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UNDERSTANDING AND OVERCOMING CHALLENGES IN ACCESSING THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS

  • Frans Viljoen (a1)
Abstract

This contribution examines access to the African Court on Human and Peoples’ Rights in the first decade of its operation. Compared with other regional human rights Courts over the corresponding period, the African Court has decided more contentious cases. Direct access accounts for this difference. Acceptance by States of optional direct access is a necessary but insufficient condition for actual access. The reasons for the Commission's reluctance to refer cases, which hampered indirect access to the Court, are investigated. Although the Court's advisory jurisdiction has found limited application, it has welcomed amici curiae and showed some acceptance of the role of original complainants before the Court.

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1 The African Charter was adopted on 27 June 1981, in Nairobi, Kenya; and entered into force on 21 October 1986, after a simple majority of OAU member States had ratified or acceded to it.

2 The African Court was established by the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights, which was adopted on 10 June 1998, in Ouagadougou, Burkina Faso, and entered into force on 25 January 2004 when the requisite 15 States had ratified the Protocol. The period between 2004 and 2006 was one of inactivity. Judges were only elected in January 2006 (Assembly/AU/Dec.100 (VI)), after the process was delayed due to the AU Assembly's decision in July 2004 that the African Court and the AU Court of Justice should be integrated into one Court (Assembly/AU/Dec.45 (III)). Only in July 2005 did the Assembly decide (Assembly/AU/Dec.83(V)) that the election of the Judges should take place, pending the merger of the two Courts. The first 11 elected Judges were inaugurated on 2 July 2006; and the Court had its first session from 2 to 5 July 2006, in Banjul, The Gambia.

3 Court Protocol, art 2; see also Viljoen, F, International Human Rights Law (Oxford University Press 2012) 414–20.

4 By analysing actual practice, this article differs from a more speculative contribution on access to the African Court, published in 2007 ( Juma, D, ‘Access to the African Court on Human and Peoples’ Rights: A Case of the Poacher turned Gamekeeper’ (2007) 4 Essex Human Rights Review 1 ).

5 In terms of art 5(2) of the Court Protocol, as a State party that ‘has an interest’ in the case: in Guehi v Tanzania, App 1/2015, Côte d'Ivoire intervened on this basis, as its national was bringing an application, and the Court considered the issuance of a provisional order.

6 Amicable settlement, which may also be viewed as a form of remedy, has so far not been reached under the Court's auspices, and is not discussed here.

7 The Court delivered 13 orders for provisional measures: African Commission v Lybia ((Bengazi), App 4/2011, Order for Provisional Measures (25 March 2011); African Commission v Lybia ((Saif Al-Islam Kadhafi), App 2/2013, Order for Provisional Measures (15 March 2013); African Commission v Kenya (Ogiek). App 6/2012, Order for Provisional Measures (15 March 2013); Konate v Burkina Faso, App 4/2013, Order for Provisional Measures (4 October 2013); a further two of these Orders for Provisional Measures are cited in note 46 below. Even if they are only interim in nature, provisional orders are also remedial. However, given the different issues involved, and the number of orders, these orders are not included in the scope of this article.

8 The number of AU member States has, with the readmission of Morocco in January 2017, increased to 55.

10 Yogogombaye v Senegal, App 1/2008, Judgment (15 December 2009).

11 Inbabire Victoire Umuhoza v Rwanda, App 3/2014, Ruling on the Effects of the Withdrawal of the Declaration under Article 34(6) of the Protocol (3 June 2016) (Umuhoza Withdrawal).

12 para 58: ‘As far as unilateral acts are concerned, state sovereignty commands that state are free to commit themselves and that they retain discretion to withdraw their commitments’.

13 Vienna Conventions on the Law of Treaties, art 56(2) (by analogous reasoning, also applicable to unilateral declarations to treaties) requiring a one-year notice period of denunciation or withdrawal from a treaty.

14 By the end of 2016, no new cases had been submitted to the Court; however, just before 1 March 2017, a number of cases were submitted.

16 See Kayumba Nyamwasa & others v Rwanda, App 16/2015 (dealing with the amendment of art 101 of the Constitution of Rwanda, which provided that a presidential term is for seven years, renewable only once); see the case summary <http://en.african-court.org/images/Cases/Case%20Summaries/KAYUMBA%20NYAMWASA%20&%20OTHERS%20V.%20REPUBLIC%20OF%20RWANDA.pdf>.

