The Exchange

The African Court of Human and People’s Rights (ACHPR) was established in the Charter’s 1998 protocol that came into force in January 2004 upon the ratification of 15 member states. Yet despite being set up ten years ago the ACHPR has yet to hear a single case. In principle, judges have been appointed to the Court, the rules of procedure of the court have been laid down and the location of the Court has been set as Arusha, Tanzania. So, what now?

The lack of judicial activity on the part of the Court has proved particularly disappointing for Minority Rights Group International (MRGI) who recently claimed that a lack of a functioning judiciary affects the protection of minority rights on the African continent. According to MRGI, minority rights need special protection because local courts are ‘often insensitive and out of touch with the claims and rights of the people.’ Also state complicity in mass human rights violations committed against minority groups has rendered minority human rights protection at the domestic level superfluous. More broadly, human rights protections by the ACHPR is more poignant now than ever because of the tension caused between the International Criminal Court (ICC) and certain African states over the arrest of Sudanese president Omar al-Bashir. Along with his own ICC indictment, his Minister of Interior Ahmad Haroun and a janjaweed commander Ali Khusyab, President al-Bashir remains an ardent defender of the rule of law, almost indignant toward outsider media that portray Sudan as boiling over; contending instead that ‘in the field it’s not’.

From the mid 1990s the Commission faced problems enforcing its quasi-judicial decisions, leaving the prospect of a court with binding judicial powers to complement the rights protection of the Commission even more greatly anticipated. The Court has yet to live up to what was expected of it.

MRGI claims that the inactivity of the court has been twofold; firstly, there seems to be a functional rivalry between the Commission and the Court with neither making the first move to harmonise their conflicting mandates. Secondly, many African Union members have not ratified the protocol thereby acknowledging the jurisdiction of the ACHPR. Since 1998 only 24 out of the 53 African Union states have ratified the protocol. The lack of interest on, the part of some African states, stems from the fact that they do not want to be subject to two human rights regimes; one under the Commission and the other carried out by the Court. MRGI fear that this would cause the Commission to ‘feed cases’ to the Court thereby compromising the Court’s ability to establish itself as an independent fundamental rights protecting body.

Recently there has been a spate of killings of Somali nationals in South Africa. The UN High Commissioner for Human Rights, Navanethem Pillay, states that the attacks seem to be part of a ‘dangerous pattern’ of attacks on foreigners. In light of these occurrences the need for a fully functioning court is greatly highlighted. MRGI have enumerated solutions such as greater cooperation between the Commission and the Court as well as insisting on a move towards harmonizing the working relationship between the two organs via dissemination of each of the organ’s work through modern technology through user friendly websites and list serves. It is also suggested that the Commission and the Court go some way towards harmonizing their rules of procedure especially those relating to access to the court by individuals and Non-governmental Organisations.

The harmonization of the different protocols of the Commission and the Court may prove to be too time consuming and may delay rights protection even further. The MRGI does not provide a solution to the procedural delay which could sson be encountered. Much remains to be seen - least of all the waiting game for an effective Court-Commission relationship that does not unravel itself at the expense of many more human rights violations.