Basic Facts

Basic Facts about the African Court on Human

and Peoples’ Rights

 

Establishment

 The African Court on Human and Peoples' Rights (the Court) is a continental court established by Member States of the African Union to ensure the protection of human and peoples’ rights in Africa. The Court was   established by virtue of Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol). In fact, the African Charter on Human and Peoples’ Rights, which is the fact the main African human rights instrument that sets out the rights and duties relating to human and peoples’ rights in Africa, provides a framework within which the African Court on Human and Peoples' Rights was created.  
The mandate of the Court is to complement and reinforce the functions of the African Commission on Human and Peoples’ Rights (the African Commission – often referred to as the Banjul Commission), which is a quasi-judicial body charged with monitoring the implementation of the Charter.
The Protocol establishing the African Court on Human and Peoples’ Rights was adopted on 9 June 1998 in Burkina Faso and came into force on 25 January 2004 after it was ratified by more than 15 countries. 

 Mandate

The African Court on Human and Peoples' Rights was  established to complement and reinforce the functions of the   African Commission on Human and Peoples’ Rights (the African Commission – often referred to as the Banjul Commission), which is a quasi-judicial body charged with monitoring the implementation of the Charter.

 Seat of the Court

 The Court has its seat in Arusha, in the United Republic of Tanzania.

 

 The current situation regarding the ratification of the Protocol

 Since the adoption of the Protocol in 1998, only twenty six (26) of the fifty-four (54) Member States of the African Union have ratified it. The States are Algeria; Burkina Faso; Burundi; Côte d’Ivoire; Comoros; Congo, Gabon; The Gambia; Ghana; Kenya; Libya; Lesotho; Malawi; Mali; Mauritania; Mauritius; Mozambique; Nigeria; Niger; Uganda; Rwanda; Senegal; South Africa; Tanzania; Togo; and Tunisia.

 Composition of the Court

 The Court is composed of eleven (11) Judges, nationals of Member States of the African Union. The Judges are elected by the Assembly of Heads of State and Government of the African Union for a period of six (6) years, and may be re-elected only once. The Judges are elected after nomination by their respective States, in their individual capacities from among African jurists of proven integrity and of recognized practical,   judicial or academic competence and experience in the field of human and peoples’ rights.

 The Judges elect a President and a Vice-President from among themselves who serve a two years term. They can be re-elected only once. The President of the Court resides and works on a full time basis at the seat of the Court, while the other ten (10) judges work on a part-time basis. When performing his or her duties, the President is assisted by a registry which performs managerial and administrative functions of the Court.

 

The Judges

The current membership of the Court is as follows:

Hon.Judge Sophia A.B. Akuffo - President (Ghana)

Hon. Judge Fatsah Ouguergouz - Vice-President (Algeria)

Hon. Judge Gérard Niyungeko (Burundi)

Hon. Judge Bernard M. Ngoepe (South Africa)

Hon. Judge El Hadji Guissé (Senegal)

Hon. Judge Joseph N. Mulenga (Uganda) (deceased)

Hon. Judge Augustino S.L. Ramadhani (Tanzania)

Hon. Judge Duncan Tambala (Malawi)

Hon. Judge Elsie N. Thompson (Nigeria) and

Hon. Judge Sylvain Ore (Côte d’Ivoire)

Hon. Judge Ben Kioko (Kenya)

 

The Registrar

 In their functions, Judges are assisted by a Registrar and other members of the registry (the Court’s staff). The current Registrar is Dr Robert Eno (Cameroon). He was recruited as Deputy Registrar of the Court in July 2010. He was then appointed as the Acting Registrar in January 2011. In January 2012, Dr. Robert Eno was confirmed as Registrar.

 Achievements of the Court

 The Court officially started its operations in Addis Ababa, Ethiopia in November 2006, but in August 2007 it moved to its seat in Arusha, the United Republic of Tanzania, where the Government of the Republic has provided it with temporary premises pending the construction of a permanent structure.

 Between 2006 and 2008, the Court dealt principally with operational and administrative issues, including the development of the structure of the Court's Registry, preparation of its budget and drafting of its Interim Rules of Procedure.

