Open Letter Letter to the AU Assembly of Heads of State and Government, 11th Ordinary session, and the Executive Council of Ministers, 13th Ordinary session
The Creation of The African Court of Justice and Human Rights
20-06-2008
The Coalition for an Effective African Court on Human and Peoples’ Rights (hereinafter referred to as the Coalition) calls on the African Union (A.U.) to assure the right of individual access to the proposed African Court of Justice and Human Rights in considering the adoption of the single legal instrument establishing the court.
The Coalition was formed in May 2003 to advocate for an effective, efficient, independent and credible African Court on Human and Peoples’ Rights. Non-governmental organisations (N.G.O) and individuals with a keen interest and commitment to a strong human rights protection mechanism in Africa, as well as national human rights institutions adhering to the Paris Principles are members of the Coalition.
At the 2004 Summit, the Assembly of Heads of State and Government of the A.U. decided to integrate the African Court on Human and Peoples’ Rights established in 1998 and the Court of Justice of the A.U. to create an African Court of Justice and Human and Peoples’ Rights. The integrated court would become an organ of the A.U.
The Coalition has been engaged in the debates around the integration of the African Court on Human and Peoples’ Rights and Court of Justice of the A.U. since the June 2004 decision. Its submissions to Member States of the A.U. place an emphasis on the following:
(1) The human rights mandate should not be undermined in the context of the integration and creation of the new Court, and;
(2) Direct access for individuals and civil society organisations before the new Court should be guaranteed.
The above two aspects will, in the Coalition’s view, strengthen the African regional human rights system while making it meaningful to both the States parties and the citizens it is designed to assist.
A meeting of Ministers of Justice and Attorneys General on the finalisation of the single legal instrument creating the African Court of Justice and Human Rights in Addis Ababa from 14- 18 April 2008, decided to excise from the draft instrument previously agreed to by legal experts the right of individual access to the integrated court. This is of very grave concern to the Coalition.
The Coalition strongly believes that this development is a step back in access to justice for all in Africa. It dilutes the effectiveness of the continental judicial system and runs contrary to the provisions on access to justice in several international human rights instruments, including the African Charter on Human and Peoples’ Rights, and the International Covenant on Civil and Political Rights to which most Member States are a party.
The practice of African States clearly demonstrates that in fact there is a general acceptance of individuals’ rights to access regional courts and tribunals directly. Thus, African States in treaties, protocols and other instruments creating the Court of Justice of the Economic Community of West African States (ECOWAS), the East African Court of Justice (EACJ); the Southern African Development Community (SADC) Tribunal, the Court of Justice of the Common Market of the East and Southern Africa (COMESA), and the Court of Justice of the Economic and Monetary Union of West Africa (UEMOA), all now grant direct access for individuals to these courts.
At present, individuals can access the African Court on Human and Peoples’ Rights only if a State Party has made a declaration under Article 34(6) of the protocol establishing the Court. Currently, Burkina Faso is the only State Party that has made the declaration. A further limitation is that only organisations that have observer status at the African Commission on Human and Peoples’ Rights can be entitled to institute cases before the Court (Article 5). The protocol establishing the Court of Justice of the A.U. restricts access to the court to State Parties; organs of the A.U.; the A.U. Commission and staff and “third parties under conditions to be determined and with the consent of the State party concerned” (Article 18[1]).
The Coalition is of the view that the single legal instrument creating the African Court of Justice and Human Rights should encapsulate measures that make it accessible to all interested parties, including non-State Parties. N.G.O’s should be allowed to lodge a complaint of human rights and matters arising out of other A.U. treaties before the Court.
The Coalition, therefore calls on the A.U. Assembly of Heads of State and Government and the Executive Council of Ministers at the A.U. Summit in Egypt in July 2008 to adopt the single legal instrument establishing the African Court of Justice and Human Rights with the following conditions:
(1) Support direct access for all entities, including individuals, in Africa and to rescind the requirement of optional declarations.
(2) Call on States’ Parties to the protocol establishing the African Court on Human and Peoples’ Rights to make the declaration allowing direct access to the Court by individuals and N.G.O’s as required under Article 34(6) of the enabling protocol.