17 See eg Umuhoza Withdrawal (n 11) (dealing with her conviction and sentence to 15 years for the crimes of spreading ideology of genocide, abetting terrorism, undermining State security, spreading rumours which may incite the population against political authorities, attempted recourse to terrorism and the establishment of an armed branch of a rebel movement); and Kennedy Gihana & others v Rwanda, App 17/2015 (dealing with the cancellation of passports of Rwanda nationals abroad); Laurent Munyandilikirwa v Rwanda, App 23/2015 (dealing with the State's recognition of and support for the illegal ouster of the president of a Rwandese NGO, the Rwandan League for the Promotion and Defense of Human Rights (LIPRODHOR), allegedly for being critical of the government).

18 That is, seven out of eight cases.

19 Mtikila v Tanzania, App 11/2011, Judgment on Merits (14 June 2013).

20 Zongo v Burkina Faso, App 3/2011, Judgment on Merits (28 March 2014).

21 Konate v Burkina Faso, App 4/2013, Judgment on Merits (5 December 2014).

22 Thomas v Tanzania, App 5/2013, Judgment on Merits (20 November 2015).

23 Onyango Nganyi v Tanzania, App 6/2013, Judgment on Merits (18 March 2016).

24 Abubakari v Tanzania, App 7/2013, Judgment on Merits (3 June 2016).

25 Actions pour la Protection des Droits de l'Homme (APDH) v Côte d'Ivoire App 1/2014, Judgment on Merits (18 November 2016).

26 African Commission (Saif Al-Islam Kadhafi) v Libya, App 2/2013, Judgment on Merits (3 June 2015). See also the Court's 2017 decision in African Commission v Kenya (Ogiek), App 6/2012 (26 May 2017) (finding Kenya in violation of various provisions of the African Charter); in respect of a matter in which the Commission had issued interim measures.

27 Soufiane Ababou v Algeria, App 2/2011.

28 Ekollo v Cameroon and Nigeria, App 8/2011.

29 Association Juristes d'Afrique pour la Bonne Gouvernance v Côte d'Ivoire App 6/2011. Côte d'Ivoire subsequently made the declaration.

30 National Convention of Teachers Trade Union v Gabon, App 12/2011.

31 Daniel Amare and Mulugeta Amare v Mozambique and Mozambique Airlines, App 5/2011.

32 Ekollo M. Alexandre v Cameroon and Nigeria, App 8/2011.

33 Michelot Yogogombaye v Senegal, App 1/2008.

34 Delta International investments (SA), AGL De Lange and M. De Lange v South Africa, App 2/2012, as well as Emmanuel Joseph Uko and others v South Africa, App 4/2012.

35 Amir Adam Timan v Sudan, App 5/2012.

36 Baghdadi Ali Mahmoudi v Tunisia, App 7/2012.

37 Femi Falana v the African Union, App 1/2011.

38 Ababou v Morocco, App 7/2011, Decision (2 September 2011).

39 Efua Mbonzo'o Samuel v Pan-African Parliament, App 10/2011.

40 11 out of 22 cases.

41 Arguably, the latter possibility was in play in the Yogogombaye case, which was submitted to contest the contest the validity of efforts within Senegal to prosecute deposed Chadian dictator Hissène Habré.

42 See the dissenting opinion of Ouguergouz J in numerous cases, to this effect.

43 This application reached the Court on 29 December 2008 (after having been submitted initially to the AU Commission on 11 August 2008); it was concluded only on 15 December 2009.

44 See eg the extensive coverage in the Court's reports on promotional activities, generally, and sensitization visits, specifically (see eg Report of the Activities of the African Court on Human and Peoples’ Rights (2012) AU Doc EX.CL/783(XXII), adopted by the Executive Council in January 2013). By the end of 2016, this was the most recent report of the Court's activities available on its website.

45 While the EAC Court of Justice is also located in Arusha (and thus in close proximity), whose jurisdiction Tanzania has also accepted, and while this Court also allows for individual access, it lacks an unequivocal substantive basis on which human rights allegations may be based. Notwithstanding, the Court has exercised a human rights-based jurisdiction, and is set to do so more clearly, based on the African Charter, subsequently, in the decision of Democratic Party v Rwanda.

