Ten years after the establishment of the African Court of Human and Peoples’ Rights, the question arises how the Court has dealt with human rights issues so far. By analyzing the behavior of the Court in its case law, this paper shall examine the contribution of the African Court to the development of human rights in Africa and what its prospects might be.
This paper will emphasize the procedural problems that Art 34(6) of the Protocol represents concerning the access of African citizens to the Court and how the case law on this issue evidences the conflict between state sovereignty and human rights on the African continent, and the Court’s difficult position in trying to reconcile them. Furthermore, the paper will provide an overview of the case law of the Court on human rights issues. On the one hand, the Court’s decisions highlight a serious confusion among the population concerning the Court’s role, showing that the Court is often considered to be an appellate organ that deals with ordinary civil law matters. On the other hand, however, once the Court comes to decide, it is capable of taking a liberal approach concerning political rights. Based on this case law, the paper will provide some main conclusions and give an outlook on the future of the Court.
Table of Contents
I. Introduction
II. The Court with bound hands – Art 34(6) of the Protocol and other legal obstacles
1. Art 34(6) of the Protocol
2. Challenging Art 34(6) of the Protocol
3. Referring cases to the Commission
4. “The Court is a creature of its Protocol”
III. The Court on human rights
1. The “Employment Contract” Court?
2. The African Court of Human and Peoples’ Rights
IV. Overall conclusions
Research Objectives and Core Themes
This paper aims to evaluate the effectiveness and institutional development of the African Court of Human and Peoples’ Rights ten years after its establishment. By analyzing the Court's case law, the research examines the tension between human rights protection and state sovereignty, focusing on how procedural obstacles and misconceptions about the Court's mandate have shaped its performance and future prospects.
- The impact of Art 34(6) of the Protocol on citizen access to the Court.
- The conflict between African state sovereignty and supranational human rights enforcement.
- Distinctions between the Court's judicial function and the public's perception of it as an appellate civil court.
- The Court's potential for judicial activism in cases involving political rights and local constitutional law.
Excerpt from the Publication
II. THE COURT WITH BOUND HANDS – ART 34(6) OF THE PROTOCOL AND OTHER LEGAL OBSTACLES
Michelot Yogogombaye v. the Republic of Senegal was the first case to put into evidence the main obstacle that keeps the Court from exercising its task properly: Art 34(6) of the Protocol. According to Art 5(3) of the Protocol, Non Governmental Organizations (“NGO”) and individuals may only bring cases before the Court in accordance with Art 34(6) of the Protocol. However, according to Art 34(6), individuals and NGOs cannot bring a suit under Art 5(3) against a State unless that State has made a declaration accepting the jurisdiction of the Court, in contrast to State parties and African intergovernmental organizations, which enjoy “automatic” access to the Court once a State ratifies the Protocol. Up to this day, only 7 out of 54 have made such a declaration.
In Michelot Yogogombaye v. the Republic of Senegal, a 13 page long judgment, the Court diligently examines each procedural condition, but in the end comes to the conclusion that “Senegal was not on the list of the countries that have made the said declaration. Consequently, the Court concludes that Senegal has not accepted the jurisdiction of the Court to hear cases instituted directly against the country by individuals or [NGOs]. In the circumstances, the Court holds that, pursuant to Article 34 (6), it does not have jurisdiction to hear the application”.
The Court’s decision gives the sad impression of a Court that is willing to decide on the merits but finds no way around the procedural obstacle. This behavior could be characterized as reluctant judicial restraint. The Court explains that there is no alternative way of interpreting art 34(6) of the Protocol, the text being sufficiently clear. It tries to read the concerned article in every way possible, even thinking of absurd interpretations such as rejecting only the physical reception of the petition: “The word ‘receive’ should not […] be understood in its literal meaning as referring to ‘physically receiving’ ”. By doing this, the Court goes very far in its explanation, giving the impression that it is trying to apologize for its “failure” to deal with the issue.
Chapter Summaries
I. Introduction: Outlines the historical context of human rights in Africa and the evolution of the African human rights system, leading to the creation of the Court as a response to the Commission's perceived limitations.
II. The Court with bound hands – Art 34(6) of the Protocol and other legal obstacles: Analyzes the procedural barrier posed by Article 34(6), which requires specific state declarations for individual access, and examines how this has forced the Court into reluctant judicial restraint.
III. The Court on human rights: Contrasts cases involving individual civil law disputes, which often lead to confusion regarding the Court's role, with landmark human rights cases where the Court demonstrates a willingness to engage in principled judicial legislation.
IV. Overall conclusions: Synthesizes the findings, arguing that the Court’s future depends on member states accepting wider jurisdiction, while emphasizing that the Court has the potential to become a powerful instrument for human rights if it overcomes its current procedural limitations.
Keywords
African Court of Human and Peoples’ Rights, Art 34(6), state sovereignty, human rights, judicial restraint, judicial activism, individual access, African Union, litigation, Tanganyika Law Society, civil rights, legal procedure, constitutional amendments, international justice, regional human rights protection.
Frequently Asked Questions
What is the core subject of this paper?
The paper evaluates the performance of the African Court of Human and Peoples’ Rights during its first decade, focusing on its jurisdictional challenges and its evolving jurisprudence.
What are the central themes discussed?
The central themes include the impact of procedural barriers on the Court's access, the conflict between state sovereignty and international human rights law, and the struggle of the Court to define its role in the African political landscape.
What is the primary research goal?
The goal is to determine how the Court has contributed to human rights development in Africa and to identify the procedural and political factors that currently limit or enable its effectiveness.
Which scientific methodology is applied?
The author uses a qualitative legal analysis, examining the Court's case law, dissenting opinions, and the underlying Protocol to assess judicial behavior and institutional legitimacy.
What topics are covered in the main section?
The main sections cover the restrictive nature of Art 34(6) of the Protocol, the Court's habit of referring inadmissible cases back to the Commission, and the distinction between frivolous civil law petitions and genuine human rights cases.
What characterize the keywords of this work?
The keywords highlight the intersection of institutional law, regional human rights enforcement, and the specific political challenges faced by African states in a post-colonial context.
Why is Art 34(6) considered such a significant barrier for the Court?
It acts as a bottleneck by preventing individuals and NGOs from directly accessing the Court unless their home state has explicitly filed a declaration recognizing such jurisdiction, which most states have refused to do.
How does the author interpret the Court's handling of civil law claims?
The author views these claims as evidence of a failure in public communication; the population often misperceives the Court as a final appellate tribunal for personal grievances, which leads to case rejections and risks damaging the Court's reputation.
What makes the Tanganyika Law Society v. Tanzania case a turning point?
It represents the first instance where the Court successfully overcame procedural hurdles to address substantive human rights issues, proving that it is capable of bold, progressive judicial interpretation when allowed to exercise its mandate.
- Quote paper
- Sonja Kahl (Author), 2014, African Court of Human and Peoples' Rights. Development and procedural problems, Munich, GRIN Verlag, https://www.grin.com/document/502385
