter on Human and Peoples’ Rights or the International Covenant on Civil and Political Rights . . .118

As a state’s exercise of diplomatic protection for its nationals is likely to affect its international relations with the erring foreign state, it is certain that the limiting political and economic considerations discussed above under the inter-state complaint procedure would also apply here to the diplomatic protection procedure. Consequently, this procedure does not stand to truly benefit African individuals and groups.

3.2.3.5 African Inter-Governmental Organizations

For clarity purposes, an inter-governmental organization or international governmental organization (“igo”) is an organization composed primarily of sovereign states, or sovereign states and other inter-governmental organizations. It is often established by an international agreement that acts as its constitutive or enabling instrument.119 African examples include the African Union, the African Development Bank, and the Economic Community of West African States.

Article 5(1)(e) of the ACtHPR Protocol, which confers automatic direct access to the Court on African Inter-governmental Organizations, increases the number of entities with unlimited locus standi before the Court to enforce the human rights of African individuals and groups. In view of the proliferation of igos at the regional and sub-regional levels in Africa, conferment of direct access to the Court’s mechanism on these igos may seem to increase the hope of better representation for individual and group rights violation victims in Africa. This is because igos, unlike states, may not be influenced in their decisions to take victims’ cases to the Court by considerations of likely deterioration in international relations.

But this high hope may not hold up to reality. The igos, having been formed by states, are made up of representatives of the states’ interests and will. These representatives are ever conscious that their acts or utterances should not jeopardize international relations between their respective sending states and the erring state against which the igo may commence a human rights enforcement action before the Court. Furthermore, although, in principle, igos are independent of the states that form them, in practice, they are a glorified alter ego of their member states and would hardly act against their interests. More so when the cases the igos wish to refer to the Court may have the effect of reviewing or exposing the human rights records of their most powerful member states from which their major sponsorship and operational directives usually come. To this extent, again, the use of the igos does not stand to favour African individuals and groups and is, therefore, improper.120

The foregoing analysis shows that when local remedies fail or are not existent, African individuals and groups do not enjoy effective access to the binding judicial mechanism of the African regional human rights system for the enforcement of their human and peoples’ rights at the regional level. This, when taken together with their equally ineffective access to the system’s quasi-judicial mechanism previously analysed, reveals that the level of access given individuals and groups to the system’s justice mechanisms is insufficient to realize their substantive rights against African states. Thus, justice continues to elude them under the system, a situation that calls for reforms.

4 Conclusion

The African regional human rights system provides an extensive framework of substantive human and peoples’ rights for African individuals and groups, including civil and political rights, economic, social and cultural rights, and group, collective, or solidarity rights. However, due to some factors, access for the individuals and groups to the system’s justice mechanisms for enforcing the rights, upon their violation by African states, remains insufficient and substantially ineffective. These factors include the non-binding nature of the African Commission’s quasi-judicial decisions, the limited locus standi of individuals and groups before the African Court, and political influence from African states. In order to enhance access for individuals and groups to the mechanisms, and therefore, to justice, certain reforms are necessary. These include conferring on individuals and groups unimpeded locus standi before the African Court, making the African Commission a full-time institution, and ensuring the Commission and Court’s independence from political influence by African states.

Acknowledgements

This article is a modified version of my research paper written under the supervision of Professor Phillip Saunders at the Schulich School of Law, Dalhousie University. I am grateful to Professor Saunders for his painstaking supervision.

1 Charter of the Organization of African Unity, 1963, 479 unts 39 (“oau Charter”), Article ii(1)(e).

2 The Council of Europe (coe) and the Organization of American States (oas).

3 See the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, ets 5 (“European Convention”); and, American Convention on Human Rights, 1969, 1144 unts 123 (“American Convention”).

