I. INTRODUCTION
In 2016, the African Union (AU) celebrated not only 30 years since the entry into force of the African Charter on Human and Peoples’ Rights (African Charter),Footnote 1 marking the birth of the regional human rights system established under the auspices of its predecessor, the Organisation of African Unity (OAU), but also ten years since the African Court on Human and Peoples’ Rights (African Court) started functioning.Footnote 2 The African Court was brought into being to complement the protective mandate of the African Commission on Human and Peoples’ Rights (African Commission).Footnote 3 By providing for the possibility of judicial (and thus unequivocally binding) decisions, the Court adds an important dimension to the quasi-judicial mandate of the African Commission. As an important element of its rationale, the African Court's accessibility provides a fitting prism through which to view the progress of the Court over the first decade of its operation.
This article therefore aims to analyse access to the African Court between 2006 and 2016.Footnote 4 For the purpose of this article, the concept of ‘access’ is understood as the competence to approach a human rights system in order to (a) obtain a remedy (in a contentious case); (b) be represented as victim (personally or through a legal representative) before the Court (in contentious proceedings); (c) solicit an advisory opinion, and (d) contribute to Court proceedings as amicus curiae. Although other aspects are also undeniably relevant to access, such as the access of third party States,Footnote 5 access resulting in amicable settlement,Footnote 6 and in provisional measures,Footnote 7 the four selected facets best capture the Court's trajectory over its first decade. This article has four substantive parts. The first relates to contentious proceedings, either by way of direct or indirect access to the Court. The second discusses the legal position and emerging Court practice related to victims or their representatives being represented before the Court when the African Commission has referred a case to the Court. The third part looks at access to the Court's advisory competence. In the fourth part, the extent to which amici curiae may potentially and have in fact gained access to the Court is discussed. Each of these parts deals with the potential for, the actual extent of, and the obstacles to access. The last part of the article draws the findings together and recommends some measures to improve access to the Court.
II. CONTENTIOUS PROCEEDINGS
There are two ways in which contentious proceedings related to the merits of a case may become a matter for the Court's decision: direct access to the Court, or indirect access (via the African Commission). The (as yet unrealized) possibility of indirect access via the African Committee of Experts on the Rights and Welfare of the Child (African Children's Rights Committee) must also be considered.
A. Direct Access
In the first decade of the Court's existence, most cases reached the Court by way of individuals or NGOs directly accessing the Court after having exhausted domestic remedies.
Direct access is dependent on a State having fulfilled three cumulative conditions. First, it must be a State party to the African Charter. In 2016, all 54 African Union (AU) member States were parties to the Charter.Footnote 8 Second, the State must have ratified the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights (African Court Protocol). By the end of 2016, 30 States have done so.Footnote 9 Third, it must have made a declaration under Article 34(6) of the Court Protocol, accepting the competence of individuals and non-governmental organizations (NGOs) (enjoying observer status with the African Commission) to directly access the Court. Eight States have by 31 December 2016 made this declaration. In chronological order of depositing their declarations, they are: Burkina Faso (1998), Malawi (2008), Mali (2010), Tanzania (2010), Ghana (2011), Côte d'Ivoire (2013), Rwanda (2013) and Benin (2016). It is encouraging that seven of these declarations have been made subsequent to the Court starting its operations (in 2006) and after the first case had been submitted to it (in 2008).Footnote 10 It remains to be seen, though, if this trend would continue as the Court's substantive judgments and provisional orders start enjoying greater exposure and prominence, and more cases are submitted against those States that have already made Article 34(6) declarations.
Regrettably, on 1 March 2016, Rwanda withdrew its declaration. In a subsequent decision,Footnote 11 the Court held that this withdrawal is valid. The Court reasoned that, because making the declaration is optional, the possibility of withdrawing it should also be open to the State.Footnote 12 However, the Court further held that, although a State may unilaterally withdraw, its discretion to do so only becomes effective a year after the declaration has been deposited. The Rwandan declaration therefore only took effect on 1 March 2017. Going by the general principle of non-retroactivity of treaties,Footnote 13 this withdrawal does not affect cases already pending before the Court; and also did not prevent the submission of new cases against Rwanda until 1 March 2017.Footnote 14 The government cited as the main reason for its withdrawal that it ‘never envisaged’ that fugitives from justice would by virtue of the declaration have ‘secured the right to be heard’ by the Court.Footnote 15 Rwanda's concern related in particular to Kayumba Nyamwasa, convicted for crimes pertaining to State security and sectarianism, and Safari Stanley, convicted of genocide. They have both fled Rwanda and while exiled in South Africa, submitted a case contending that the amendment of Article 101 of the Constitution of Rwanda, which would extend the presidential term beyond its current limit, violates the African Charter.Footnote 16 However, the government's reasoning is disingenuous, as Article 34(6) does not qualify the kinds of NGOs or individuals entitled to submit cases alleging violations of the relevant human rights treaties. Also, indirect access to the African Commission always has allowed and still allows that submission by such entities or individuals against Rwanda may potentially reach the Court (albeit via the African Commission). A contributing factor to Rwanda's withdrawal may (rather) have been that the government did not foresee the submission of six cases against it, within a relatively short period, all dealing with politically sensitive matters, submitted by political opponents of the current government.Footnote 17
Even if all but one (or 88 per cent)Footnote 18 of the cases decided on their substance (admissibility and merits) up to the end of 2016 have reached the Court in this way, they constitute only a handful of cases. Seven direct-access cases have been decided on the merits: Mtikila v Tanzania;Footnote 19 Zongo v Burkina Faso;Footnote 20 Konaté v Burkina Faso;Footnote 21 Thomas v Tanzania;Footnote 22 Onyango v Tanzania;Footnote 23 Abubakari v Tanzania;Footnote 24 and Actions pour la Protection des Droits de l'Homme (APDH) v Côte d'Ivoire.Footnote 25 The Court has only taken one further merits decision, based on a referral by the African Commission after non-compliance with its provisional measure: the case of African Commission (Saif Al-Islam Kadhafi) v Libya.Footnote 26 In three other cases, the Court decided that it had jurisdiction, but declared the matter inadmissible.
This limited number of direct-access cases decided on matters of substance are principally due to the fact that during the first decade of its existence, the Court in a majority of cases found that it lacked jurisdiction—mostly owing to the respondent States not having made the required declaration under Article 34(6). In the five-year period between 2008 (when the first case was submitted to the Court) and 2012, 11 out of a total of 22 cases were submitted against States that had not become party to the Court Protocol, or that had not made this declaration. Cases failed on this basis against the following States: Algeria,Footnote 27 Cameroon,Footnote 28 Côte d'Ivoire,Footnote 29 Gabon,Footnote 30 Mozambique,Footnote 31 Nigeria,Footnote 32 Senegal,Footnote 33 South Africa (two cases),Footnote 34 SudanFootnote 35 and Tunisia.Footnote 36 In a further case, the Court found that it lacked jurisdiction because the case was submitted against the AUFootnote 37 and Morocco,Footnote 38 then a non-AU member State and thus not competent to either ratify the Court Protocol or to make an Article 34(6) declaration. While all these cases were decided on the basis of the Court’ lack of personal jurisdiction (jurisdiction ratione personae), one further case, dealing with an AU staff dispute, was decided on the basis of the lack of material jurisdiction (jurisdiction ratione materiae).Footnote 39
This data represents a rather bleak picture: no fewer than 55 per cent of the cases submitted in the first five years have been submitted manifestly without any legal basis.Footnote 40 A cursory reading of the Court Protocol and the available literature should have made it clear to applicants or their lawyers that approaching the Court directly in these cases would have no prospect of success. Either these cases were brought by lay persons without legal counsel, or on the advice of extremely uninformed or unprofessional lawyers, or the cases were submitted to draw attention to a cause, despite awareness of the weak prospects of success.Footnote 41 Regrettably, the African Court did not dismiss these misplaced attempts at accessing the Court with the disrespect they deserved, for example, through a curt letter from the Registrar indicating that the case does not meet the threshold for consideration.Footnote 42 Instead, the Court wasted valuable hours on elaborating lengthy and largely irrelevant judgments in a number of these cases—particularly in the first of this series of cases, Yogogombaye v Senegal, which took just about a year to be resolved.Footnote 43 By including all these ‘cases’ among its list of ‘finalized’ cases on its website, the Court does not separate the chaff (of baseless submissions) from the wheat (of validly submitted cases), thus obfuscating the extent of individuals meaningfully accessing the Court. The Court would do better to clarify the distinction between direct and indirect access, and to explain the relevance of Article 34(6) declarations prominently and in accessible language on its website. As far as civil society and lawyers around the continent are concerned, consistently user-friendly accessible information is likely to have a greater effect to inform the relevant public about the basics of accessing the Court than occasional ad hoc visits to selected countries.Footnote 44
Even including these baseless attempts, only 87 cases (including the seven cases decided on the merits) were submitted to the Court in respect of the eight States that have accepted direct access. The total number of directly submitted cases up to the end of 2016 was as follows:
Tanzania 71, Rwanda 6, Mali 4, Côte d'Ivoire 3, Burkina Faso 2, Malawi 1.
