ESTABLISHMENT OF THE COURT

On 9 June 1998, African States meeting in Burkina Faso created the African Court by adopting the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. The Protocol came into force on 25 January 2004 after it was ratified by more than 15 countries.

It took a few years before the African Court became fully functional. The African Court is based in Arusha, Tanzania and is composed of 11 judges from all over the continent. The first judges were appointed in 2006 and the Court was finally able to receive its first complaints in 2010.

The Court’s mission is to protect, promote and defend human rights enshrined in the African Charter on Human and Peoples’ Rights, the main human rights instrument on the African continent. It does so by interpreting the provisions of the Charter and by judging African States which have allegedly violated these rights.

As of March 2023, 34 States out of the 55 African Union Member States are States Parties to the Protocol establishing the Court.

MANDATE OF THE COURT

The African Court carries out its mission to protect, promote and defend human rights by interpreting and applying the African Charter on Human and Peoples’ Rights, as well as the Protocol establishing the Court and any other relevant human rights instruments ratified by the concerned State(s). This can happen in two situations.

Cases against States

The Court may receive complaints against one or several State(s) alleging that the(se) State(s) has/have violated the rights of one or several persons, or a community, or a population. When that happens, the Court will analyse the case taking into account arguments by the complainant(s), the concerned State(s) and sometimes other interveners. The Court will thereafter render a judgment explaining how and why there was, or there was not, a human rights violation. In case of violation, the Court will also order the State to take specific measures to remedy the situation, such as changing the law or paying compensation to the persons who suffered the human rights violation. This is what is called the contentious jurisdiction of the Court. [check out examples]

Advisory opinions

The Court may receive requests for advisory opinions. These requests are questions submitted to the judges on any legal matter relating to the African Charter or other relevant human rights instruments. Upon receiving such request, the Court will analyse the question and will then issue an advisory opinion to give guidance to States on how to interpret or apply the law with regards to the concerned question. Although these opinions do not target any State in particular, they may lead to practical changes with a wide impact on the continent. This is what is called the advisory role of the Court.

ACCESS TO THE COURT FOR INDIVIDUALS AND NGOs

34(6) declarations by States

For individuals and NGOs to be able to directly submit complaints to the African Court, the concerned State(s) must have allowed them to do so. The ratification of the Protocol establishing the Court does not by itself open the possibility for people to seek redress before the African Court against a State. Only other States and the African Commission would be able to bring a case against such State, which rarely happens.

However, individuals and NGOs can directly access the African Court if the concerned State makes a declaration under article 34(6) allowing such direct access in addition to ratifying the Protocol establishing the Court.

As of March 2023, only 8 States out of the 34 States which have ratified the Protocol (and out of the 55 African Union member states) have deposited a “34(6) declaration” allowing individuals and NGOs to bring complaints to the Court: Burkina Faso, Gambia, Ghana, Guinea-Bissau, Mali, Malawi, Niger and Tunisia.

ACCESS TO THE COURT FOR INDIVIDUALS AND NGOs

34(6) declarations by States

For individuals and NGOs to be able to directly submit complaints to the African Court, the concerned State(s) must have allowed them to do so. The ratification of the Protocol establishing the Court does not by itself open the possibility for people to seek redress before the African Court against a State. Only other States and the African Commission would be able to bring a case against such State, which rarely happens.

However, individuals and NGOs can directly access the African Court if the concerned State makes a declaration under article 34(6) allowing such direct access in addition to ratifying the Protocol establishing the Court.

As of March 2023, only 8 States out of the 34 States which have ratified the Protocol (and out of the 55 African Union member states) have deposited a “34(6) declaration” allowing individuals and NGOs to bring complaints to the Court: Burkina Faso, Gambia, Ghana, Guinea-Bissau, Mali, Malawi, Niger and Tunisia.

HOW TO SUBMIT A COMPLAINT

Importantly, the individual or the NGO who wishes to go before the African Court must ensure that they have already exhausted local remedies. Indeed, the African Court is a court of last resort. This means that they must first try to get justice before the courts of their own country, including appealing judgments and going all the way up to the highest national court when it is possible. It is only if they believe that their national courts failed to address the injustice they suffered that they can access the African Court.

Other admissibility requirements are laid out in article 56 of the African Charter. In short, the complaint must:

• indicate who is the complainant (even if they request anonymity)
• be submitted within a reasonable delay after exhaustion of remedies before national courts
• not be written in “disparaging or insulting language”
• not be based exclusively on news from the mass media
• not be already settled by another international court

FUNCTIONING OF THE COURT

Basic information

The Court meets at least four times a year. They are called the ordinary sessions of the Court and they are usually held in March, June, September and December. Each session lasts for about 4 weeks. During these sessions, judges discuss arguments presented to them, sometimes they convene hearings to hear additional arguments orally, and they deliberate. Each session concludes with the delivery of judgments in several cases.

The Court can decide to meet more often, in sessions which are referred to as extraordinary sessions. These would be held for instance when there is an urgent matter to decide on or when there is a particular backlog of cases.

The number of complaints received and dealt with by the Court varies from year to year. As of March 2023, according to the Court, it had received 330 complaints, among which 172 have been decided and 158 are still pending, and 15 requests for advisory opinions which have all been determined. Among the 172 finalized cases, half of them were actually dismissed by the judges because the complaints did not fulfil the admissibility requirements and half of them were cases examined on their merits by the Court. Overall, the Court found States responsible for human rights violations in over 60 cases, on issues such as the right to a fair trial, the right to freedom of expression, the right not to be discriminated against, the right not to be treated in an inhumane or degrading manner, the right to participate in the political life of one’s country, the right to work, and so on. [check out examples]

Challenges facing the Court

Although a majority of States has ratified the Protocol establishing the African Court, the low number of States which have also deposited the 34(6) declaration allowing individuals and NGOs to directly access the Court is a major challenge. It considerably limits the jurisdiction of the Court and therefore its ability to efficiently protect human rights everywhere on the continent. As of March 2023, only 8 States out of the 34 States parties to the Protocol (and out of the 55 African Union member states) had deposited a “34(6) declaration” allowing individuals and NGOs to bring complaints to the Court: Burkina Faso, Gambia, Ghana, Guinea-Bissau, Mali, Malawi, Niger and Tunisia.

Another challenge is the low implementation of the African Court’s decisions. Unfortunately, in many situations, States have delayed putting in place measures that were ordered by the Court to remedy human rights violations. The African Union political bodies have not been proactive enough in ensuring that Court’s judgments, binding in nature, are promptly followed by State actions.

Some States unfortunately went as far as withdrawing their 34(6) declarations in reaction to Court’s decisions that displeased them. Rwanda withdrew its 34(6) declaration in 2016, Tanzania in 2019, and Benin and Cote d’Ivoire in 2020. These attacks to the Court itself were real steps backwards for the protection of human rights on the continent and for the concerned people who were deprived of a justice avenue that they had already been granted. Hopefully the future trend will on the contrary show more and more States valuing the building of a strong African human rights system.