46 See eg Guehi v Tanzania, App 1/2015, Order for Provisional Measures (18 March 2016); and Rajabu and 4 others v Tanzania, App 7/2015, Order for Provisional Measures (8 March 2016).

47 Falana v African Union, App 1/2011, Judgment (26 June 2012).

48 Falana v African Union, App 1/2011, Judgment (26 June 2012); see also Atemnkeng v African Union, App 14/2011.

49 See eg A Kilangi, ‘Legal Personality, Responsibility and Immunity of the African Union: Reflection on the Decision of the African Court on Human and Peoples’ Rights in the Femi Falana case’ (2013) 1 AUCIL Journal of International Law: A Journal of International Law of the African Union Commission on International Law 95.

50 Falana v African Union, App 1/2011, Dissenting Opinion (Akuffo VP, Ngoepe, Thompson JJ) (26 June 2012) (Falana Dissenting Opinion). Two Judges (Mutsinzi and Ouguergouz JJ) wrote separate opinions in this matter, agreeing with the majority, but for different reasons.

51 Umuhoza Withdrawal, para 58.

52 Court Protocol, art 35; see also also the call of the dissenters ‘that the problems raised by Article 34(6) will receive appropriate attention’ (Falana Dissenting Opinion, para 17).

53 The African Commission has only ever found a violation against Ghana in one communication (Comm 103/93); four other complaints have been declared inadmissible; one complaint had been withdrawn.

54 Ebobrah, ST, ‘A Rights-Protection Goldmine or a Waiting Volcanic Eruption? Competence of, and Access to, the Human Rights Jurisdiction of the ECOWAS Community Court of Justice’ (2007) 7 AHRLJ 307 325–8.

55 Alter, KJ, Helfer, LR and McAllister, JRA New International Human rights Court for West Africa: The ECOWAS Community Court of Justice’ (2013) 107 AJIL 737 .

56 They are: Cape Verde, Equatorial Guinea, Guinea-Bissau, Guinea, Liberia, Sierra Leone and São Tomé e Principe.

57 See Gathii, JT, ‘Variation in the Use of Supranational Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice’ (2016) 79 LCP 37 . However, the introduction of an Appellate Division, and procedural limitations have detracted from the Court's impact, see EAC Court Appellate Division (Appeal 1/2011, Attorney General of Kenya v Independent Medico Legal Unit, Judgment of 15 March 2012), on appeal, the matter was struck out for not having been filed within the time limit of two months of the action or decision complained of, as prescribed under art 30(2) of the EAC Treaty. However, the EAC Court Appellate Division (Appeal 1/2012, Attorney General of Rwanda v Plaxeda Rugumba Judgment of June 2012), on another occasion confirmed that the 2-month period does not apply when it is unclear when information was provided about the situation of a person who is held incommunicado.

58 EAC Court Appellate Division, Democratic Party v Secretary-General EAC and Others, Appeal 1/2014 (28 July 2015) (Democratic Party case).

59 See Democratic Party case, eg para 73: ‘the East African Court of Justice has the jurisdiction to interpret the Charter in the context of the Treaty’; and para 71: ‘In as far as … Article 6(d) recognize the Charter's relevance in promotion and protection of human and peoples’ rights, then compliance with those provisions of the Charter become, ipso jure, an obligation imposed upon the Partner States under the Treaty.’

60 South Sudan, which had joined the EAC in 2016, has not ratified the African Court Protocol.

61 Democratic Party case (n 58) para 78 of the judgment: ‘We remind ourselves that at the Scheduling Conference of the Appellate Division, the Appellant abandoned the issue of costs against the Republic of Rwanda, which had deposited its declaration while the Reference was still pending before the First Instance Division’ (emphasis added).

62 Galanter, M, ‘Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about Our Allegedly Contentious and Litigious Society’ (1983) 31 UCLA Law Review 4 , 12.

63 Felstiner, WLF, Abel, RL and Sarat, A, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …’ (1980–81) 15 Law&SocyRev 631 , 632.

64 Galanter (n 62); Felstiner Abel and Sarat ibid.

65 Rules 112(2) and 118(1) of the Commission's 2010 Rules of Procedure. The period may be prolonged: Rule 112(3) and 118(4). The vague formulation of these Rules leaves the period of further delay indeterminate.

