The potential successes and weaknesses of the African Court of Human Rights Essay Example

were created. Udombana asserts that this has profound implications and takes the example of women's rights in Africa4.

Mutua had previously expressed the fear that the African Charter offered inadequate protection for women's rights5. Under Udombana's assertion 'an aggrieved woman or group of women could bring a case to the African court under another international treaty that better protects her rights'6 because the ACHPR is not limited to the Banjul Charter.This remarkably broad subject-matter jurisdiction may mean that Africa takes a giant stride forward in the protection of human rights. However, Charney opposes this view and warns that this may be a recipe for 'jurisprudential chaos,'7 where the ACHPR's decision conflicts with other international organs decisions. Van de Mei disagrees saying that the proliferation of international oversight organs has not resulted in 'jurisprudential chaos' and that some confidence should be placed on the judges of the courts who will all be experienced and competent.

While the fear of 'jurisprudential chaos' can be dispelled, the floodgate argument cannot. There is a real danger that such wide subject-matter jurisdiction will result in a massive volume of cases, unless the court is able to exercise a great degree of discretion.The second part of the courts contentious jurisdiction is personal jurisdiction. The Protocol provides for two types of access: automatic and optional. Those that enjoy automatic access are: the African Commission, state parties, and African intergovernmental organizations. However, NGOs and individual victims of human rights violations cannot bring action against a state party unless they fulfill two conditions.

Firstly, the Court will have discretion to grant or deny such access. Secondly, when ratifying the Protocol or thereafter, the State

must make a declaration accepting the jurisdiction of the Court to hear such cases. The Court also has the discretion to deny access at will. This aspect of the court's jurisdiction concerning individuals and NGOs is perhaps one of the most controversial topics of debate that concerns the ACHPR.A 'serious shortcoming'8of the ACHPR is the limitation of access placed on individuals and NGOs. Mutua asserts that 'while limiting the access of NGOs and individuals to the Court may have been necessary to get states on board, it is nevertheless disappointing and a terrible blow to the standing and reputation of the court.

..'9This criticism is well-founded considering those with limited access are the same parties that would have been the primary beneficiaries of the court. Harrington writes; 'one need not be extensively versed in African politics to gauge the likelihood of African states making an extra effort to provide their citizens (and NGOs) with avenues through which to hold them accountable.'10 The adoption of Protocol 11 to the ECHR in the European system, has resulted in significant progress in the protection of individual rights because it gave the ECtHR compulsory competence to examine petitions from individual victims of human rights violations11.

It should be remembered that the ACHPR is not an institution for the protection of the rights of states or OAU organs. Instead it is a primary forum for protecting citizens' rights against the state and its agencies. Mutua has warned that unless interpreted broadly and liberally this limitation on access will 'render the court virtually meaningless'12 in the future.Additionally, the Court is also endowed with advisory powers as provided by Art. 4(1)(see below).

13 The

African court exercises the widest jurisdiction of any of the regional human rights systems in terms of who may submit requests for advisory opinions.It has been asserted that the advisory jurisdiction can allow for a 'dynamic and progressive interpretation'14of the African Charter and other human rights treaties. As for its broad subject matter jurisdiction, this may well be a way for courts to become engaged in the application of domestic legislation in Africa while placing a strong emphasis on human rights treaties such as the ICESCR.15 However, so far these are only optimistic speculation. It assumes a highly liberal approach.

There are no procedures that indicates to the court when to decline to exercise their advisory jurisdiction but that is not to say the court will be ultra-liberal. In addition, because advisory opinions are only advisory and have no binding effect, the importance of the Court's advisory function depends a great deal on voluntary implementation of these opinions by states. While one remains hopeful that the advisory function of the court will give it an influential voice in Africa, its potential is yet to be seen.(ii) Judicial Independence and Composition of the CourtThe Protocol provides that the court be composed of eleven judges elected in their individual capacity by the OAU assembly of Heads of States and Government from among "jurists of high moral character and of recognized practical, judicial or academic competence and experience in (...