The relative abundance of cases against Tanzania seems to have been generated by the confluence of at least five factors, which are discussed below. Although a comprehensive link between cause and effect is not established here, the argument is that the available evidence cumulatively suggests a strong correlation between these factors and the increase of cases submitted against Tanzania. (1) Having made the Article 34(6) declaration in 2010, Tanzania is one of the earliest countries to have allowed direct access. The possibility of directly approaching the Court had by the end of 2016 been available for six years. (2) With its seat located in Arusha, Tanzania, the Court is in closer proximity to Tanzanians (living in Tanzania) than other direct-access States that are at a greater distance from its seat, with—to some extent—the exception of Rwanda. The seat's location gives more local prominence to the Court's existence, activities and insight into the possibilities it offers. As the seat for the now defunct International Criminal Tribunal for Rwanda, and the East African Court of Justice,Footnote 45 Arusha has been called the ‘Geneva of Africa’, and can lay claim to being Africa's judicial capital. These factors have contributed to raise the profile of the Court generally, and arguably also in the eyes of Tanzanians. (3) A prominent Tanzanian Judge, Judge Ramadhani, served as the Court's President from 2014 to 2016. Judge Ramadhani, whose term on the African Court stretched from 2010 to 2016, was previously the Chief Justice of Tanzania (from 2007 to 2010), and also served as a Judge on the East African Court of Justice (from 2007 to 2010). (4) Most importantly, however, is the trigger effect of decided cases, which inspired the opening of the ‘floodgates’ to similar complaints being submitted by others in the aftermath of three cases, all dealing with the fair trial rights and brought by prisoners (the Thomas case (decided in November 2015), the Onyango case (decided in March 2016), and the Abubakari case (decided in June 2016)). This led to a noticeable surge in the submission of cases. Two cases were submitted against Tanzania yearly, in 2011, 2012 and 2013; in 2015, the number of submitted cases grew to 26; and in 2016 the number jumped to 40. The 2015 and 2016 cases almost exclusively relate to fair trial rights, and are brought by inmates of prisons, often following a similar pro forma-type style in their submitted applications. (5) A factor linked to the greater knowledge and visibility of the African Court in Tanzania, generally, and among a particular category (prisoners under sentence of death), specifically, is the issuance of provisional measures in respect of a number of cases pending before the Court. In nine cases directly instituted before the Court, but by the end of 2016 still awaiting a hearing on the merits, the Court ordered that Tanzania refrain from executing the death penalty.Footnote 46 What makes these cases remarkable is that the State is required to refrain from executing the applicants in cases in which the trial court imposed the death penalty. In a society where popular and political majorities resoundingly support the death penalty, any media attention to this issue would spur much interest.
Five reasons for the relative lack of direct access cases are now considered.
1. The very existence of Article 34(6) as an impediment
In Falana v AU,Footnote 47 the Court had the opportunity to consider whether the very existence of optional direct access, as embodied in the requirement to make an Article 34(6) declaration, violates the African Charter or other human rights treaties. The applicant argued that Article 34(6)—and the failure of Nigeria to make such a declaration—violates the African Charter's provision on the right to be heard (as part of Article 7, the right to a fair trial). Put another way, the question before the Court was whether the AU can be held responsible (for having violated the Charter) by virtue of an act or omission (the adoption of the Protocol containing the provision; or the failure to make an Article 34(6) declaration) of one of its member States (Nigeria)). An ancillary question was whether the AU, as an international organization committed to uphold human rights and even to intervene in members under certain circumstances, can compel its members to take certain action (such as making an Article 34(6) declaration) or refrain from certain action (such as adopting Article 34(6) as part of its treaty regime). In the view of the majority of the Court, the answer is quite evident: on the basis that this matter was instituted against the AU,Footnote 48 which is not in its own right a State party to the Court Protocol, and cannot become one, the majority found that the Court lacked personal jurisdiction. The adoption of Article 34(6) was a decision of a majority of States; and the failure to make a declaration was a sovereign act by the Nigerian government. It seems that answer is clearly correct: as an autonomous international organisation, the AU has legal personality separate and distinct from its members.Footnote 49 The AU can only become responsible for the acts or omissions of its organs or agents. As such an entity, it did not accrue obligations, in that it is not a State party to the African Charter. On the basis that it lacked jurisdiction, the majority held that it did not have to deal with the substantive issue before it.
Coming to a different conclusion on jurisdiction, a minority of four judges postulated the attractive proposition that the optional nature of direct access deprived many Africans from recognition of their right of access to justice.Footnote 50 In the minority's view, because this right is recognized in the Charter, in other treaties and in fact is part of jus cogens, the mere act by the AU member States of imposing the requirement of Article 34(6) in the Court Protocol is a violation of this norm.
Attractive as this line of thinking may seem from a pro homine perspective, it takes one along a very shaky legal route. It disregards the role of consent as the basis of international (human rights) law. An obvious retort is that there could hardly be an internationally accepted legal obligation on AU member States to adopt a human rights treaty allowing for direct individual access to the Court, if only one such treaty (the European Convention, since 1998 allowing direct access to the European Court) exists in the world today. The only other comparable regional human rights system, the Inter-American, indeed only has a system of (optional) indirect access to its judicial institution, the Inter-American Court. An argument that emphasizes State consent finds support in the decision on Rwanda's withdrawal of its optional declaration under Article 34(6), in which the Court declared: ‘As far as unilateral acts are concerned, state sovereignty commands that states are free to commit themselves and that they retain discretion to withdraw their commitments.’Footnote 51 Ultimately, it seems that only a process of amending the Protocol, by decision of the AU Assembly of Heads of State and Government, could achieve the result the applicant (Femi Falana) desired.Footnote 52
2. The small number of States accepting direct access
The small number of declarations under Article 34(6)—only eight so far, with Rwanda's withdrawal taking effect on 1 March 2017, thus reducing the number to seven—is an important factor. However, this factor is not conclusive to permitting actual access. That an Article 34(6) declaration is a necessary but insufficient condition for direct access to the Court may be seen from the fact that no cases have been instituted against some of the States that were among the first to make such a declaration. Ghana had, for example, deposited its declaration already in 2011, but no application against it has been submitted to the Court over the subsequent five years. Also, very few cases against Ghana have ever been submitted to the African Commission.Footnote 53
The African Court has made efforts to encourage an increase in Article 34(6) declarations by way of sensitization visits to States that have not yet made the declaration. Logic suggests that the member States of the Economic Community of West African States (ECOWAS) are most likely to make these declarations. These States all already accept, by virtue of their membership of ECOWAS, the jurisdiction of the ECOWAS Community Court of Justice. This Court not only has jurisdiction over human rights, as set out in the African Charter, but also allows direct access—even without requiring the exhaustion of domestic remedies.Footnote 54 Allowing such ease of access to a subregional court, while at the same time denying direct access (after the exhaustion of domestic remedies) on the same substantive basis at the regional level, seems to present a clear anomaly. This anomaly is rooted in actual practice, with the ECOWAS Court having been ‘at least as active in adjudicating human rights violations’ as the African Court and Commission.Footnote 55 It should therefore come as little surprise to note that five ECOWAS member States (Benin, Burkina Faso, Côte d'Ivoire, Ghana and Mali) have rid their legal systems of this anomaly (and thus make up the core of the seven direct-access States). While it is disappointing and incongruous that almost half the ECOWAS member States have not even ratified the Court Protocol,Footnote 56 the most compelling argument for making the Article 34(6) declaration, at present, should be directed at those ECOWAS member States that are party to the Court Protocol and had not yet done so: The Gambia (in particular in the Adama Barrow era), Niger, Nigeria and Senegal. Clearly, two of the hegemons in West Africa, Nigeria, in the anglophone and Senegal, in the francophone parts of the subregion, have thus far refrained from accepting direct access to the continental Court. Is it possible that Senegal has been made watchful due to the submission of the Yogogombaye case; and that Nigeria is more inclined towards the ECOWAS Court, for which it provides the seat in its capital, Abuja? In any event, these two States are in the company of other subregional hegemons (South Africa in Southern Africa; and Kenya in East Africa) that are party to the Court Protocol but have not made Article 34(6) declarations. Is a tendency of hegemon-exceptionalism emerging, similar to that in the Inter-American system, where the USA and Canada are not party to the main treaty of the Organisation of American States (OAS), the American Convention of Human Rights, and do not accept the jurisdiction of the American Court of Human Rights?
