Today's lecture, provides an introduction to the African human rights system.
Here's an overview of what we'll discuss.
I'll provide an introduction to the African Charter, on
Human and People's Rights, and some of its key provisions.
We'll then discuss the activities of the African Commission on
Human Rights, and some of the challenges the commission has faced.
And then we'll review some of the distinctive jurisdiction and access rules,
of the relatively recently created African Court of Human and Peoples' Rights.
Let's turn first, to an overview of the African Charter.
This is the most recent of the three major regional human rights systems.
The charter was adopted in 1981, and entered into force in 1986, and
as of today 2014, 54 African nations are members.
That's virtually every country on that continent.
The African Charter's provisions are quite distinctive.
Some of them are quite similar to the civil and political
rights, and the economic and social rights, that we have already studied.
But the charter also includes, certain provisions on collective
and development rights, as well as limitations and individual duties.
We'll discuss some of those in the next lecture.
Let's turn to an overview of the activities
of the African Commission on Human and Peoples' Rights.
The Commission began operations in the mid
1980s, when the charter entered into a force.
And it carries out functions that should by now, be quite familiar to you from your
study of the other regional systems and the United Nations Human Rights System.
The commission reviews reports from states parties, regarding
their implementation and compliance with the African charter.
It conducts investigations of specific human
rights issues and challenges in individual countries.
And, it reviews communications from individuals and NGOs.
And in response to those communications, which allege violations of
the charter, it issues non binding decisions and recommendations to states.
Those are some of the commission's key activities, how
has the commission carried out those activities in practice?
Well, there have been a number of criticisms and
challenges of this regional, one is that, the commission's
work is given insufficient visibility, both its promotional activities
and its decisions and response to individual or NGO petitions.
There have been several instances of delays in reviewing complaints,
by those applicants, and in issuing decisions.
Somewhat limited follow up with State's parties human
rights commitments, and obligations decisions of course are
non-binding although that is true for the Intra-American
Commission on Human Rights and the UN Treaty Bodies.
And perhaps most notably rather limited or sporadic compliance by States Parties.
Those are some of the challenges the commission has faced.
They might be attributed in part to the fact
that it's a fairly new institution, they might also
be attributed to the fact that human rights problems
on the continent of Africa can be quite widespread.
And they may also be attributed the fact that, the Commission does not have,
sufficient resources to carry out its mandate in the way that it would like.
They're probably others explanations as well, but I think it is important for you
to think about what those explanations might be, and how they might be overcome.
And indeed that was one of the goals of
ultimately establishing, a regional human rights court for Africa.
During the 1960s through say the 1980s, African governments
were generally quite resistant to submitting themselves to the jurisdiction
of a regional court, that would issue legally binding judgements.
Now that wariness began to diminish with the end of the Cold War.
The growing number of democracies in Africa, you should see some
parallels here to the transitions we talked about in Latin America.
The increasing visibility of human rights NGO's in Africa.
An external financial and other forms of
support for justice projects including human rights.
And so by late 1990's the decision was made
to create an african court of human and people's rights.
As you can see from this timeline, the way in which the court was established, was
by virtue of the adoption of a protocol
to the African Charter, that would establish the court.
That protocol took about six years until it entered into force,
two more years passed before the court's first 11 judges were sworn
in, and the first decision on admissibility, was issued in 2009
and that was a decision dismissing a case for lack of Jurisdiction.
The marriage judgment, or first decision entertaining the merits
of an allegation regarding the violation of the African Charter,
was issued in the Summer of 2013, and we'll
read that decision in the next lecture and discuss it.
I want to talk a little bit about the structure of the court's jurisdiction.
Before doing that I'd like to show you this photograph of the
court, it's judges and staff at the court's headquarters in Arusha, Tanzania.
Let's talk about the jurisdiction and access rules,
of the African Court of Human and People's Rights.
So one question you might have, is which states have recognized the
jurisdiction of the court to review
complaints alleging violations of the African Charter?
The answer to that question is that, the court has
jurisdiction over those states that have ratified the African Court Protocol.
So, which are the states that have ratified that protocol.
Here you see in green, those states
that have both signed and ratified the protocol.
Those are the governments of about half of the
54 member states, that have accept the court's jurisdiction.
A large number of other states have signed, but not ratified the protocol.
And if you remember from our discussion in week
one, signature indicates an intent to precede to ratification.
And ratification is the act that makes the treaty binding.
So these countries have expressed some intention to eventually recognize
the court's jurisdiction, but they have not yet done so.
Now, let's talk about how a case actually gets to the
African court, once a country has in fact ratified the protocol.
So, how do those cases get to the court?
Well, there are a number of different ways, as we'll see.
The main way is that cases are referred to the
court by the afran, African Commission on Human and Peoples' Rights.
This is a similar procedure to what we saw in the
Americas, when the Inter-American Commission
referred cases to the Inter-American Court.
However, there's an innovation here that doesn't exist in
the Americas, and that is that a state can file
an additional optional declaration, that authorizes the court to receive complaints
filed by individuals and NGOs directly with the court.
And that optional declaration you can see set forth in the combination of these two
articles, articles 5-3, and article 34 (6) of the African Charter.
Article 5 (3) refers to the ability of the court to receive
cases directly before it, in accordance with Article 34 (6) of the Protocol.
And 34(6) of the protocol, indicates that the, a State may make a declaration that
accepts the comp, the competence of the Court, to receive cases in this context.
And that is, with regard to individuals and NGOs
bypassing the commission and going directly to the court.
You might wonder, if you were considering litigating a case, which
states have filed that optional declaration,
especially if you were an attorney,
say, representing an individual, or a member of an NGO that
works on human rights matters, this might be quite important to you.
And in fact, on the web site of the African
court, you can find a document which I've excerpted here, that
shows that seven states have accepted this optional power for
the African Corps to receive complaints directly from individuals and NGOs.
So that's still quite a small number, but as you can see, there's some quite
recent ratifications with two in 2013, and I
expect that this number will grow over time.
That's what I'd like to cover by way
of introduction to the African Human Rights system.
I'll leave you with these resources, where you can find out additional information.