ACHPR
African Court Of Human And Peoples' Rights

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The African Court on Human and Peoples' Rights (ACHPR) is the most recent of the three regional human rights judicial bodies. It was established in 1998 by a protocol, 12 years after the entry into force of the African Charter on Human and Peoples' Rights, concluded in 1981 in Banjul, Gambia, under the aegis of the Organization of African Unity (OAU). The Protocol establishing the ACHPR entered into force on January 1, 2004 upon its ratification by fifteen member states. The statute of the ACHPR has not yet been promulgated and a seat for the court has yet to be determined, therefore much of the data regarding its functioning is not yet available. Yet, because of several peculiar structural and legal features, it has nonetheless been included here.

Unlike the European and Inter-American systems for the protection of human rights, where the ECHR and the IACHPR are integral parts of the cardinal instrument of the system ab initio, in the case of Africa, the establishment of a regional judicial body to ensure the implementation of the fundamental agreement is rather an afterthought.

Before the adoption of the ACHPR Protocol, the protection of rights listed in the African Charter rested solely with the African Commission on Human and Peoples' Rights, a quasi-judicial body, modeled on the UN Human Rights Committee, with no binding powers. In particular, under the African Charter, the Commission's functions are limited to examining state reports, considering communications alleging violations, and interpreting the Charter at the request of a State party, the OAU, or any organization recognized by the OAU. The scantiness of the enforcement and compliance control mechanism contained in the African Charter, however, is hardly surprising. At the time the OAU adopted the African Charter, very few African States (i.e., Gambia, Senegal, and Botswana), could vaunt of a democratic regime respectful of at least the fundamental human rights.

In the second half of the 1990s, advancements of democracy in several African states (e.g., Namibia, Malawi, Benin, South Africa, Tanzania, Mali, and Nigeria) and the weak record of the African Commission heightened the need for stronger domestic and regional guarantees for the protection of human rights, making the establishment of the ACHPR possible.

Such a renewed impetus toward more effective protection of human rights accounts also for certain features of the ACHPR which set it apart, not only from its American and European congeners, but from all other judicial bodies. In particular, the Protocol provides that actions may be brought before the Court on the basis of any instrument, including international human rights treaties, which have been ratified by the State party in question (article 3.1). Furthermore, the Court can apply as sources of law any relevant human rights instrument ratified by the State in question, in addition to the African Charter (article 7). In other words, the ACHPR could become the judicial arm of a panoply of human rights agreements concluded under the aegis of the United Nations (e.g., the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Discrimination against Women, or the Convention on the Rights of the Child) or of any other relevant legal instrument codifying human rights (e.g., the various conventions of humanitarian law, those adopted by the International Labour Organization, and even several environmental treaties). Very few of those agreements contain judicial mechanisms of ensuring their implementation, and therefore, at least potentially, several African states could end up with a dispute settlement and implementation control system stronger and with more bite than the one ordinarily provided for by those treaties for the rest of the world.

Another peculiarity of the ACHPR concerns the standing of individuals and NGOs. Unlike any other judicial body, advisory opinions can be asked for by not only member States and OAU organs, but by any African NGO that has been recognized by the OAU, provided that at the time of ratifying of the Protocol or thereafter, the State at issue has made a declaration accepting the jurisdiction of the Court to hear such cases. Again, this is another provision that, if the OAU recognizes NGOs liberally, might eventually strengthen the ACHPR's promotional function. In the area of contentious jurisdiction, individuals also can bring cases if the above declaration has been made by the State at issue. This is a step forward from the Inter-American Court, where individuals have no standing at all, but it is still far from the progressive attitude of the new European Court of Human Rights.

With the transformation of the OAU into the African Union (AU), and a renewed emphasis on democratization and the protection of human rights on the continent, the necessary ratifications of the ACHPR Charter came swiftly. Pursuant to the Constitutive Act of the African Union, the ACHPR was originally to be one of two separate courts for the organization. However, in July 2004 the AU determined that the ACHPR should be merged with the African Court of Justice, the charter of which has not come into force. In July 2005, the AU Assembly decided that a draft instrument establishing the merged court should be completed for consideration by its next ordinary session in January 2006. The Assembly has accepted the offer of the former President of the International Court of Justice, Algerian Minister of Foreign Affairs Mohamed Bedjaoui, to draft the instrument. Meanwhile, despite the non-ratification of the Protocol on the Court of Justice, the AU will proceed with the establishment of the ACHPR without further delay; with the election of judges to take place in January, the finalization of a budget to take place in February, and the operationalization of the court registry to be completed in the near future by the Commission.

The states of the Eastern Region of the AU (Comoros, Djibouti, Eritrea, Ethiopia, Kenya, Madagascar, Mauritius, Rwanda, Seychelles, Somalia, Sudan, Tanzania and Uganda) are to determine the seat of the ACHPR, which both Uganda and Kenya have offered to host. Thus, unless the African Commission on Human Peoples' Rights moves from its current location in the Gambia, the seat of the ACHPR will be on the other side of the continent from the Commission, alienating the latter from the Court.