The same argument can, to a slightly less forceful extent, be made in respect of member States of the East African Community (EAC), where a subregional court of justice, allowing for direct access, is also in place. Direct supranational access, without exhausting domestic remedies, is also possible from EAC member States to the East African Court of Justice. Although the Court does not have the jurisdiction to find violations of human rights, as such, and thus also not of the African Charter, the Court has found violations of the EAC Treaty even when the findings (also) entail human rights violations. This aspect of the EAC Court's jurisdiction has on numerous occasions been explored by human rights actors, leading to decisions with human rights ramifications in respect of all five member States.Footnote 57 In the 2015 Democratic Party judgment,Footnote 58 the EAC Court's Appellate Division specifically clarified that it has jurisdiction to interpret the African Charter as part of establishing States’ adherence to their commitment under the EAC Treaty related to human rights, including the African Charter.Footnote 59 The EAC Court differs from the ECOWAS Court in that, while the ECOWAS Court has been accorded substantive jurisdiction over the African Charter, the EAC Court lacks explicit human rights jurisdiction. All five EAC members have ratified the African Court Protocol, but only two have made declarations accepting direct access to the African Court.Footnote 60 One of these States, Rwanda, subsequently withdrew its declaration. Rwanda's initial declaration (on 22 January 2013) came amidst a case having been instituted against EAC member States, in which it was contended that the failure to accept direct access to the African Court violated both the EAC Treaty and African Charter.Footnote 61 Considering the sequence of events, it appears that Rwanda made the declaration primarily to avert an adverse judicial finding. Having resulted from extraneous forces and not from a process of domestic deliberation and participation, Rwanda's withdrawal could thus be undone without much domestic political cost.
3. The exhaustion of domestic remedies requirement
It is an undeniable reality that many potential disputes could have made their way to the African Court, but did not. The reasons for cases not being submitted to the African Court relate to three layers of obstacles. The first is the requirement that the aggrieved person should conceive of what ‘happened to them’ as a ‘human rights violation’. Put differently, the grievance has to be crystallized into a judicialized dispute. However, this does not come intuitively to many in Africa, where the existence of a legal culture (a culture rooted in the rule of law), often remains underdeveloped and illusory. At the domestic level, only a fraction of potential ‘injurious experiences’ ever end up as formally litigated claims.Footnote 62 To explain the limited extent to which legal disputes are crystallized from a much larger universe of invisible, unquantifiable lower layer of ‘proto-disputes’,Footnote 63 socio-legal scholars developed the notion of the ‘dispute pyramid’.Footnote 64 In most of Africa, including the direct-access States, the likelihood of a sociological ‘problem’ being conceptualized as a ‘legal dispute’ is remote. By far the greatest number of potential human rights ‘cases’ therefore fail to ever percolate into a matter of legal concern. The second layer of obstacles relates to domestic judicial systems. Even if the matter is conceived of as a potential ‘legal dispute’, the aggrieved person may never access a lawyer or the court system, owing to the limited geographic spread of lawyers and courts especially in rural areas; and the prohibitive cost involved in travel and legal fees. Even if the aggrieved person manages to have the case proceed to court, access to justice may remain illusory—enter a third layer of obstacles—due to the operation of the system itself, characterized by structural deficiencies such as the long delays in finalizing cases, other institutional inefficiencies, and corruption.
4. Awareness about and capacity for approaching the Court
The available evidence (including the erroneous submission of cases directly to the Court, and the Court's own efforts to raise awareness about itself within African States) suggests that a lack of awareness is an important constraining factor. Of the cases that are actually finalized in the domestic judicial system, some cases may end in a finding unfavourable to the aggrieved party and would thus be ‘eligible’ for submission to the Court. However, even these cases may never reach the Court because both the aggrieved person and the domestic lawyers may not be aware of or alert to this possibility, and the lawyer may lack the knowledge and capacity to take on the case. It is only in respect of the cases found in the aggrieved person's favour where there is no need for access to internationalized justice. Regrettably, these cases may be few and far between.
5. The requirement for an NGO under Article 34(6) to enjoy ‘observer status’ with the African Commission
Although this requirement may appear burdensome, it has not proved to be an actual inhibitor to access, as the ‘individual’ category is broad and open-ended enough to facilitate the role of NGOs in the process—even if they do not have the required ‘observer’ status.
B. Indirect Access via African Commission
The indirect road to the Court, via the African Commission, takes four possible routes, which are set out in Rule 118 of the Commission's Rules of Procedure. These different avenues do not, however, present clear-cut or divergent courses, but may sometimes overlap or run concurrently.
1. The road not (yet) taken: The Commission referring its unimplemented merits finding to the Court
The African Commission's competence to refer to the Court cases decided by the Commission on the merits is explicitly provided for in Rule 118(1) of its Rules of Procedure. This form of referral concretizes the role of the Court of ‘complementing’ the Commission's protective mandate by providing for an unequivocally legally binding decision in instances where the State concerned does not abide by a recommendatory finding of a quasi-judicial body. The trigger for this referral is twofold: non-compliance by the respondent State, as determined by the Commission; and the exercise of the Commission's discretion in favour of referral.
