One of the most substantive developments in human rights and international humanitarian law since the mid-twentieth century has been the establishment of regional human rights bodies. As of 2017, three regional human rights court systems adjudicate human rights complaints brought against participating State Parties: the European Court of Human Rights; the Inter-American Court of Human Rights; and the newest regional court system, the African Court of Human and People’s Rights (AfCHPR or the Court).
The creation of the AfCHPR was a major step forward for human rights law on the African continent, but the Court’s first decade has not been without controversy.The Member States of the African Union established the AfCHPR to complement the functions of the African Commission on Human and People’s Rights (the Commission). The Commission and the Court are responsible for “the protection of human and people’s rights; the promotion of human and people’s rights; and the interpretation of the African Charter.” Both the Commission and the Court reinforce the African Charter on Human and People’s Rights (the Banjul Charter), which is the primary international human rights instrument for the African continent.
Article One of the Protocol to the Banjul Charter provides for the establishment of the AfCHPR. Article Three of the Protocol grants the Court jurisdiction over “all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol, and any other relevant Human Rights instrument ratified by the States Concerned.” The Member States to the Organization of African Unity, the regional organization that preceded the African Union, adopted the Protocol in 1998. The Protocol did not enter into force and establish the Court until January 25th, 2004.
Thirty of the fifty-four African Union Member States have ratified the Protocol and acknowledged the Court. Nations that ratify the Protocol only accept the Court’s jurisdiction with respect to human rights complaints or applications filed by the Commission, State Parties to the Protocol, or African Inter-governmental Organizations.
The Court has two types of jurisdiction over State Parties: advisory and contentious. Contentious jurisdiction under Article Three of the Protocol grants the Court the ability to “deal with all cases and disputes submitted to it regarding the interpretation and application of the Charter, the Protocol and any other relevant human rights instrument ratified by the concerned states.” These are traditional adversarial cases where a qualifying party brings a human rights complaint against a State Party, and the Court then investigates and conducts hearings on that claim.
The Court also has the power to issue binding decisions that petitioners and State Parties must follow pursuant to the Court’s advisory jurisdiction under Article Four of the Protocol. At the request of an African Union Member State, any organ of the African Union, or any African organization recognized by the African Union, the Court can provide an advisory opinion on any human rights related legal matter not already before the Commission or the Court.
Of the thirty countries that are party to the Protocol, only seven have formally declared that they accept the Court’s jurisdiction over claims brought by individual citizens and non-government organizations (NGOs) pursuant to Protocol Article Five. Those seven countries are Benin, Burkina Faso, Cote d’Ivoire, Ghana, Mali, Malawi, and Tanzania. When private individuals brought a petition against Senegal, a country that had not formally declared its acceptance of the Court’s jurisdiction over the claims of individuals, the Court ruled that it did not have jurisdiction. That case, Michelot Yogogombaye v. Republic of Senegal, was the first that the Court decided, on December 15th, 2009.
The Court’s system, which allows Member States to “opt in” for individual citizens to file human rights complaints, is in stark contrast to the two other regional human rights courts in the world. The European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACHR) both automatically have jurisdiction over individual human rights petition from citizens of Member States.
Rwanda became the first country to withdraw a declaration giving the AfCHPR jurisdiction over individual citizen claims in February of 2016; however, Rwanda is still a member of the Court. Rwanda’s withdrawal came after the AfCHPR agreed to hear the petition of Victoire Ingabire. Human rights groups allege that the Rwandan government persecuted Ingabire for being a political opposition leader. The Rwandan government denies this claim and has stated publicly that it withdrew its declaration because a Rwandan court had convicted Ingabire of genocide denial and terrorism. Rwandan authorities also claim that Ingabire is “exploiting” the AfCHPR to escape her conviction in Rwanda. The Court accepted Rwanda’s withdrawal; however, the Court ruled that under precedent from other inter-continental tribunals, notably the IACHR, a country withdrawing a declaration that gives jurisdiction over the claims of individuals needs to give the court a one year notice. Thus, Rwanda’s withdrawal does not affect cases that were pending before the withdrawal declaration, including Ingabire’s.
In order to fully provide justice, member states of the AfCHPR should commit to allowing individuals and NGOs to bring human rights cases at the Court. Criticisms that other international bodies, such as the International Criminal Court (ICC), unfairly target African nations highlight the very real need for the African continent to have its own judicial body to adjudicate human rights claims. Indeed, the first thirteen years of the AfCHPR’s existence has contributed to a generally positive trend towards autonomy and human rights accountability on the African Continent. However, the fact that the majority of the State Parties to the AfCHPR do not accept the right of private citizens and NGOs to bring cases against them is a stumbling block for justice. The Court should consider the examples of the ECtHR and the IACHR, and allow individuals from all Member States greater access to the Court. The AfCHPR should build upon the legacy of its first thirteen years and increase access to justice for all individuals living within the Court’s Member States.