66 Rule 118(1), 2010 Rules of Procedure.

67 Rule 45, Rules of Procedure of the Inter-American Commission.

68 Rule 45(1) of the Rules of Procedure of the Inter-American Commission; the Commission ‘shall refer the case to the Court, unless there is a reasoned decision by an absolute majority of the members of the Commission to the contrary’.

69 Other factors, such as the need to ‘develop or clarify’ the existing case-law, which are considerations under the Inter-American system, are at this stage of lesser concern in an African context, given the dearth of cases and the limited jurisprudence.

70 Bates, E, The Evolution of the European Convention on Human Rights; From Its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press 2010) App 3.

71 Protocol 11 to the European Convention, which created a single permanent judicial institution, entered into force in 1998.

72 (2009) AHRLR 75 (ACHPR 2009).

73 Held at the Commission's 53rd Ordinary Session, 9 to 23 April 2013, in Banjul, The Gambia.

74 African Commission Resolution 257, Calling on the Republic of Kenya to Implement the Endorois Decision, adopted on 5 November 213 (non-compliance of the Republic of Kenya with its pledge to transmit an interim report within 90 days of the oral hearing in April 2013, and a comprehensive report to the Commission's session in October/ November 2013).

75 See also Ebobrah, ST, ‘Towards a Positive Application of Complementarity in the African Human Rights System: Issues of Functions and Relations’ (2011) 22 EJIL 663 .

76 I/A Court H.R., Velásquez Rodríguez v Honduras. Preliminary Objections. Judgment of June 26, 1987. Series C No. 1.

77 para 28.

78 American Convention, art 62(1).

79 Court Protocol, art 35(1) also uses the term ‘written request’.

80 para 29: ‘In exercising these powers, the Court is not bound by what the Commission may have previously decided; rather, its authority to render judgment is in no way restricted. The Court does not act as a court of review, of appeal or other similar court in its dealings with the Commission.’

81 See the separate opinion of Judge Trinidade in the Castillo-Páez v Peru. Preliminary Objections. Judgment (30 January 1996) para 10: ‘The principal concern of both the Court and the Commission should lie, not in the zealous internal distribution of attributions and competences in the jurisdictional mechanism of the American Convention, but rather in the adequate coordination between the two organs of international supervision so as to assure the most effective protection possible of the guaranteed human rights.’

82 Inter-American Court of Human Rights, Gangaram Panday v Suriname, Preliminary Objections, 4 December 1991, Ser. C 12, para 40.

83 The Van Oosterwijck case, decided on 6 November 1980, Series A 40 (1981).

84 Rule 44(1) of Rules of Court.

85 Rule 44(2) of the Rules of Court.

86 Rule 44(3) of the Rules of Court.

87 See the separate opinion of Judge Trinidade in the Case of Castillo-Páez v Peru. Preliminary Objections. Judgment of January 30, 1996, para 15: ‘The reopening of such questions before the Court, without the presence of one of the parties (the petitioning plaintiffs), militates against the principle of procedural equality (equality of arms/égalité des armes).’ See also the discussion in Section III below.

88 See eg International Pen and Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998) paras 114, 115 and Interights and Others (on behalf of Bosch) v Botswana (2003) AHRLR 55 (ACHPR 2003) paras 49, 50.

89 See eg App 21/2016, Mukwano v Tanzania, Order for Provisional Measure (3 June 2016) para 19.

90 Ogiek (n 26) para 74.

91 Mendes v Angola, Comm 413/12 (request for interim measures submitted on 21 April 2012; Commission issued its ‘order’’ on provisional measures on 30 April 2012; and later, on 25 February 2013, issued its finding on admissibility, finding the communication inadmissible).

92 African Commission (Saif Al-Islam Kadhafi) v Lybia, App 2/2013, Order of Provisional Measures (15 March 2013).

93 The Court subsequently decided the case on its merits, finding that Libya had violated the fair trial rights of the detainee: African Commission (Saif Al-Islam Gaddafi) v Lybia, App 2/2013, Judgment (3 June 2015).