Resembling the Inter-American system and the erstwhile European Commission/Court relationship, the Court's role in a Rule 118(1) referral may at first glance be viewed as that of ‘converting’ the Commission's non-binding finding into a binding decision. Recognizing that one of the main reasons for referral of cases to the Court is the non-compliance by a respondent State with the Commission's finding, the Commission's Rules of Procedure mandate it to refer a case to the Court when a State did not or is unwilling to take effective measures to give effect to the finding, within six months of being notified of the finding.Footnote 65
While non-compliance seems to be the trigger for this form of indirect referral by the Commission to the Court, this factor in itself does not guarantee referral, since the Commission retains the discretion to refer (or not to refer) such cases.Footnote 66 The question is: what other factors would or should guide the exercise of this discretion? Taking a leaf from the Inter-American Commission's Rules,Footnote 67 the view of the complainant about the desirability of referral, and the ‘nature and seriousness of the violation’, seem to be important factors to take into account. However, Rule 45(1) of the Rules of Procedure of the Inter-American Commission stipulates that the Commission ‘shall refer the case to the Court, unless there is a reasoned decision by an absolute majority of the members of the Commission to the contrary’ (emphasis added). The above-mentioned factors (in respect of the Inter-American system) are thus taken into account only to rebut a presumption of referral.Footnote 68 The factors that should influence the Commission in the exercise of its discretion could include: the attitude of the State, as reflected in the reasons for and extent of non-compliance by the State; the views of the complainant on the matter; the extent to which there may be a factual dispute (to be resolved by the Court) especially if the complainant was exempted for exhausting local remedies; the nature and seriousness of the violation; the prospect of successfully presenting the case before the Court; and the potential importance of the case for other State parties.Footnote 69
Under the old European system, the European Commission of Human Rights also had the discretion to refer cases to the European Court of Human Rights. With no guidance being provided in either the European Convention or the Rules, the Commission initially referred very few cases to the Court. In the period between 1959 (when the European Court was established) and 1968, for example, the Commission only referred two out of 49 potential cases to the Court.Footnote 70 Later, a change of heart ensued, and referral became more common, culminating in a practice of universal referral. In 1998, this duality disappeared, when the European Commission ceased to exist.Footnote 71
It is suggested strongly that the African Commission should pre-empt the stages through which both the European and Inter-American systems evolved, by adopting the logical end-point, namely, a presumption that all cases of established non-compliance are referred to the Court, unless a majority of the Commission's members decide otherwise on a substantiated basis mainly informed by the views of the complainant.
By the end of 2016, the African Commission has not referred any case on the basis of Rule 118(1), that is, after deciding the case on the merits. Some pertinent reasons for the dearth in referral are now scrutinized.
Importantly, the Commission can only refer cases against parties to the Protocol. This factor further explains why there have been very few candidates for this form of referral: many of the States in respect of which the Commission has found violations between 2010 (when its current Rules of Procedure entered into force) and 2016, such as Angola, DRC, Ethiopia, Eritrea, Sudan and Zimbabwe, have over that period not accepted the jurisdiction of the Court. An additional factor limiting the pool of potential cases is the inability of the Commission to finalize more than a very small number of cases over this period.
But even where it had been possible, the Commission had been reluctant to make referrals. One of the primary candidates for referral is the Endorois case (Centre for Minority Rights Development v Kenya).Footnote 72 The Commission decided this case on the merits as far back as November 2009, finding Kenya in violation of various rights of the Endorois people resulting from the community's forcible displacement from their ancestral land, without proper consultation or compensation, in order to establish a game reserve and stimulate tourism. The reasons for non-referral may have a factual and legal basis. As for the factual dimension, the issue is establishing actual ‘non-compliance’. As this case vividly illustrates, ‘compliance’ is not a zero sum game, but needs to be established along a complex continuum where political will to give effect to the decision may appear, disappear and reappear. Applying rules inflexibly may not be the most appropriate way of dealing with a dynamic political context, where political willingness is constrained by the polycentric nature of the indigenous peoples’ claim to land. At the same time, the latitude allowed to a non-implementing State should be restricted by an outer limit, which is not the case at present. Responding to the State's procrastination, the Commission broke new ground in its fledgling follow-up practice by holding an implementation hearing, involving the parties,Footnote 73 and by taking a resolution to urge the Kenyan government to report on its implementation of the decision.Footnote 74 However, by the end of 2016, the case has not been referred, despite Kenya's lack of full cooperation.
One of the factors constraining Commission-referrals appears to be the apprehension that a case, once referred, will undergo a de novo consideration (with a full reconsideration of the facts and the law, including admissibility, merits and remedial orders). On the understanding that these findings are referred to the Court after determinations both of admissibility and the merits, the question arises how the Court should treat the Commission's findings on these issues. The answer in my view should be informed by purposive and cooperative complementarity, that is, a situation where the two distinct entities work together to enhance their shared purpose (securing the most effective human rights protection), rather than to undermine this purpose (for example, by exacerbating delays, duplication or erosion of confidence in regional human rights protection).Footnote 75 Legally speaking, and as the evolution of both the European and Inter-American systems indicates, the Court is competent to fully reconsider the facts and the law. In its very first contentious case,Footnote 76 the Inter-American Court had to answer the Inter-American Commission's contention that the Court ‘has a limited jurisdiction that prevents it from reviewing’ all aspects of cases referred by the Commission.Footnote 77 The Court rejected this argument, based on the provisions of the Convention granting it competence to decide ‘all matters relating to the interpretation or application of (the) Convention’.Footnote 78 Similar broad wording in the African Court Protocol supports the adoption of a parallel position in the African human rights system.Footnote 79 In the decision, the Inter-American Court emphasized its role as autonomous and sole judicial interpreter of the Convention.Footnote 80
What is clear is that the prospect of the Court merely rubber-stamping the Commission's findings (that is, simply ‘converting’ the quasi-judicial findings into binding decisions) is out of the question. But should the Court necessarily reconsider every single aspect of the case before it? In answering this question, a distinction is here drawn between prior Commission decisions on admissibility and merits.
As far as admissibility decisions are concerned, it may be argued that the Court's reconsideration of the decision should as far as possible be minimized. Dealing with admissibility from scratch, as a matter of course, would lead to duplication and delay. Conflicting decisions on admissibility (with the Court finding a matter inadmissible) could fragment the system and undermine purposive and cooperative complementarity.Footnote 81 More fundamentally, the reconsideration of admissibility—especially if it leads to a decision of inadmissibility—could undermine confidence in and delegitimize the entire system. Consider the impact on the perception of this process if, after a protracted process of exhausting remedies in domestic courts and obtaining an admissibility finding from the African Commission, an applicant is—years later—made to stumble at this procedural hurdle before the Court. It is not unimaginable that the entire period to get to the Court's judgment could take longer than a decade. To pre-empt such concerns, the Court should adopt a practice of presuming admissibility in cases brought to it by the Commission. Certainly, a State should be estopped from introducing before the Court inadmissibility arguments not previously raised before the Commission.Footnote 82 It is significant that the ‘old’ European Court for the first time found inadmissible a case submitted to it by the erstwhile European Commission only in 1980.Footnote 83 However, for such an approach to take root, the African Commission should improve its fact finding and the legal reasoning in arriving at findings on admissibility.
As far as the Commission's findings on the merits are concerned, the Court should be allowed more leeway, while arguably taking as its starting point the factual basis as reflected in the Commission's finding (‘report’) before it. The Rules of Court seem to follow the suggested approach by allowing the Court to obtain any evidence ‘which in its opinion may provide clarification of the facts of the case’.Footnote 84 The Court may further require evidence ‘on any specific point’,Footnote 85 and may assign one or more Judges to conduct a fact-finding mission.Footnote 86 Particularly where domestic remedies had been exhausted, when both parties were present, contributed to and contested the Commission's factual finding, or when the Commission had in fact conducted a fact-finding mission, it would be inappropriate for the Court to establish the facts afresh.
In any event, as soon as the State starts contesting the facts found by the Commission, the absence before the Court of the initial complainant becomes intolerable. One clear conclusion to be drawn is that, if the Court reopens questions of fact, the complainant must have a voice at the table at which this issue is debated.Footnote 87
2. The Commission referring its unimplemented interim measures to the Court
Rule 118(2) presents a variant to the Rule 118(1) access, as it allows the Commission to refer its unimplemented ‘requests’ for interim measures to the Court, for its binding orders on provisional measures. The importance of getting the Court involved in these findings is exhibited in the disregard by States for some of the Commission's interim measures requests.Footnote 88 The difference between this and the first category of referral is that, here, the case has not been considered on its merits. Indeed, both the Commission and the Court have emphasized in their practice that a request or order for provisional measures does not prejudge the outcome of the substantive issue.Footnote 89 Once the case has been referred to the Court, the case is no longer before the Commission; there is thus no parallel ongoing process.Footnote 90
The question may be posed whether the Commission can issue such a request or make such a referral only once it has declared the communication admissible. In line with the Inter-American precedent in this regard, the Commission's provisional measures request or referral should not be made to depend on the admissibility of the matter before it. In a communication concerning the harassment of a candidate for the August 2012 elections in Angola, the Commission made its request without having found the matter admissible.Footnote 91
By the end of 2016, the Commission referred two cases explicitly on the basis of Rule 118(2). One case relates to Saif Al-Islam Ghadafi, son of the erstwhile Libyan leader. Having ordered provisional measures on 18 April 2012, and after in vain allowing a prolonged period to secure State compliance, the Commission referred this case to the Court. The Court ordered provisional measures of its own on 15 March 2013.Footnote 92 Although some response was forthcoming, the State was found not to have complied with the provisional measures order.Footnote 93 Although the Commission's referral fits Rule 118(2) (non-compline with a provisional measure), the Court makes little reference to the Commission's request for provisional measures, opting instead to foreground the merits of the case. It also specifies that it adopted its own provisional measures ‘of its own accord’, as if not prompted by the Commission to do so. However, as Ouguergouz J shows,Footnote 94 the Commission in fact submitted the case on the basis of the State's failure to comply with the initial request for provisional measures.