4 On 11 July 2000 the oau adopted the Constitutive Act of the African Union, 2000, oau Doc cab/leg/23.15 (“au Act”). This Act came into force on 26 May 2001. Article 33 of the au Act changed the oau’s name to the African Union (au) and repealed the oau Charter, supra note 1. Also, Articles 5–6 of the au Act renamed the oau Assembly of Heads of State and Government the au Assembly. Thus, in this article, any original reference in any instrument or material to the former names would now appear in the new names. The au Act inherits the oau’s human rights agenda by providing that part of the au’s objectives is to “promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments.” See au Act, supra note 4, Article 3(h).

5 For example, the Universal Declaration of Human Rights, ga Res 217A (iii), un gaor, 3rd Sess, un Doc A/810 (10 December 1948); International Covenant on Civil and Political Rights, 1966, 999 unts 171 (“iccpr”); International Covenant on Economic, Social and Cultural Rights, 1966, 993 unts 3 (“icescr”); Convention on the Elimination of All Forms of Racial Discrimination, 1966, 660 unts 195; Convention on the Elimination of All Forms of Discrimination against Women, 1979, 1249 unts 13 (“cedaw”); un Convention on the Rights of the Child, 1989, 1577 unts 3; and un Convention Relating to the Status of Refugees, 1951, 189 unts 150.

6 1981, oau Doc cab/leg/67/3 rev 5; (1982) 21 ilm 58.

7 1969, 1001 unts 45.

8 1990, oau Doc cab/leg/24.9/49.

9 2003, au Doc cab/leg/66.6.

11 For explanation of these classes of rights, see D. Harris, Cases and Materials on International Law, 1st South Asian edn (London: Thomson Reuters, 2011) at 536. See also M.N. Shaw, International Law, 6th edn (Cambridge: Cambridge University Press, 2008), at pp. 268–269.

12 See the African Charter, supra note 6, Article 30.

13 See the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, 1998, oau Doc oau/leg/exp/afchpr/prot (iii) (“African Court Protocol” or “ACtHPR Protocol”), Article 1.

14 The African Charter, supra note 6, Part I.

15 For example, the European Convention, supra note 3 and the American Convention, supra note 3.

16 African Charter, supra note 6, Articles 19–24.

17 Supra note 7.

18 A detailed meaning of “refugee” is provided by Article i(1) and i(2) of the Convention.

19 African Refugee Convention, supra note 7, Article ii(3).

20 Ibid., Article v.

21 Ibid., Article iv.

22 Ibid., Article vi.

23 Ibid., Articles ii(1), (2), (4)–(6); iv; v and vi.

24 Supra note 8.

25 Ibid., Articles 2–30.

26 Supra note 6.

27 Supra note 9.

28 Ibid., Articles 3, 4, 6, 8–10 and 12.

29 Ibid., Articles 13–21.

30 Ibid., Articles 2, 5 and 11.

31 Ibid., Articles 22–25.

32 Supra note 10.

33 Ibid., preamble.

34 Ibid., Articles 1–28.

35 The African Charter, supra note 6, Articles 55, 56 and 58.

36 Supra note 8, Article 32.

37 Ibid., Articles 42(c), 44 and 45.

38 Supra note 6.

39 Ibid., Articles 57–58.

40 See, e.g., Achuthan & Anor (On behalf of Banda & Ors) v Malawi (2000) ahrlr 143 (achpr 1994); Abubakar v Ghana (2000) ahrlr 124 (achpr 1996); Civil Liberties Organization v Nigeria (2000) ahrlr 188 (achpr 1995); Civil Liberties Organization v Nigeria (2000) ahrlr 243 (achpr 1999); Ouko v Kenya (2000) ahrlr 135 (achpr 2000); Modise v Botswana (2000) ahlr 30 (achpr 2000); Zegveld & Anor v Eritrea (2003) ahrlr 84 (achpr 2003).

41 (2006) ahrlr 80 (achpr 2006).

42 (2008) ahrlr 93 (achpr 2008).

43 dcr Decree 019 of 23 August 1997. See Human Rights Watch, ‘Congo Conducting Mass Executions’, available online at http://www.hrw.org/legacy/press/2000/02/drc0210.htm.