94 Separate Judgment, para 2.

95 African Commission (Ogiek) v Kenya, App 6/2012, Order for Provisional Measures (15 March 2013).

96 See the Ogiek judgment (n 26) for the request to intervene under Rule of Court 29(3)(c) ‘to be heard in the case as original complainants before the Commission’ (para 14); the Court's grant of the request (para 27); and reference to the Head of Law, Minority Rights Group, actually being heard by the Court (para 29).

97 Rule 118(3) of the Commission's 2012 Rules of Procedure.

98 This interpretation is, adopting a textual approach, arguably better aligned with art 58(1) of the Charter (which uses the word ‘communication’), referred to in Rule 118(3); as well as with Rule 84(2), which is referred to in Rule 118(3), which is arguably contextualized by the notion of ‘one or more communications’ (see rule 84(1)).

99 Rule 118(4), 2010 Rules of Procedure.

100 Arguably, when the Commission allows a further extension of the implementation period (under Rule 112(2) and (3)), Rule 118(4) would only come into play after the expiry of the further prolonged period. The Commission's consideration of the issue of referral would under those circumstances still fall under Rule 118(1).

101 Rule 118(4), 2010 Rules of Procedure.

102 App 4/2011, Order for Provisional Measures (25 March 2011).

103 While this case could arguably also be described as an instance of massive violations referral, this would not be so if Rule 118(3)-referrals only relates to instances of massive violations in which a communication is not pending.

104 Protocol, art 27(2); Rules of the Court, Rule 51(1).

105 para 22 of the Order.

106 On the binding nature of the Commission's interim measures, see International Pen and Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998) paras 115–116 (where the Commission calls Nigeria's non-compliance a ‘blot’ on its legal system, and reiterates that the country is ‘legally bound’ by the Charter's provisions); see, however, Interights and Others (on behalf of Bosch) v Botswana (2003) AHRLR 55 (ACHPR 2003), where the Commission was much more ambiguous (para 51) about Botswana's obligations under similar circumstances.

107 Oder, J, ‘The African Court on Human and Peoples’ Rights’ Order in respect of the Situation in Libya: A Watershed in the Regional Protection of Human Rights?’ (2011) 11 AHRLJ 495 500.

108 African Commission on Human and Peoples’ Rights (Benghazi) v Libya, App 4/2011, Order (15 March 2013).

109 See art 5, Court Protocol. The Committee's own Rules and the Rules of Court also do not contemplate this possibility.

110 Court Protocol, art 3(1).

111 See art 30(c) of the Statute of the African Court of Justice and Human Rights.

112 By the end of 2016, only five States out of the required 15 have become party to the Protocol on the African Court of Justice and Human Rights.

113 This referral would be the same, even if not this Protocol, but a subsequent Protocol (the Protocol of Amendments to the Statute of the African Court of Justice and Human Rights) would enter into force.

114 Advisory Opinion 2/2013, The African Committee of Experts on the Rights and Welfare of the Child on the Standing of the African Committee of Experts on the Rights and Welfare of the Child before the African Court and Human and Peoples’ Rights (5 December 2014).

115 The number of ratifications of the African Children's Charter by the end of 1997 stood at nine (out of a total of 15 ratifications required for its entry into force).

116 See also the Women's Rights Protocol, which does not create an additional treaty body, but gives this role to the African Commission and Court.

117 Viljoen, F, ‘Why South Africa Should Ratify the African Charter on the Rights of the Child’ (1999) 116 SALJ 660 .

118 EX.CL/Dec.923(XXIX) Decision on the report of the African Committee of experts on the rights and welfare of the child (ACERWC), recommending to the Assembly ‘the amendment of Article 5(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 Court) to include the ACERWC among the entities entitled to submit cases to the Court and REQUESTS the ACEWRC in consultation with the Commission to prepare the amendment and submit it to the STC on Justice and Legal Affairs for consideration during its session scheduled for October 2016’.

119 Assembly/AU/Draft/Dec.528(XXIII), Decision on the Report of the African Committee of Experts on the Rights and Welfare of the Child, in which the inclusion of the phrase ‘and may be re-elected only once’ is added to art 37(1) of the Charter. The Assembly requested the AU Commission to notify all States Parties of the amendment and ‘to present the amendment for adoption during the January 2015 Summit in conformity with the provisions of Article 48(1) of the African Charter on the Rights and Welfare of the Child’.