The second case relates to an indigenous community in Kenya, the Ogiek, which has ‘since time immemorial’ been living in particular forested areas in the country, including the Mau forest. Having received, on 14 November 2009, a communication concerning the eviction of this community, the Commission acted relatively swiftly, and on 23 November 2009 issued a request for provisional measures to Kenya, to ‘stop irreparable harm’. This matter was referred to the Court on 12 July 2012, on the basis of both Rules 118(2) and (3). Some time later, on 15 March 2013, the Court ordered provisional measures.Footnote 95 It has subsequently, in 2017, concluded the consideration on the merits.Footnote 96
3. Referral of serious or massive human rights violations: based on a situation or a formal communication?
Under Rule 118(3), the Commission may submit a ‘case’ to the Court if a ‘situation’ in its view constitutes ‘one of serious or massive violations of human rights’.Footnote 97 Because the Commission is already entitled, under Rule 118(4), to refer any communication (also one dealing with ‘serious or massive violations’) before it ‘at any stage of the examination’, this Rule could potentially be interpreted as allowing referral of a ‘case’ based on evidentiary material that does not form part of a ‘communication’ before the Commission. Such an interpretation would allow for a meaningful distinction between the two sub-Rules, with Rule 118(3) understood as adding an independent, complementary ground for referral not foreseen under Rule 118(4). It would also be the interpretation that allows greater access to the Court (via the Commission). For these reasons, in my view, this interpretation could be adopted.
However, the Commission has not as yet adopted this interpretation. In the Ogiek case, for example, the Commission's referral (of a communication pending before it) makes mention of two Rules, the one allowing for the referral of an unimplemented request for preliminary measures (Rule 118(2)), and the other for referral of a situation of massive violations (Rule 118(3)). Clearly, the Commission could also have invoked Rule 118(4), because this matter constitutes a referral at one of the ‘stages’ of the ‘examination of a communication’.
Viewing Rule 118(4) as an overarching and guiding provision, Rule 118(3) may be regarded as finding application only in respect of communications already pending before the Commission that reveal serious or massive violations.Footnote 98 In this interpretation, Rule 118(3) is subsumed under the Rule 118(4), rather than providing for a separate ground for referral.
4. Referral to substitute the Commission's admissibility and merits finding with that of the Court
In Rule 118(4), the Commission's Rules take a decisive and unprecedented step towards effective complementarity with the Court by providing that the Commission may ‘seize’ the Court ‘at any stage of the examination of a communication’.Footnote 99 To distinguish this possibility from referrals in case of non-compliance, it must be assumed that ‘any stage’ here means any stage before a decision on the merits has been reached, and before the expiry of the 180-days implementation period granted to the violating state.Footnote 100 If this distinction were not drawn, it would not have been necessary to allow separately (in Rule 118(1)) for referral in cases on non-compliance after a final finding and non-compliance with that finding, because that form of referral would have been covered by ‘any stage of the proceedings’. Under Rule 118(4), the Court's role is thus not to refer the Commission's unimplemented finding on the merits, but constitutes the first ‘international decision’ on the merits of the complaint/case.
If the Commission should apply Rule 118(4) with great regularity and frequency to refer cases to the Court before deciding on the merits of these cases, this avenue may potentially substitute the Commission's protective role with that of the Court. In fact, States may argue that referral by the Commission in such instances amounts to giving individuals direct access to the Court, thus rendering redundant States’ acceptance of direct access. However, such an argument falters, as it does not account for the fact that referrals under Rule 118(4) are still initiated by the Commission, and not by the aggrieved individuals themselves.
Still, it would be appropriate for the Commission to avoid a practice of routinely referring cases without finalizing them, lest the argument be forwarded that, de facto, such routine referrals nullify the difference between States that have made an Article 34(6) declaration and those that have not. The possibility to refer a case prior to the Commission finalizing it is guided only be the requirement of ‘necessity’.Footnote 101 Alert to the need for effective co-existence and reinforcing complementarity, the main consideration here should be the urgency or immediacy of the need for a binding decision. A pertinent example would be a pressing matter requiring urgent resolution, in respect of a State or in a situation where the respondent State is unlikely to comply with the Commission's directive. The Commission should refer such a case to the Court, either without dealing with it at all, or immediately after determining its admissibility. As a general rule, the Commission should not leave it to the Court to determine admissibility in respect of matters that are manifestly inadmissible. This would be an unwise use of resources. In such instances, the Commission should act as a filtering mechanism.
The first case referred by the Commission to the Court arguably falls into the Rule 118(4) category. In the African Commission on Human and Peoples’ Rights (Benghazi) v Libya,Footnote 102 the Commission did not mention the specific Rule under which it referred the case. It is, however, clear that the Commission did not decide any aspect of the case prior to referral. Once the case was before it, the Court of its own accord decided to order provisional measures. It could therefore be assumed that the case was based on a communication before it, and that the Commission referred the case before deciding the admissibility of the matter.Footnote 103 Soon after receiving the case, the Court issued an order after concluding that there was a situation of extreme gravity and urgency,Footnote 104 as well as a risk of irreparable harm to persons who are subjected to the application.Footnote 105 Thus, the Court ordered that Libya refrains from human rights violations and report within 15 days. Although an order is not a final decision, it is binding,Footnote 106 and can lead to the international responsibility of States.Footnote 107 The case was never finalized on the merits, due to the inability of the African Commission to bring forward and present the case to the Court.Footnote 108
5. Access deferred: The possibility of indirect access via the African Children's Rights Committee
The Court Protocol omits the African Children's Rights Committee from the list of entities in Article 5(1) that are expressly entitled to ‘submit’ cases to the Court.Footnote 109 No indirect access to the Court, by way of referral by the Committee, is thus possible.