44 See also Shumba v Zimbabwe, Comm No 288/2004 (achpr, 2 May 2012) (unreported); Gebre-Sellaise & Anor (on behalf of former Dergue officials) v Ethiopia, Comm No 301/2005 (achpr, 7 November 2011) (unreported); Egyptian Initiative for Personal Rights & Anor v Egypt, Comm No 323/2006 (achpr, 16 December 2011) (unreported).

45 G.M. Wachira, ‘African Court on Human and Peoples’ Rights: Ten Years On and Still No Justice’, Minority Rights Group International Report, September 2008, at p. 9.

46 See, e.g., L. Juma, ‘Protection of Development-induced Internally Displaced Persons under the African Charter: The Case of the Endorois Community of Northern Kenya’, 46:2 Comparative and International Law Journal of Southern Africa (2013), 211–233, at 231–232.

47 (2000) ahrlr 212 (achpr 1998).

48 Wachira, op. cit., note 45 at 11.

49 Rules of Procedure of the African Commission on Human and Peoples’ Rights, 2010, available online at http://www.achpr.org/files/instruments/rules-of-procedure-2010/rules_of_procedure_2010_en.pdf (“achpr Rules”), rule 26.

50 See Zimbabwe Lawyers for Human Rights (zlhr), “zlhr Concern Over Delay in Cases – achpr”, available online at http://www.swradioafrica.com/pages/zlhr150509.html.

51 Comm No 313/05 (achpr, 26 May 2010) (unreported).

52 Comm No 302/05 (achpr, 18 October 2013) (unreported).

53 Comm No 295/04 (achpr, 12 October 2013) (unreported).

54 Supra note 6.

55 Supra note 13. This Protocol came into force on 25 January 2004.

56 Ibid., preamble and Articles 2 and 8.

57 Ibid., Article 3(1).

58 The aucj was created under Article 18 of the au Constitutive Act, supra as the principal judicial organ of the au but without a human rights jurisdiction. Its enabling legal instrument is the Protocol of the Court of Justice of the African Union, 2003, Assembly/au/Dec.20(ii)-Doc.ex/cl/59(iii) (“aucj Protocol”).

59 See generally, D. Juma, ‘Lost (or Found) in Transition? The Anatomy of the New African Court of Justice and Human Rights’, 13 Max Planck Yearbook of United Nations Law (2009), 267–306.

60 2008, Assembly/au/Dec.196(xi).

61 Ibid.

62 Supra note 58.

63 Supra note 13.

64 Ibid., Article 5(2).

65 Emphasis added.

66 This regime of very limited or no access for individuals and groups to the African system’s judicial mechanism has, unfortunately, been repeated in the enabling legal instruments of the yet-to-come-into-operation African Court of Justice and Human Rights (acjhr). See the acjhr Protocol, supra note 60, Article 8(3) and the acjhr Statute, supra note 61, Articles 29 and 30.

67 Appl No 004/2012, Decision (ACtHPR, 30 March 2012) (unreported).

68 Supra note 6.

69 Supra note 8.

70 Supra note 5.

71 Appl No 007/2012, Decision (ACtHPR, 26 June 2012) (unreported).

72 Appl No 005/2012, Decision (ACtHPR, 30 March 2012) (unreported). See also Alexandre v Cameroon and Nigeria, Appl No 008/2011, Decision (ACtHPR, 23 September 2011) (unreported); Ababou v Algeria, Appl No 002/2011, Decision (ACtHPR, 16 June 2011) (unreported); Amare & Anor v Mozambique and Mozambique Airlines, Appl No 005/2011, Decision (ACtHPR, 16 June 2011) (unreported).

73 Appl No 001/2008, Judgment (ACtHPR, 15 December 2009) (unreported).

74 D. Juma, ‘Access to the African Court on Human and Peoples’ Rights: A Case of a Poacher Turned Gamekeeper’, 4:2 Essex Human Rights Review (2007), 1–21, at 3.