 In 2008, during the Court's Ninth Ordinary Session, Judges of the Court provisionally adopted the Interim Rules of Court pending consultation with the African Commission on Human and Peoples' Rights in order to harmonize their rules to achieve the purpose of the provisions of the Protocol establishing the Court. This harmonization process was completed in April 2010 and in June 2010, the Court adopted the final Rules of Court.

 The Court delivered its first judgment in 2009 following an application dated 11 August 2008 by Mr Michelot Yogogombaye against the Republic of Senegal. The Applicant wanted the Court to suspend proceedings instituted by Senegal against Mr. Hissen Habre, former President of the Republic of Chad, who is in asylum in Senegal.       

 Pursuant to Article 34 (6) of the Protocol and Rule 33 (f) of the Rules of Court, the Court found that the application was not admissible as the Court had no jurisdiction to hear it since Senegal had not made the declaration recognizing the jurisdiction of the Court to receive applications submitted directly by individuals or Non-Governmental              Organizations.

 As at May 2012, the Court had received 22 applications. It has already finalized 10 cases. Currently it has a certain number of pending cases on its table to examine including one Request for advisory opinion. 

 JURISDICTION

1. I.Contentious Jurisdiction of the Court

 Under Article 3 of the Protocol, the Court has jurisdiction to deal with all cases and disputes submitted to it regarding the interpretation and   application of the Charter, the Protocol and any other relevant human rights instrument ratified by the concerned States.

 A. Access to the Court - Who can bring cases to the Court?

 Pursuant to Article 5(1) of the Protocol, the following are entitled to submit cases to the Court:

1.The Commission;

1. 2.The State Party to the Protocol which had lodged a complaint to the Commission;
2. 3.The State Party to the Protocol against which the complaint has been lodged at the Commission;
3. 4.The State Party to the Protocol whose citizen is a victim of a human rights violation;
4. 5.African Intergovernmental Organizations.

 Pursuant to Article 5(2) of the Protocol, when a State Party to the Protocol has an interest in a case, it may submit a request to the Court to be permitted to join the proceedings.

 Article 5(3) of the Protocol provides that relevant Non-Governmental organizations (NGOs) with Observer Status before the Commission, and individuals can institute cases directly before the Court, if the State Party they are complaining against has made the declaration under  Article 34(6) allowing such applications.

 It should be noted that as at May 2012, only five (5) of the 26 States Parties to the Protocol, that is, Burkina Faso, Ghana,  Malawi, Mali and Tanzania, had made the declaration allowing direct access to the Court to NGOs and individuals.

 

B. How to bring cases to the Court?

 States, NGOs, individuals and other entities with capacity to bring cases to the Court must address their application to the Registry of the Court, ensuring that the application is signed and is in one of the official languages of the Court.

 All applications submitted to the Court must comply with the following seven admissibility requirements provided under Article 56 of the African Charter, that is:

 1.Disclose the identity of the applicant, even where the applicant has requested anonymity;

1. 2.Comply with the Constitutive Act of the African Union and the Charter;
2. 3.Not written in any disparaging or insulting language;
3. 4.Not be based exclusively on news disseminated through the mass media;
4. 5.Be filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;
5. 6.Be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter; and
6. 7.Not raise any matter or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union.

 In addition to the above admissibility requirements, applications should indicate:

 1.The names and addresses of the persons designated as the applicant’s representatives;

1. 2.A summary of the facts of the case and of the evidence that willadduced;
2. 3.Clear particulars of the applicant and of the party or parties against whom the application has been brought;
3. 4.Specification of the alleged violation;
4. 5.Evidence of exhaustion of local remedies or of thedelay of such local remedies;
5. 6.The orders or injunctions sought; and
6. 7.Where an applicant on his/her own behalf or on behalf of the victim wishes to be granted reparation, the application should include the request for reparation.

  C. Findings of the Court

 When the Court finds that there has been a violation of human and/or peoples’ rights, it will issue appropriate orders to remedy the violation, including the payment of fair and adequate compensation or reparation.

 In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court can adopt provisional measures as necessary. An example of a situation where provisional measures could be adopted is when the alleged victim is facing execution of a death sentence.

 D. Judgment of the Court

 Under Article 28(1) of the Protocol, the Court shall render its judgment within ninety (90) days of having completed its deliberations. Its judgment is final and not subject to appeal.