This textual omission creates a threefold anomaly. First, although the Court can find violations of the African Children's Charter in direct-access cases, on the basis of the Court's substantive mandate,Footnote 110 it cannot hear cases alleging violations of the Children's Charter that have been considered by the African Children's Rights Committee. Second, although the Committee has since its establishment in 1999 been exercising a protective mandate procedurally similar to that of the African Commission, and has been beset by the problems very similar to those experienced by the Commission, only the Commission is eligible to refer cases to the Court. Two human rights monitoring bodies, set up under the umbrella of the same intergovernmental organization, therefore operate fundamentally differently: cases before the one (the Commission) can be referred to an independent judicial body, for its binding decision, while cases before the other body (the Committee) are not eligible for referral to the same judicial institution. Third, when it adopted the Protocol on the African Court of Justice and Human Rights in 2008, the AU Assembly added the Committee to the list of entities eligible to refer cases to the to-be-established Court.Footnote 111 The contention that the Committee should be ‘read into’ the entities that may refer cases to the Court is supported by the likelihood that the to-be-established Court will not become operational in the near future.Footnote 112 As all other relevant circumstances that are now in place would remain so if and when this Protocol would enter into force, or if it would be replaced by a subsequent protocol, the AU already committed itself to granting the Committee the competence of referral to the Court.Footnote 113
Against this background, it may come as a surprise that the African Court confirmed these anomalies in a 2014 advisory opinion, when the Committee approached it with the question whether it may refer decided cases to the Court. Although the Court referred to the anomalies set out above, it ultimately opted for a textual and originalist approach.Footnote 114 However, a contextual reading of the Protocol opens up a distinctly divergent yet plausible interpretation. In this reading, the silence of the Protocol on this issue can best be understood against the historical background of its adoption. When the Protocol was adopted in 1998, the Committee did not exist, and the prospect of its establishment either seemed remote,Footnote 115 or was not a pertinent consideration at all, given the relative obscurity of the African Children's Charter at the time. It is therefore unsurprising that the Protocol does not contemplate the Court complementing the African Children's Committee's protective mandate. A contextual approach would also take account of the need for better coordination within the African human rights system. Ensuring that the two bodies have equal access to the Court would enhance the coordination, cohesion and integrity of the system as a whole. Only the optimism inspired by the 1990 democratic epoch can explain why the African Children's Charter was not adopted as a protocol to the African Charter, supervised by the African Commission,Footnote 116 but as a separate treaty with its own treaty body, in competition with the already under-resourced African Commission.Footnote 117
Drawing the necessary implications from the Court's advisory opinion, the AU Executive Council in July 2016 called on the Assembly to add the Committee to the list of entities eligible to refer cases to the Court.Footnote 118 Subsequent to this decision, the matter seems to have stalled, apparently on the basis that the prescribed process for amendment, set out in Article 35 of the Court Protocol, has not been followed. This approach seems to favour formalism over functionality. While the process for amendment did not start with a ‘written request’ by a State, as Article 35 stipulates, the substantive requirement of inclusion and participation had been met. Alternatively, the Committee's request may be viewed as a proposition for amendment, as contemplated under Article 35(2) of the Protocol. In any event, the proposed course of action finds a precedent in the amendment of the African Children's Charter to make members of the Committee eligible for re-election, which came about by way of an Assembly decision based on advice by the AU Legal Counsel,Footnote 119 and not through the formally prescribed procedure of treaty amendment.Footnote 120 As the procedure for amendment of the Court Protocol is materially similar to that of the Children's Charter, the same procedure should be followed to add the Committee to the list of eligible entities. Unfortunately, by the end of 2016, the addition of the Committee to Article 5(1) of the Court Protocol had not been achieved.
III. ACCESS TO VICTIMS AND THEIR REPRESENTATIVES
When individuals gain direct access to the African Court, they obviously are able to represent themselves (or be represented by a lawyer) during Court proceedings. When the case reaches the Court indirectly, via the African Commission, complainants should have the same access. In those cases, it is the Commission that refers the case, and it is cited as the party before the Court.
In this respect, the evolution of victims’ representation before the Inter-American and European Courts of Human Rights is very illuminating. Even though the American Convention stipulates that only State parties and the Commission ‘have the right to submit a case to the Court’,Footnote 121 the ‘alleged victim’ soon acquired a prominent role in the proceedings before the Court. From the outset, the Commission allowed the victims and their representatives to be an ‘integral part’ of the Commission's delegation and to take part in the proceedings before the Court, for example by cross-examining witnesses.Footnote 122 During a public hearing in 1996, one of the Judges took the initiative and started addressing questions pertaining to reparations to the victim's representatives.Footnote 123 The Commission's Rules subsequently reflected this practice, during the reparations phase, and eventually the autonomous role of the victims or their representatives was extended to all phases before the Court.Footnote 124 Currently, in the Inter-American system the original victim is a fully-fledged party in all phases before the Court, and the Inter-American Commission is represented in the Court proceedings by a delegate assisted by a legal officer. Similarly, under the 1950 European Convention, only States and the Commission could refer cases to the Court, and be part of proceedings before it.Footnote 125 However, starting with the first case before the Court, Lawless v Ireland,Footnote 126 the European Commission and Court went far beyond these strictures. Despite ‘stiff resistance’ from the Irish government,Footnote 127 the Court approved that the applicant be given access to the Commission's report, be provided with an opportunity to comment, and be represented before the Court.Footnote 128 This was the start of an evolution towards individual applicants gaining full ‘rights of audience before the Court (via their lawyers) in the late 1970s’,Footnote 129 a position formalized in the Court's 1982 Rules.Footnote 130
Taking a mid-way position between entirely denying and completely allowing access, the African Court's Rules give a discretion to the Court, ‘if it deems it necessary’, to hear the original complainant.Footnote 131 Reference is made to Rule 45(2), in terms of which the Court may ask any person to obtain information, express an opinion or submit a report on any specific point. It is encouraging that in one of the first cases referred by the Commission to the Court, African Commission (Ogiek Community) v Kenya, the representative of the original complainant (Minority Rights Group) was allowed to take the floor and make representations.Footnote 132
It is advisable that the Commission and Court should be guided by the evolution within the other two regional systems. First, the involvement of the victims and their representatives makes practical sense, as it is likely to ensure more intimate knowledge of the cases, and better access to witnesses and documentation. As a result, the burden on an overstretched Commission (and its staff) would be lessened; and a lesser load on the Commission may enhance referral to the Court. Second, allowing full autonomy to the original complainant would remove the ambiguity in the Commission's position, which at present fluctuates between being an independent arbiter of fact and law (when it decides the communication) and representing the interest of one party to the dispute (the applicant) before the Court.
In addition, placing the case back in the individual complainant's hands would be in line with the strong trend towards the humanization of international law, which lies at the core of the accountability procedures established under international human rights law. Such an approach would also align well with the greater prominence and acknowledgment of victims in other domains of international law, in particular, under international criminal law.Footnote 133 These developments reverse previously prevailing stances that often silenced and excluded victims, by recognizing their autonomy, and the need for and benefit of their stories being told, and their presences being felt in public settings.Footnote 134
IV. ADVISORY JURISDICTION
By the end of 2016, the Court had issued only one advisory opinion, brought by the Committee of Experts on the Rights and Welfare of the Child. Of the other eight advisory requests submitted to the Court,Footnote 135 the Court rejected (‘struck out’) three,Footnote 136 and one was withdrawn;Footnote 137 leaving four pending before the Court.Footnote 138
Compared to the Inter-American Court, the African Court has not in its formative years adopted a significant numbers of advisory opinions. In fact, the Inter-American Court adopted ten advisory opinions before adopting its first decision in a contentious case.Footnote 139 In the early life of the Inter-American Court, with the Inter-American Commission's reticence to refer cases to the Court, advisory requests provided an alternative avenue to gain access to the Court. While the African Commission in its first decade of co-existence with the African Court displayed a similar reluctance to refer contentious cases to the African Court, access was still possible by way of direct access to the Court. The need for advisory opinions to invigorate the system was thus less pronounced in the case of the African Court.
To access the African Court's advisory jurisdiction, four requirements have to be met.Footnote 140 The first relates to the Court's personal jurisdiction; the other three to the Court's substantive jurisdiction.
First, the entity making the request must be permitted to do so. The list of entities permitted to request advisory opinions in the African system is more inclusive than in the other regional systems. In fact, in the European system, only the Committee of Ministers may make such a request.Footnote 141 By allowing advisory requests by OAS member States and all OAS organs, the Inter-American system made access much wider. The African Court Protocol went one step further, by adding ‘African organisations recognized by the AU’ to the list of entities entitled to submit requests. Of the nine requests made so far, two were from States (although they were both abandoned); one request came from an AU organ (the African Children's Rights Committee); and the other six requests came from NGOs.