75 (Judgment, Merits), Appl No 5029/71 (A/28), 34; (1979–80) 2 ehrr 214; ihrl 19 (echr 1978).

76 Emphasis added.

77 See generally R. Murray, ‘A Comparison Between the African and European Courts of Human Rights’, 2 African Human Rights Law Journal (2002), 195–222 at 211–217.

78 B. Stephens, ‘Individuals Enforcing International Law: The Comparative and Historical Context’, 52 De Paul Law Review (2002), 433–473, at 471–472.

79 Supra note 3.

80 ACtHPR Protocol, supra note 13, Article 5.

81 So far, seven African states (Tanzania, Rwanda, Mali, Malawi, Ghana, Burkina Faso and Cote d’Ivoire) have made such declarations. See A. Shattock, ‘African Court on Human and Peoples’ Rights: Cote d’Ivoire Deposits Article 34(6) Declaration’, 9 Bedford Row International (20 September 2013), available online at 9bri.com/African-court-on-human-and-peoples-rights-cote-divoire-deposits-article-346-declaration/. See also achpr Resolution 226: Resolution on the Ratification of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, available online at http://www.achpr.org/sessions/52nd/resolutions/226/.

83 Ibid., Articles 44(2)–(3) and 45(1).

84 Supra note 3.

85 Supra note 13, Article 5.

86 The African Commission; the State Party which had lodged a complaint to the Commission; the State Party against which the complaint has been lodged at the Commission; the State Party whose citizen is a victim of human rights violation; and African Intergovernmental Organizations.

87 The former European Commission of Human Rights, established by former Article 19 of the European Convention, supra note 3 (i.e., until the Commission was abolished by the Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restraining the control machinery established thereby, 1994, ets No 155, which came into force on 1 November 1998 and forms an integral part of the Convention; the Inter-American Commission of Human Rights, established by the American Convention, supra note 3 Article 33(a); and, the African Commission on Human and Peoples’ Rights, established under the African Charter, supra note 6, Article 30.

88 See D. Neacsu, ‘European Human Rights System’, available online at http://www.library.law.columbia.ed u/guides/European_Human_Rights_Stystem.

89 Supra note 6, Articles 55 and 58.

90 See also Juma, op. cit., note 74, at 8.

91 See also Wachira, op. cit., note 45 at 15.

92 achpr Rules, supra note 49, rule 26.

93 Ibid.

94 The African Charter, supra note 6, Article 45(2).

95 Supra note 13, Article 3(1).

96 For example, the African Refugees Convention, supra note 7; African Women’s Rights Protocol, supra note 9; African Child Rights Charter, supra note 8; iccpr, supra note 5; cedaw, supra note 5; and, un Child Rights Convention, supra note 5.

97 See Bishopsgate Motor Finance Corn Ltd v Transport Brakes Ltd (1949) 1 kb 322; (1949) 1 All er 37.

98 See also Juma, op. cit., note 74 at 8–9.

99 For example, the iccpr, supra note 5, Article 41; un Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, 1465 unts 85, Articles 21–22; cedaw, supra note 5, Articles 11–14; European Convention, supra note 3, Articles 24–25; American Convention, supra note 3, Articles 44–45; and, African Charter, supra note 6, Article 49.

100 See the Vienna Convention on the Law of Treaties, 1969, 1155 unts 331 (“Vienna Convention”), Article 26.

101 See also Juma, op. cit., note 74 at 10.

102 Jus cogens means a peremptory norm of general international law accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. See Vienna Convention, supra note 100, Article 53.

103 See, e.g., L.M. Caplan, ‘State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory’, 97 American Journal of International Law (2003), 741–781; A. Bianchi, ‘Human Rights and the Magic of Jus Cogens’, 19 European Journal of International Law (2008), 492–508; P. Zenovic, ‘Human Rights Enforcement Via Peremptory Norms – a Challenge to State Sovereignty’, rgsl Research Paper, No. 6 (2012), available online at http://www.rgsl.edu.lv/uploads/files/RP_6_Zenovic_final.pdf.