120 African Children's Charter, art 48(1) stipulates that the Charter may be amended ‘if any state party makes a written request to that effect’.

121 Art 61(1) of the American Convention.

122 For a comprehensive view on this evolution, see Burgorgue-Larsen, L and De Torres, A The Inter-American Court of Human Rights: Case Law and Commentary (Oxford University Press 2011) 40–7.

123 ibid 43.

124 Art 24(1), Rules of Procedure of the Inter-American Commission (as amended in 2009): ‘When the application has been admitted, the alleged victims or their duly accredited representatives may submit their pleadings, motions, and evidence autonomously throughout the proceedings.’

125 For an informative discussion, see Bates (n 70) 201–4.

126 Lawless v Ireland (No. 1) (Preliminary Objections and Questions of Procedure), Series A No. 1 (14 November 1960); Lawless v Ireland (No. 2), Series A No. 2 (7 April 1961); Lawless v Ireland (No. 3) (Merits), Series No. A 3 (1 July 1961).

127 Bates (n 70) 202.

128 See C Morrisson, The Developing European Law of Human Rights (Sijthoff 1967) 60–70, who praises the Commission's ‘political ingenuity’ and describes the approach adopted as ‘one of the outstanding landmarks in the international protection of human rights’ (63). Morrisson emphasizes that the Convention did not shut out the individual complainant: ‘Even if the individual could not be a party, it was still his case’ (665).

129 Bates (n 70) 204.

130 Bates (n 70) 403.

131 Rule 29(3)(c).

132 See the request to intervene under Rule of Court 29(3)(c) ‘to be heard in the case as original complainants before the Commission’ (para 14); the Court's granting the request (para 27); and reference to the Head of Law, Minority Rights Group, actually being heard by the Court (para 29) (Ogiek n 25).

133 On victim participation before the ICC, see Schabas, WA, An Introduction to the International Criminal Court (5th edn, Cambridge University Press 2017) 399–50, which he refers to as one of the ‘great innovations in the Rome Statute’ (399); on the role of victims in reparations before the ICC, see eg Dwertmann, E, The Reparations System of the International Criminal Court (Martinus Nijhoff 2010).

134 See eg Meyers, D T, Victims’ Stories and the Advancement of Human Rights (Oxford University Press 2016).

135 These requests arrived at the Court since 2011, at an average of one per year for the period, as follows: 2011 (2); 2012 (2); 2013 (1); 2014 (2); 2015 (1); and 2016 (1). The Court's website list indicates 11 requests, which is misleading: The request by the Socio-Economic Rights Accountability Project (SERAP), Request 1/2012 (SERAP I request), was struck out; and subsequently resubmitted (as Request 1/2013) (SERAP II request); the same applies to the request by the Coalition on the International Criminal Court, Legal Defence & Assistance Project (LEDAP), Civil Resource Development & Documentation Center (CIRDDOC) and Women Advocates Documentation Center (WADRC), Request 1/2014 and Request 1/2015 (ICC I request; ICC II request). The statistical picture I paint takes the submission date of the first request into account, and not the second. SERAP II was finalized in 2017: African Court, Advisory Opinion, Request 1/2013, Socio-Economic Rights and Accountability Project (SERAP Advisory Opinion) (26 May 2017).

136 Requests by the Coalition on International Criminal Court (on the basis that the ICC Statute was not considered a ‘human rights instrument’) (ICC I request; ICC II request); and by the Pan-African Lawyers Union and Southern African Litigation Centre (concerning the SADC Tribunal, on the basis that a similar case was pending before the African Commission) (The Pan African Lawyers’ Union (PALU) and Southern African Litigation Centre, Request 2/2012 (SADC Tribunal request); and Libya, Request 2/2011 (no proof was provided that the individual presenting the request acted on behalf of the State).

