Delegates from Africa’s principal judicial and quasi-judicial human rights institutions met in early October 2010 in Arusha, Tanzania to reflect on the ongoing evolution of mechanisms for the protection and promotion of human rights on the continent. Participants included the continental bodies — the African Court on Human and Peoples’ Rights and African Commission on Human and Peoples’ Rights — as well as some of the various sub-regional bodies authorized to adjudicate human rights issues, such as the East African Court of Justice (EACJ), the Tribunal of the Southern African Development Community (SADC), and the Court of Justice of the Economic Community of West African States (ECOWAS).
The first of its kind in Africa, the Colloquium of African Human Rights Courts provided a crucial and heretofore absent forum in which the participants could deliberate and air common concerns. In their Final Communiqué, the participants agreed, among other things, to hold colloquia every two years, evidencing that the various institutions have prioritized cooperative dialogue on procedural and substantive matters of joint interest. This commitment to close relations may assuage realistic fears that these human rights courts will come into conflict over jurisdiction or the interpretation of common human rights instruments, such as the African Charter on Human and Peoples’ Rights. It suggests these institutions recognize that a unified, coherent jurisprudence is integral to the success of the human rights imperative in Africa.
Of fundamental importance is the relationship between the two continental bodies, the African Commission and the African Court. As the preamble to its Protocol indicates, the African Court was founded to “complement and reinforce the functions of the African Commission” in furtherance of the Commission’s three mandates to promote, protect, and interpret human rights. The Protocol establishes in Article 5.1 the entities that may bring cases to the African Court, the first of which is the African Commission. While there are other possible entities — states, NGOs, and individuals — the Commission will likely be the main source of referrals in this formative stage of the Court’s evolution. States are not likely to bring cases against other states or against themselves, and NGOs and individuals can only have access to the Court if their home state has filed a special declaration granting permission. To date, only four states have issued such a declaration. Further emphasizing the Commission’s role as a gate-keeper, when cases are brought directly by NGOs or individuals, Article 6.1 of the Protocol outlines the Court’s right to request the opinion of the Commission on preliminary questions of admissibility. Given the complementary and cooperative roles played by the two bodies, their respective rules of procedure ought to be harmonized to improve efficient and consistent outcomes for petitioners.
The relationship of the African Court to the various sub-regional courts also requires careful consideration. While their existence as able adjudicators and symbols of regional unity is integral to the success of human rights initiatives in Africa, the sub-regional courts share a mandate similar to that of the African Court, and there is a resulting risk of overlapping subject matter jurisdiction. Discussions at the Colloquium primarily aimed to diminish concerns that these courts might issue differing or even conflicting interpretations of the relevant human rights instruments. The Danish Institute for Human Rights has suggested granting the African Court appellate authority to hear and interpret questions of law in cases adjudicated by the sub-regional bodies. The courts might also explore an arrangement whereby the sub-regional courts are permitted to refer questions of interpretation to the African Court, which would then issue an advisory opinion.
Given the complexity of Africa’s evolving human rights regime, achieving harmony among the various institutions will be a considerable and protracted undertaking. There is hope that the Colloquium has both symbolically and substantively laid the foundation for this effort, and that the agreement to hold future Colloquia marks the beginning of an enduring commitment to exchange agendas and working methods, experiences, and views of common issues. As the network evolves, however, the obstacle will likely not arise from a lack of will so much as a lack of funding and resources sufficient, for example, to facilitate in-person meetings or sustain an efficient, technologically modern communication network. The Commission, for example, is highly dependent on support from various donors for its operations, and those donations are frequently earmarked for specific projects. Within this context, cooperation must not only be effective, but must also be able to adjust to whatever funds and resources are available.