) human rights'.16 In 2006, eleven highly qualified academics and jurists in the human rights fields were elected to the first bench of the ACHPR.Judicial independence is enshrined in Arts 17 and 18. Yet, despite these provisions, judicial independence

may be more difficult to achieve than originally envisaged by the drafters of the Protocol. One problem is that with the exception of the President, the Court does not have any full-time members.

17 Again, due to concerns of funding, judges on the African Court will be on sabbatical for a great deal of the time. This may well lead to a situation where judges may take on additional posts incompatible with their duties as judges. If the African Commission has taught the OAU any lessons is that this sort of conflict of interest will cripple any decision-making body. This view is supported by Udombana, who suggests that this kind of potential conflict should be avoided at all costs18.

And Article 15(4) of the Protocol provides for this; "the Assembly may change this (part-time) arrangement as it deems appropriate."As Udombana asserts 'the Court must be insulated from all manner of political wrangling by Member States, particularly in the appointment and composition of judges and ensured absolute autonomy in its undertakings'.19 Judicial independence will give the court 'honor, prestige, integrity and unrestrained liberty to do justice'.20 If the Court is to have any kind of impact in the human rights system in Africa, it must have a court whose integrity is not in anyway suspect.In addition, the newly elected judges will be drafting a wide range of procedures. The effectiveness of the Court will depend largely on how creative judges are in interpreting their mandate and jurisdiction.

If their approach is too narrow or conservative, the Court is likely to fail in a similar manner to the Commission21. If too broad, they will be buried under cases.

It is hoped that the judges will take an appropriately liberal and broad interpretation on access and jurisdiction so that it may have the maximum impact and influence over Africa.(iii) Enforcement and Remedial Powers of the CourtAs Harrington notes, the word 'court' conjures the image of a 'forum for the handing down of authoritative judgments...

compliance with which is obligatory.'22 Enforcement and remedial powers are essential for a court to function and have any kind of influence. The African Commission has been criticized as 'largely inadequate and ineffective'23 in ensuring the protection of human rights. It has been the hope of critics of the Commission that the creation of a court would 'give teeth' to the African Human Rights System24.Generally speaking, the Court is empowered by the Protocol to offer victims of human rights violations remedies and reparation, and to seek enforcement of its judgments as provided by Art 27.

25 Article 30 of the Protocol provides that state parties 'undertake to comply with the judgment in any case to guarantee its execution'.On paper the court does seem to have enforcement powers but how likely is enforcement in reality?Besides Article 30, there is no separate course of action provided by the Protocol when a delinquent state refuses to comply with the ACHPR's decision. Therefore, the court's effectiveness lies in the states' willingness to comply. However, history shows that in the early 1980s Africa's leaders were 'simply not willing to subject themselves to a 'supranational' court'.26 It has been noted that African states have been reluctant to taking cases to international courts27.

Although, Africa has come a long way since then strict deference to state sovereignty and non-interference

will not change easily.In cases of non-compliance, the court is required to list the state in an annual report to the OAU. Udombana contends that this is a 'potent public shaming mechanism for countries that do not comply with the judgments will strengthen the authority and effectiveness of the court.'28Yet one worries that Udombana is blinded by optimism to see the reality of the human rights situation in Africa.

While this 'public shaming' method may work in the European and Inter-American political sphere, it is hardly an effective enforcement mechanism for Africa.Firstly, there are still a number of African states that continue to show little or no regard for human rights29. In the European system, if a member state were to flagrantly violate human rights, then there would be public uproar within that country and the Community. In Africa, the awareness is not the same.

Moreover, the countries with most brutal violations of human rights have already been condemned by international bodies and the media and have done little to improve situations. Their names being printed on a list published by a fragmented OAU cannot be a realistic deterrence or reasonable chastisement given the graveness of the violations.There is the suggestion that, by relying on Art 8 of the OAU Charter, the OAU could use forms of political and economic pressure to bring about compliance30. But in most cases, the Court must rely on the good faith African states to respect the rule of law and co-operate.