137 Mali, Request 1/2011.

138 One by SERAP (concerning poverty as a human rights violation) (SERAP II request); another by the Centre for Human Rights (CHR) and Coalition of African Lesbians (concerning the word ‘consider’ in art 59 of Charter) (The Centre for Human Rights, University of Pretoria (CHR) & The Coalition of African Lesbians (CAL), Request 2/2015 (Article 59(3) request); and a third by Rencontre Africain pour la defense des Droits de l'Homme, Request 2/2014 (RADDHO request); and a fourth by CHR and four others NGOs (concerning the phrases ‘registered … in order to be legally recognised’ in art 6(d) of the Maputo Protocol (The Centre for Human Rights, Federation of Women Lawyers Kenya, Women's Legal Centre, Women Advocates Research and Documentation Centre and Zimbabwe Women Lawyers Association, Request 1/2016 (Article 6(d) request)). The Article 59(3) request was submitted on 2 November 2015; and the Article 6(d) request on 7 January 2016. The Court dealt with the Article 59(3) request 2017, concluding that it was unable to accede to the request, because the NGO-applicants lack standing to bring the request (Article 59(3) Advisory Opinion (20 September 2017)).

139 Between 1982 and 1987, the Court adopted 10 Advisory Opinions; in the following decade, the number declined to six opinions (see HF Ledesma, The Inter-American System for the Protection of Human Rights: Institutional and Procedural Aspects (2007) appendices at 979–80); see also Pasqualucci, J, ‘Advisory Practice and Procedure of the Inter-American Court of Human Rights: Contributing to the Evolution of International Human Rights Law’ (2002) 38 StanJIntlL 241 .

140 Art 4(1) of the Court Protocol; Rule 68 of the Court's Rules.

141 After the entry into force of Protocol 16 to the European Convention, the highest courts of member States may request advisory opinions from the European Court on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention.

142 Two of the NGO-initiated requests faltered for other reasons, and four were still pending (SERAP II request; Article 59(3) request; Article 6(d) request; RADDHO request). However, the Court decided this issue, finding that NGOs lack standing, in SERAP Advisory Opinion (n 135) and in the Article 59(3) Advisory Opinion (n 138).

143 Art 5(1)(e) of the Court Protocol.

144 Art 5(3) of the Court Protocol.

145 Viljoen (n 3) 447.

146 Ouguergouz, F The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (Brill 2003) 750 .

147 The Court in its 2017 Advisory Opinions drew a distinction between the grant of observer status by ‘the AU’, on the one hand, and by ‘AU organs’, on the other (SERAP Advisory Opinion (n 135) paras 52–65 and Article 59(3) Advisory Opinion (n 138)). The implication of this ruling is that no NGO is in actual fact entitled to submit such a request on this basis, as no NGO has apparently acquired AU accreditation, as such. However, the Court added that the existence of a memorandum of agreement between an NGO and the AU Commission would qualify as recognition by the AU.

148 AU Doc Assembly/AU/Dec.1(I) xi.

149 As Eno has observed, ‘NGOs with observer status before the Commission are ipso facto organisations recognized by the OAU in terms of art 4(1) of the Protocol’ ( Eno, RW, ‘The Jurisdiction of the African Court on Human and Peoples’ Rights’ (2002) 2 AHRLJ 223 232). According to Ouguergouz, even a de facto working relationship between the AU and the NGO may constitute recognition for purposes of art 4 (Ouguergouz (n 146)).

150 SADC Tribunal request.

151 On the basis that on 5 December 2012 a matter, similarly related to the SADC Tribunal, was pending before the Commission, and in the absence of further information from the applicants.

152 Comm 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others.

153 African Charter, art 56(6).

154 SERAP I request (resubmitted as SERAP II).

155 eg the 2004 Guidelines for AU Electoral Observation and Monitoring Missions.

156 Request 1/2014 (Coalition for the International Criminal Court, Legal Defence & Assistance Project (LEDAP), Civil Resource Development & Documentation Center and Women Advocates Documentation Center (attempt to re-enlist as Request 1/2015 (Coalition for the International Criminal Court LTD/GTE) was rejected); and Request 2/2014 (The African Movement for Human Rights Defence).

157 Request 1/2015 (Coalition for the International Criminal Court, Legal Defence & Assistance Project (LEDAP), Civil Resource Development & Documentation Center and Women Advocates Documentation Center, Order of 29 November 2015, para 18.

158 ibid.

159 See eg Schabas, WA, ‘Synergy or Fragmentation? International Criminal Law and the European Convention on Human Rights’ (2011) 9 JICJ 609 ; and Huneeus, A, ‘International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts’ (2013) 107 AJIL 1 .

160 Request 1/2015 (Coalition for the International Criminal Court, Legal Defence & Assistance Project (LEDAP), Civil Resource Development & Documentation Center and Women Advocates Documentation Center, Order of 29 November 2015, Dissenting Opinion (J Ouguergouz).