Are NGOs entitled to access the African Court through this route? This issue turns on the meaning ascribed to the term ‘African organisations recognised by the AU’ in Article 4(1) of the Protocol. This question has by the end of 2016 not been resolved.Footnote 142 This phrase may be dissected into three elements: ‘African’ arguably relates to an organisation's geographical location (in Africa) and its management structure (being composed of Africans). The next element is ‘organisation’. Adopting a contextual approach, and looking holistically at the provisions of the Protocol, it is noted that, in addition to its use in Article 4(1), the Protocol mentions the term ‘organisation’ on two other occasions: once, qualified by the word ‘intergovernmental’ (‘intergovernmental organisations’)Footnote 143 and once qualified by the word ‘non-governmental’ (‘non-governmental organisations).Footnote 144 The term ‘organisation’ is therefore used in the Protocol as a generic term, of which the species includes entities that may be either intergovernmental or non-governmental.Footnote 145 Unlike Article 5 (dealing with access in contentious proceedings), Article 4(1) does not make a distinction between governmental and non-governmental organisations. Following this logic, all ‘organisations’, including NGOs, therefore have the right to request a legal opinion.Footnote 146 It is submitted that the third element, ‘recognised by the AU’, refers to recognition of an NGO by any of the organs or agencies of the African Union (AU).Footnote 147 Under modern international law, it is trite that an agent is authorized to act on behalf of its principal within the mandate granted to the agent. The AU has a number of organs and agencies carrying out various mandated functions. Although the African Commission is not established in the AU Constitutive Act as an ‘organ’ of the AU, it has since 1987 existed as a de facto organ of the OAU/AU. Its legal existence is based on the African Charter, a separate legal instrument adopted by the OAU/AU. In any event, in one of its first decisions, the AU Assembly of Heads of State and Government decided that the African Commission ‘shall henceforth operate within the framework of the African Union’.Footnote 148 It will therefore be logical and practical to consider NGOs which enjoy observer status with AU agencies such as the African Commission as being recognized by the AU within the terms of Article 4(1).Footnote 149
The second requirement is that the subject matter of the request must not ‘relate to an application pending before the African Commission’. One request, related to the suspension of the SADC Tribunal, failed at this hurdle, because a matter related to the SADC Tribunal was already pending before the Commission.Footnote 150 The request to the Court was submitted on 23 November 2012, and the Court on 15 March 2013 declined the request.Footnote 151 The case before the Commission, alleging that the suspension of the SADC Tribunal violated the African Charter (as well as the SADC Treaty and ICCPR),Footnote 152 was concluded at the Commission's session ending on 5 November 2013. Because the Commission found no violation, the question arises whether the applicants are likely to be successful if they approached the Court anew with the same advisory request. It would seem that they are eligible to approach the Court again, given that there is no impediment, as the case is no longer pending before the Commission. The admissibility criteria under the African Charter, including the principle of res judicata,Footnote 153 which apply in contentious proceedings, are not part of the requirements for advisory requests.
The third requirement is that the request should contain a question of a legal (rather than a purely political or economic) nature. It appears that one request, concerning the legal and human rights consequences of systemic poverty in Nigeria, was rejected on the basis that the issues raised did not reveal a sufficiently ‘legal’ basis.Footnote 154
Fourth, the request must relate to the interpretation of ‘the Charter or any other relevant human rights instruments’. Clearly, in addition to the African Charter, other AU human rights treaties such as the Women's Rights Protocol and Children's Rights Charter fall into this category. Resembling the scope of the Court's contentious jurisdiction, there is no restriction that these instruments have to be ‘African’. Since there is no requirement that States be parties to the ‘instruments’ on which the request is based, a request may also relate to the UN human rights treaties (to which the relevant States may or may not be a party) and to other regional treaties, such as the European Convention on Human Rights. Also, the term ‘instrument’ allows for requests based on soft law standards.Footnote 155 Consequently, encompassing matters related to all human rights treaties and all soft law standards related to human rights, the substantive scope of the Court's advisory opinions is immense.
The Court rejected one of the requests submitted to it, apparently—but not explicitly—on the basis that it did not relate to a ‘human rights instrument’.Footnote 156 The question posed by this request concerns the hierarchy of international obligations: for AU member States that are also parties to the ICC Statute, which is the higher obligation—the duty to cooperate under the ICC Statute, or the duty of non-cooperation established by some AU Assembly decisions? The Court held that the question is one of ‘general public international law’ and not human rights law.Footnote 157 Despite the fact that the ICC Statute is clearly mentioned as the basis for the request, the Court held that the applicants have not ‘specified the provisions of the Charter or any other international human rights instrument in respect of which the advisory opinion is being sought’.Footnote 158
This view is open to two broad lines of criticism. On the one hand, the Court passed by the opportunity of providing its understanding of what the elements of a ‘human rights instrument’ are, and to express itself on the ‘human rights status’ of the ICC Statute. Adopting an approach that there are no rigid dividing lines between ‘international human rights law’ and ‘international criminal justice’,Footnote 159 the ICC Statute arguably qualifies as a ‘human rights instrument’. The three core ICC crimes all result from egregious human rights violations; and the ICC is merely a mechanism for holding accountable those responsible for the most serious human rights violations. On the other hand, divorcing matters of ‘public international law’ from ‘human rights law’ is not reflecting the fact that international human rights law is a species of public international law. Some of the questions related to public international law are equally and crucially important to the specific area of international human rights law (IHRL). This sentiment is shared by Ouguergouz J, who in his dissenting opinion in the ICC Advisory Opinion expressed the view that IHRL is based on, and is ‘by definition irrigated by’ and ‘imbibed by international law’.Footnote 160 In his view, it is therefore inevitable that the interpretation of human rights would give rise to questions about treaty interpretation and the hierarchy of norms.Footnote 161
Arriving at a different outcome, as far as the African Charter on Democracy, Elections and Governance (African Democracy Charter) is concerned, the Court in APDH v Côte d'Ivoire holds that an instrument's ‘human rights-ness’ has to be determined with reference to its aim and purpose. It then cites a number of provisions of the African Charter (rather than what is in dispute, the Democracy Charter and the ECOWAS Treaty) and without any further reference to the substance of these treaties, it concludes that, because these treaties give effect to the rights in the African Charter, they should be considered as ‘human rights’ treaties.Footnote 162
The American Convention has an analogous provision, in that it allows the Court to interpret ‘other treaties concerning the protection of human rights in the American States’,Footnote 163 even if it is more restricted—it related only to treaties (not ‘instruments’), and only to those treaties human rights protection ‘in the American states’. Two opinions shed particular light on what a ‘human rights’ treaty entails. In response to request by Peru, the Court, in Other Treaties, interpreted the phrase ‘other treaties’ to include ‘any provision dealing with the protection of human rights set forth in any international treaty applicable in the American States … whatever be the principal purpose of such a treaty, and whether or not non-member states of the inter-American system are or have the right to become parties thereto’.Footnote 164 In another case, Mexico requested whether Article 36(1)(a) of the Vienna Convention on Consular Relations falls under the Court's advisory jurisdiction.Footnote 165 The answer to the question before the Court turned on whether this provision constitutes a treaty provision ‘concerning the protection of human rights in the American States’. The Court held the view that, since Article 36(1)(a) ‘endows a detained foreign national with individual rights that are the counterpart to the host State's correlative duties’,Footnote 166 this provision of the treaty falls within the Court's advisory jurisdiction.
Different to the African Court, the Inter-American Court has the explicit competence to give an opinion about the compatibility of a State's domestic laws with the treaties within the Court's jurisdiction.Footnote 167 As long as the requirements above are met, there is in my view no reason why the African Court should not also provide opinions on such questions.