 However, where new evidence which was not within the knowledge of a party at the time the judgment was delivered emerges, the party may apply for review of the judgment. This application for review must be submitted within six months after that party becomes aware of the new evidence.

 The Judgment of the Court is legally binding and the Executive Council of the African Union is charged with monitoring the     implementation of the judgment on behalf of the Assembly.

E. Amicable settlements

 Under Article 9 of the Protocol, the Court is empowered to try to reach an amicable settlement in a case pending before it in accordance with the provisions of the Charter.

 II.Advisory Jurisdiction of the Court

 Under Article 4 of the Protocol, the Court may, at the request of a Member State of the African Union, any of the organs of the African Union, or any African organization recognized by the African Union, provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission. 

 Applicable Law

  Article 7 of the Protocol provides that the Court shall apply the provisions of the Charter and any other relevant human rights instruments ratified by the States concerned.

 Relationship between the Court and the African Commission

 Pursuant to Article 2 of the Protocol, the Court is established to complement the protective mandate of the Commission.

 The African Commission can bring cases to the Court for the latter’s consideration. In certain circumstances, the Court may also refer cases to the Commission, and may request the opinion of the latter when dealing with the admissibility of a case.

 The Court and the Commission have met and harmonised their respective rules of procedure, and institutionalised their relationship. In terms of their Rules, the Commission and the Court shall meet at least once a year, to discuss questions relating to their relationship.

 The African Court of Justice and Human Rights

 One of the organs recognised in the Constitutive Act of the     African Union is the Court of Justice of the African Union. The latter was intended to be the principal judicial organ of the African Union to settle disputes over the interpretation of AU treaties.

 A protocol to set up this Court was adopted in Maputo, Mozambique, in July 2003 and entered into force on 11 February 2009. The Court was however, never operationalized because the Assembly of the African Union decided that it should be   merged with the African Court on Human and Peoples’ Rights, to form the African Court of Justice and Human Rights (ACJHR). Underlying this decision was the concern at the growing number of AU institutions, which the AU could not afford to support.

 The Protocol of the Court of Justice was therefore merged with the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples Rights, to establish the Statute on the African Court on Justice and Human Rights. The latter was adopted in Sharm El-Sheikh, Egypt during the 11th AU Summit of the Assembly in July 2008. As at May 2012, only three Member States of the African Union, that is, Burkina Faso, Libya and Mali, had ratified the Protocol.

 The Protocol shall come into force 30 days after the deposit of the instruments of ratification by fifteen Member States.

 

Extension of Jurisdiction of the Court to Deal with Criminal Matters

 By Decision Assembly/AU /Dec.213 (XII) of February 2009, taken in Addis Ababa, Ethiopia, the Assembly of Heads of State and Government of the African Union requested the AU Commission, “in consultation with the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights, to assess the implications of recognizing the jurisdiction of the Court to try international crimes such as genocide, crimes against humanity and war crimes and to submit a report to the Assembly in 2010”.

 By its Decision Assembly/AU/Dec.292 (XV) of July 2010, the   Assembly requested the African Union Commission to finalize the study on the implications of extending the jurisdiction of the    African Court on Human and Peoples’ Rights to cover             international crimes such as genocide, crimes against humanity and war crimes and to submit, through the Executive Council, a report thereon to the next regular session of the Assembly,  scheduled for January 2011”.

 

To implement those decisions of the Assembly, the African Union Commission engaged a consultant to undertake a study on the implications of extending the jurisdiction of the African Court of Justice and Human Rights (yet to be established), including   considering whether unconstitutional change or prolongation of government, could be considered a new crime.

 The consultant completed the study and in August and November 2010, the AUC organised workshops with key     stakeholders to validate the study.

 Key Dates

 1981 (June): Adoption by the Assembly of African Heads of State and Government of the African Charter on Human and Peoples' Rights.

1998 (June): Adoption of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples’ Rights.

2004 (January): The Protocol came into force.

2006 (January): Election of the first Judges of the Court by the Assembly of Heads of State and Government in Khartoum, Sudan.

2006 (July): The first Judges of the Court were sworn in before the Assembly of Heads of State and Government of the African Union in Banjul, The Gambia.

2006 (November): The Court officially started its operations in Addis Ababa, Ethiopia.