104 For example, Charter of the United Nations, 1945, 1 unts xvi (“un Charter”), Article 2(1), (4) and (7); au Act, supra note 4, Article 4(a), (b) and (g); and Charter of the Organization of American States, 1948, 119 unts 3 (“oas Charter”), Article 3(e).

105 Democratic Republic of Congo v Burundi, Rwanda & Uganda (2004) ahrlr 19 (achpr 2003).

106 S. Leckie, ‘The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking?’, 10:2 Human Rights Quarterly (1988), 249–303, at 253–254.

107 African Court Protocol, supra note 13, Article 5(1)(c).

108 Juma, op. cit., note 74 at 12.

109 See G.A. Flick, Natural Justice: Principles and Practical Application, 2nd edn (Sydney, nsw: Buttherworths, 1984) at 26. See also D.O. Odeleye, ‘The Doctrine of Natural Justice under the Civil and Military Administrations in Nigeria’, 6 Journal of Politics and Law (2013), 231–244; Ridge v Baldwin [1964] ac 40.

110 iccpr, supra note 5, Article 14; European Convention, supra note 3, Article 6; American Convention, supra note 3, Article 8; and, African Charter, supra note 6, Article 7.

111 [1962] ac322; [1962] ukpc 2; [1962] 2wlr 1153.

112 Emphasis added.

113 See, e.g., Wachira, op. cit., note 45 at 20. See also, I.A. Badawi El Sheikh, ‘Draft Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights: Introductory Note’, 9 African Journal of International and Comparative Law (1997), 943–952, at 947.

114 See Case Concerning the Barcelona Traction, Light and Power Company Limited (Second Phase) (Belgium v Spain) (1970) icj Reps 3.

115 (Greece v uk), 1924 pcij (Ser B) No 3 (Aug 30), paras 12–13. See also International Law Commission’s Draft Articles on Diplomatic Protection, 2006, ga Off. Rec., 61st Session, Suppl. No. 10 (A/61/10), Article 1; and Shaw, op. cit., note 11 at 808.

116 See, e.g., Van Zyl & Ors v The Government of the Republic of South Africa & Ors (170/06) [2007] zasca 109; [2007] sca 109 (rsa); [2008] 1 All sa 102 (sca); 2008 (3) sa 294 (sca).

117 (cct 23/04) [2004] zacc 5, paras 29 and 34; 2005 (4) sa 235 (cc); 2004 (10) bclr 1009 (cc).

118 See also A.M.H. Vermeer-Kunzli, The Protection of Individuals by Means of Diplomatic Protection: Diplomatic Protection as a Human Rights Instrument (Ph.D. Thesis, Leiden University Faculty of Law, Department of International Law, Leiden, 2007) (unpublished) at pp. 175–179.

119 See Union of International Associations, “What is an Intergovernmental Organization (igo)?”, available online at http://www.uia.org/faq/yb3.

120 See also Juma, op. cit., note 74 at 14.

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    0 2006available online at http://www.au.int/en/sites/default/files/AFRICAN_YOUTH_CHARTER.pdf

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    1 (2006) ahrlr 80 (achpr 2006).

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    2 (2008) ahrlr 93 (achpr 2008).

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    7 (2000) ahrlr 212 (achpr 1998).

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    0 2008Assembly/au/Dec.196(xi).

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    2 2013available online at http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp.

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Access to Justice Mechanisms for Individuals and Groups under the African Regional Human Rights System: An Appraisal

in African Journal of Legal Studies

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References

1

0 2006available online at http://www.au.int/en/sites/default/files/AFRICAN_YOUTH_CHARTER.pdf

4

1 (2006) ahrlr 80 (achpr 2006).

4

2 (2008) ahrlr 93 (achpr 2008).

4

7 (2000) ahrlr 212 (achpr 1998).

6

0 2008Assembly/au/Dec.196(xi).

8

2 2013available online at http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp.

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