V. AMICUS CURIAE
Individuals and NGOs may request to be admitted as amici curiae before the Court. Greater access by amici curiae is likely to enhance the quality of a court's judgments, and serves to make the court proceedings more democratically legitimate.Footnote 168 Access to amici may bolster a party's argument by introducing supporting jurisprudence; it may enlarge the scope of the Court's inquiry by drawing attention to an issue not of immediate concern to the parties but relevant to the determination of an issue before the Court; and it may introduce additional points of view or arguments. This form of access also emerged as an important complement to the submissions of the parties in most international human rights fora,Footnote 169 including the European and Inter-American regional systems.Footnote 170
Although the Protocol is silent on the possibility of amicus curiae proceedings, the Court's Rules indicate that the Court has a discretion to allow as amicus curiae any person whose ‘assertions’ or ‘statements’ may ‘assist the Court in carrying out its task’.Footnote 171 This position is further clarified in the Court's 2012 Practice Directions, which are specific in allowing individuals or organizations who want to act as amici curiae to ‘submit a request to the Court’.Footnote 172 The amicus is entitled access to the application before the Court, as well as subsequent pleadings.Footnote 173 Although the Practice Directions are not explicit on this point, in order for this procedure to be optimally accessible, these documents should not only be provided when requests have already been made, but also at the request of aspiring amici. Admitted amici may present their submissions during oral hearings.Footnote 174
The Court has exercised its discretion to grant a request from amicus curiae intervention in at least four cases, ranging from provisional measures proceedings, decisions in interlocutory or preliminary proceedings, to merits decisions in contentious cases. Amici are also allowed to intervene in requests for advisory opinions.Footnote 175 PALU was granted amicus status in a case concerning Libya, in which the Commission ordered provisional measures in 2011.Footnote 176 The Coalition for an Effective African Court contributed as amicus in the Court's consideration of the validity and legal consequences of Rwanda's withdrawal of its Article 34(6) declaration.Footnote 177 In Konate v Burkina Faso, a group of eight NGOs submitted a joint amicus brief, and in APDH v Côte d'Ivoire, the AU Commission and the African Institute for International Law submitted briefs; in both instances on the merits.Footnote 178 In APDH v Côte d'Ivoire, the Court took the initiative to solicit the views of amici.Footnote 179
There is no indication that the Court has so far refused any amicus request. In the matter of Umuhoza v Rwanda, the Court acceded to the request to act as amicus curiae by the Rwandan National Commission for the Fight against Genocide (apparently as far as the merits are concerned). In subsequent proceedings, the Court denied the applicant's request to ‘reject’ the Commission's amicus brief.Footnote 180 The Court reiterated that it has the discretion both to allow amici, and to ‘take what it considers relevant and non-partisan from the amicus curiae’.Footnote 181 Its approach is thus opting to be generous in admitting submissions, while emphasizing that it retains the authority to carefully scrutinize and attach weight to them.
The Court also adopted an accommodating approach to the substantive content of amicus briefs. It does not seem to require an element of ‘novelty’, but merely requires that amici should specify ‘the contribution they would like to make with regard to the matter’.Footnote 182 The amici in Konate illustrate how amici may complement an applicant's argument. While the applicant focused on the violation occasioned by the sentence of imprisonment imposed on him, the amici contended that any criminalization (that is, both custodial and non-custodial sentences) would violate the Charter. In a vote of 6 to 4, the Court rejected the amici's argument.Footnote 183
VI. CONCLUSION
Between 2006 and 2016, the African Human Rights Court handed down merits decisions in eight contentious cases, finding violations in all of them. It declared only two cases inadmissible. Assessing the Court's accessibility to victims over the last decade depends on the yardstick that is applied. Measured, on the one hand, against the countless human rights violations befalling the African continent, and even the number of these instances ending up with the African Commission, the Court's contribution has been extremely modest. However, the main reason for the small number of cases finding their way to the Court relates to the socio-economic and cultural context of most African States, captured by the ‘dispute pyramid’, in terms of which only a small percentage of sociological ‘problems’ are, in most of these States, ever conceptualized as ‘legal disputes’.Footnote 184 If, on the other hand, the case law of the Court's two regional antecedents in their first ten years is used as the unit of comparison, the African Court's record gives cause for some optimism. In its first decade (1959–1969), the European Court decided only seven cases on their merits.Footnote 185 The Inter-American Court decided three contentious cases in the first ten years of its functioning (1979–1989).Footnote 186 However, viewed from a historical perspective, the fact that the African Court decided slightly more cases is of lesser significance. When the African Court's first decade ran its course, international human rights and particularly the notion of individual access have seen great advances. By 1959, by contrast, the individual communications procedure was still a novelty, and was introduced as an exceptional, optional procedure that States had to specifically accept. Subsequently, there has been a proliferation of and much greater access to judicial institutions; and the advances in the experience of the other two regional human rights courts have by the twenty-first century served as beacons of regional access.
In the same period, the Court adopted only one advisory opinion. Whatever yardstick is adopted, access to the African Court's advisory opinions has been limited. While the European Court has a very restricted advisory competence, the Inter-American Court in its first ten years handed down 11 advisory opinions.Footnote 187
In line with the practice before other regional Courts, amici curiae have found in the African Court a welcoming environment; and there is at least some indication that original complainants/victims would be allowed to have their voices heard before the Court. This form of access is in line with the important role that NGOs have played in getting the African human rights system off the ground, for example by submitting communications to the African Commission, and by raising human rights concerns and proposing measures during the Commission's public sessions.
To the extent that access to the African Court has been restricted, the main bottlenecks have been occasioned mainly by States and the Commission, and to a lesser degree by the Court itself, and by the African Union.
Direct access has emerged as the main access route to the Court. Seven out of the eight cases decided on the merits arrived at the Court via this avenue. However, only eight out of 30 State parties ever accepted direct access. The main factor hampering access has therefore not been the lack of universal ratification of the Court Protocol, but rather the small number of State parties to the Protocol accepting direct access to the Court. While it is disappointing that ratification has been waning as the decade progressed, the current group of 30 constitutes a relatively like-minded group, and should be the core around which the fledgling system should be allowed to grow into maturity. To improve direct access, there should therefore be an increase in the number of Article 34(6) declarations among the State parties to the Protocol, specifically by States that have already accepted direct judicial access to supranational judicial tribunals. Because it is clear that an Article 34(6) declaration is a necessary but not a sufficient condition for access, such a declaration should not be viewed as an end in itself, but as a basis on which to mobilize for its domestic use to overcome legal, political and institutional hurdles restricting domestic and regional access. The avalanche of cases reaching the Court from Tanzania underscores that access may be achieved if the right factors—such as visibility; and the submission and resolution of cases that capture the societal imagination—are in alignment. As for advisory opinions, no State has successfully referred a request to the Court. States should consider making use of this mechanism to obtain an authoritative view on, for example, the compatibility of their domestic law prior to ratifying particular human rights treaties.
The Commission's limited referrals hampered indirect access. The absence of any case referred to the Court after being been dealt with on the merits, seems to be due to a lack of referral criteria, deficiencies in accurately establishing (non-)implementation, and uncertainty about the Commission's role, know-how and experience in presenting such cases before the Court. The Commission should overcome its reticence to refer by developing clear criteria for referral; by adopting a rebuttable presumption of referral under Rule 118(1); by establishing a reliable, accessible and updated mechanism to provide reliable data on (non-)compliance; and by devoting some of its admittedly limited resources to bolster its competence to present cases to the Court. The Commission should also consider making use, in appropriate instances, of the African Court's advisory jurisdiction.
Although access does not in the first instance depend on the Court itself, it has to some extent also impeded fuller access. While its admissibility decisions have not imposed a significant hurdle, the slow pace of finalizing cases resulted in fewer applicants obtaining actual remedies or other outcomes. It has however taken an important step to provide access to the legal representatives of victims in its Rules and practice, and it has been generous in admitting amici curiae. While the role of original complainants (victims) and their representatives in indirectly referred cases has been acknowledged, their place in contentious proceedings before the Court should be further clarified and formalized. Clarity about the original complainants’ role may enhance the Commission's reticence to refer cases to the Court. The Court has not consistently advanced access to its advisory mandate. Its single advisory opinion did little to advance access; it narrowly interpreted its substantive advisory jurisdiction; it failed to deal expeditiously with requests, and passed by the opportunity to clarify the competence of NGOs to bring requests.
Indirect access to the African Children's Rights Committee would be enhanced by expediting an amendment to the Court Protocol. Although the AU took steps to undo the potential damage to access brought about by the Court's unhelpful advisory opinion, it has so far dragged its feet to make this a viable option.