161 Dissenting Opinion, para 19.

162 APDH v Côte d'Ivoire, paras 63, 65.

163 Art 64(1).

164 Advisory Opinion OC-1/82, para 8.

165 Art 36(1)(a) provides that ‘consular officers shall be free to communicate with nationals of the sending State and to have access to them’, and that nationals of the sending State ‘shall have the same freedom with respect to communication and access to consular officers of the sending State’; see Advisory Opinion OC-16/99 (The Right to Information on Consular Assistance).

166 Advisory Opinion OC-16/99, para 84.

167 American Convention, art 64(2).

168 Viljoen, F and Abebe, AK, ‘Amicus Curiae Participation before Regional Human Rights Bodies in Africa’ (2014) 58 Journal of African Law 22 . See also Inter-American Court of Human Rights, Kimel v Argentina, Judgment (Merits and Reparation) (2 May 2008) Series C No. 177, para 16.

169 Shelton, D, ‘The Participation of Nongovernmental Organizations in International Judicial Proceedings’ (1994) 88 AJIL 611 , 612.

170 See eg Van den Eynde, L, ‘An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs before the European Court of Human Rights’ (2013) 31 NQHR 271 (noting that, from 1986 to 2013, over 140 NGOs have been admitted as ‘third-party interveners).

171 Rule 45, Rules of Court; Court's 2012 Practice Directions, para 47.

172 Court's 2012 Practice Directions, para 42.

173 Court's 2012 Practice Directions, para 44.

174 Not all cases lead to oral hearings. If the Court grants the request to act as amicus curiae, the person or organization making the request shall be notified by the Registrar and invited to make submissions, together with any annexes, at any point during the proceedings.

175 See eg the amicus brief of the Centre for Human Rights in the SERAP Advisory Opinion (n 135) paras 17, 33–36.

176 African Commission (Bengazi) v Lybia App 4/2011, Order of Provisional Measures (25 March 2011). This case was eventually struck off the roll for a lack of presenting evidence, in 2013.

177 Umuhoza Withdrawal, paras 43–47.

178 Konate, paras 141–143.

179 Court Practice Note, 2012, para 45: ‘The Court on its own motion may invite an individual or organization to act as amicus curiae in a particular matter pending before it.’

180 Umuhoza v Rwanda, App 3/2014, Order (3 June 2016) para 38.

181 ibid

182 Court Practice Note (2012) para 42.

183 In its minority judgment, following the amici contention, no reference is made to the amici.

184 Ultimately, the issue of access remains framed by the limited number of cases that percolate through national systems. Access at the national level should be improved to enhance access at the regional level. In line with the principle of subsidiarity, accessing national courts must be the first port of call. It is thus in this arena where access has to be reinforced, for example by improving the effective functioning of domestic legal systems; fostering vibrant domestic legal cultures; and addressing impediments to justice such as inaccessible courts, excessive cost and corrupt officialdom. Achieving this is the responsibility of both States and civil society.

185 Lawless v Ireland; De Becker v Belgium; Wemhoff v Germany; Neumeister v Austria; The Belgian Linguistic case; Stögmüller v Austria; and Matznetter v Austria. The number of cases increased to 20 in the next decade (1970–79); and to 144 in the following decade (1980–89) (see Kampees, P (ed), A Systematic Guide to the Case Law of the European Court of Human Rights, 1960–1994 (Springer 1996); and Mensah, B, European Human Rights Case Summaries 1960–2000 (Cavendish Publishing 2002)).

186 The Inter-American Court decided three contentious cases in the first ten years. These cases, Velásquez Rodrigues v Honduras, Firén Garbi and Solís Corralis v Honduras and Gordínez Cruz v Honduras were all submitted to the Court in 1986. Only the first and last of these proceeded to judgment on the merits. These decisions were rendered in 1989.

187 See Ledesma, HF, The Inter-American System for the Protection of Human Rights: Institutional and Procedural Aspects (3rd edn, IIHR 2007) Apps at 967–982. The Inter-American Court mostly adopted advisory opinions over its first decade.

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International & Comparative Law Quarterly
  • ISSN: 0020-5893
  • EISSN: 1471-6895
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