2007 (August): The African Court moved to its seat in Arusha, the United Republic of Tanzania.

2008 (June): The African Court adopted its Interim Rules of Court pending consultation with the African Commission on Human and Peoples' Rights for harmonization.

2008 (August): The African court received its first application made by Mr Michelot Yogogombaye against the Republic of Senegal.

2009 (December): The Court delivered its first judgment on the Yogogombaye application.

2010 (April): The harmonization process of the Rules of Court and the Rules of Procedure of the Commission was      completed.

2010 (June): The Court adopted its final Rules of Court.

2011 (December): First session outside Tanzania

2012 (March): First public hearing

 List of Cases

Application No 001/2008- Michelot Yogogombaye versus the Republic of Senegal (Finalized on 15 December 2009)

Application No 001/2011 - Femi Falana v. African Union (Pending)

Application No 002/2011 - Soufiane Ababou v. People’s Democratic    Republic of Algeria (Finalized on 16 June 2011)

Application No 003/2011 - Urban Mkandawire v. Malawi (Pending)

Application No 004/2011 – African Commission on Human and Peoples’ Rights v. Great Socialist People's Libyan Arab Jamahiriya (Pending)

Application No 005/2011 - Daniel Amare and Mulugeta Amare v. Republic of Mozambique & Mozambique Airlines (Finalized on 16 June 2011)

Application No 006/2011 - Association Juristes d’Afrique pour la Bonne Gouvernance v. Republic of Cote d’ivoire (Finalized on 16 June 2011)

Application No 007/2011 - Youssef Ababou v. The Kingdom of Morocco (Finalized on 02 September 2011)

Application No 008/2011 - Ekollo M. Alexandre v. Republic of Cameroon and Federal Republic of Nigeria (Finalized on 23 September 2011)

Application No 009/2011 – Tanganyika Law Society and Legal and Human Rights Centre v. The United Republic of Tanzania (Joined with No 011/2011)

Application No 010/2011 - Application 010/2011 - Efoua Mbozo'o Samuel v. Pan African Parliament (Finalized on 30 September 2011)

Application No 011/2011 – Rev. Christopher R. Mtikila v. The United   Republic of Tanzania (Joined with No 009/2011)

Applications No 009&011 – Tanganyika Law Society and The Legal and Human Rights Centre and Reverend Christopher Mtikila V. The United Republic of Tanzania (Pending)

Application No 012/2011 - National Convention of Teachers Trade Union v. The   Republic of Gabon (Finalized on 03 August 2011)

Application No 013/2011 - Abdoulaye Nikiema, Ernest Zongo, Blaise   Ilboudo & Burkinabe Human and Peoples’ Rights Movement v.The      Republic of Burkina Faso (Pending)

Application No 014/2011 – Atabong Denis Atemnkeng v. African Union (Pending)

Application No 001/2012 - Karata Ernest and others v.   Attorney General of the United Republic of Tanzania (Pending)

Application No 002/2012 - Delta International Investments S.A., Mr and Mrs A.G.L. De Lange v.The Republic of South Africa (Finalized on 30 March 2012)

Application No 003/2012 - Peter Joseph Chacha v        Tanzania 003/2012 (Pending)

Application No 004/2012 - Emmanuel Joseph Uko and  Others v.The Republic of South Africa (Finalized on 30 March 2012)

Application No 005/2012 - Amir Adam Timan v.The        Republic of Sudan (Finalized on 30 March 2012)

 

 NOTE: Application No 009/2011 – Tanganyika Law Society and Legal and Human Rights Centre v. The United Republic of Tanzania and Application No 011/2011 – Rev. Christopher R. Mtikila v. The United Republic of Tanzania have been joined by an Order of the Court and they are now referred to as Application 009/2011 & 011/2011 - Tanganyika Law Society and the Legal and Human Rights Centre & Reverend       Christopher Mtikila v. the United Republic of Tanzania.

                                  Advisory Opinions

 Request   No  001/2011 by the Republic of Mali (Withdrawn)

Request   No  002/2011 by the Great Socialist Peoples’ Libyan Jamahiriya (Struck out)

Request No 001/2012 by the Socio- Economic Rights and Accountability Project (SERAP) (Pending)

 

 

 

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