Introduction
The African Charter on Human and Peoples’ Rights (the ‘African Charter’) is the central international human rights instrument charged with the promotion and protection of human rights on the African continent. It established the African Commission on Human and Peoples’ Rights (the ‘African Commission’),[1] which makes quasi-judicial recommendations on the communications it receives and considers.[2] In contrast, the African Court on Human and Peoples’ Rights (the ‘African Court’), established by the Protocol to the African Charter on Human And Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the ‘African Court Protocol’), makes binding judicial decisions.[3]
Art. 5 of the African Court Protocol provides rules on access to the African Court. Per Art. 5 (1) of the African Court Protocol the African Commission, state parties, and African Intergovernmental Organizations are entitled to submit cases to the African Court. Individuals and relevant NGOs with observer status to the African Commission on the other hand can, as Art. 5 (3) of the African Court Protocol provides, only be entitled by the African Court to institute cases before it in accordance with Art. 34 (6) of the African Court Protocol. This Art. 34 (6) requires States to have made a declaration accepting the competence of the African Court to receive cases under Art. 5 (3) of the African Court Protocol. As of today, only eight states[4] have made such a declaration, with four other states[5] having withdrawn their previously made declarations.[6] This creates the situation where thirty-four States may have ratified the African Court Protocol,[7] but relevant NGOs and individuals from only eight states are able to access this court directly.
It seems to be clear that limiting the access of those, which are directly affected by human rights violations, to a human rights court is contradictory to effective human rights enforcement. And as such Art. 34 (6) of the African Court Protocol ultimately stands in the way of an effective and credible African human rights system.
Means of individuals of accessing the African Court
As already highlighted, the only way of direct access to the African Court for individuals exists, if the respondent member state has made the necessary declaration of Art. 34 (6) of the African Court Protocol. As already stated, in total twelve states have made such a declaration, but four of those have withdrawn their declaration, the possibility of which having been confirmed by the African Court.[8]
As such Art. 34 (6) of the African Court Protocol is said to have ‘limited the overall volume of cases the Court has and is likely to receive.’[9] While as of July 2024 the African Court has received 316 Cases from individuals,[10] many of those cases failed due to the lack of jurisdiction of the African Court.[11]
Additionally, there also exists the possibility of indirect access to the African Court. As Rule 130 of the 2020 African Commissions Rules of procedure states, the African Commission may, decide that Communications submitted under Arts. 48, 49 or 55 of the African Charter should be referred to the Court, as long as the respondent state has ratified the Protocol to the African Charter. As such individuals who can submit communications to the African Commission as “Other Communications” under Arts. 55-58 of the African Charter,[12] can gain indirect access to the African Court. But while this option exists on paper, only few cases of such referrals have taken place in general,[13] which makes this possibility more theoretical rather than practical.
As a result, access to the African Court for individuals is vastly limited in Africa in regard to all but 8 of the 56 member states of the African Charter.
Examining the Importance of Access to Justice
The access of individuals to international human rights tribunals has been hailed as one of the greatest historical achievements of the international protection of human rights.[14]
But this type of direct access of individuals exists only in the European human rights system where, since 1998,[15] Art. 34 ECHR allows the European Court of Human Rights to receive applications from any person, NGO or group of individuals. In the Inter-American human rights system, no such way of access to the Inter-American Court exists, only state parties and the Inter-American Commission on Human Rights (to which individuals have access to, Art. 44 ACHR) may submit cases to the Court.[16] It is thus clear, that access of individuals to international human rights courts is thus more of an exception, rather than the norm.
The importance of direct access of individuals to human rights courts is highlighted when looking at the statistics of the cases before the African Court:[17] of the 342 contentious cases before the African Court, 316 have been received by individuals, 22 by NGOs, 3 by the African Commission, and only one from a state party.[18]
It should thus be a self-evident statement, that without individual petition and the resulting direct access to international human rights courts, human rights treaties would be ‘little more than dead letter.’[19] Direct access to international justice thus only seems like the logical consequence and development; it would seem totally unreasonable to constitute rights of individuals at an international level, without granting them the corresponding capacity to actually enforce those rights.[20]
Outlook
It comes as no surprise, that calls for reform of the access to the African Court are frequent.[21] A first step in the right direction would be more states ratifying the African Court Protocol and making Art. 34 (6) declarations. A next step, would be an amendment of Art. 34 (6) of the African Court Protocol, eliminating the optional character of Arts. 5 (3) and 34 (6) of the African Court Protocol. In the meantime, Rule 130 referrals from the African Commission to the African Court could provide a valuable way of indirect access of individuals to the court.[22]
Recent Art. 34 (6) declarations by Gambia, Niger, and Guinea Bissau can thus be seen as welcome news. They, however, can also be seen as serving as mere substitutes for the recent withdrawals of Tanzania, Benin and Côte d’Ivore.
Conclusionary Remarks
It is clear, that direct access of individuals to human rights courts is necessary for an effective and credible human rights system. In the African human rights system however, Art. 34 (6) of the African Court Protocol stands in the way of effective human rights enforcement of individuals. On this issue, the African system is, in my opinion, lacking and there is dire need for a change. However dire the change may be, it seems however, that there is no or at least little political will to make a change. In the meantime, one can only hope for this change.
[1] Articles 30ff. of the African Charter.
[2] Compare Manisuli Ssenyonjo, ‘Responding to Human Rights Violations in Africa’, (2018) 7 International Human Rights Law Review, 1, 4.
[3] Compare Ssenyonjo, ‘Responding to Human Rights Violations in Africa’, 1, 4.
[4] Burkina Faso, Malawi, Mali, Ghana, Tunisia, Gambia, Niger, and Guinea Bisseau
[5] Rwanda, Tanzania, Benin, and Côte d’Ivoire
[6] <https://www.african-court.org/wpafc/declarations/> accessed 8 July 2024.
[7] <https://www.african-court.org/wpafc/basic-information/> accessed 8 July 2024.
[8] See Ingabire Victoire Umuhoza v. Rwanda, App 003/2014, para. 58: ‘As far as unilateral acts are concerned, state sovereignty commands that states are free to commit themselves and that they retain discretion to withdraw their commitments.’
[9] Rachel Murray, ‘The Human Rights Jurisidiction of the African Court of Justice and Human and Peoples’ Rights’, in C. Jalloh, K. Clarke, & V. Nmehielle (eds), The African Court of Justice and Human and Peoples’ Rights in Context: Development and Challenges (Cambridge University Press 2019) 970.
[10] <https://www.african-court.org/cpmt/statistic> accessed 30 July 2024.
[11] Compare Ssenyonjo, ‘Responding to Human Rights Violations in Africa’, 1, 35.
[12] Compare Ssenyonjo, ‘Responding to Human Rights Violations in Africa’, 1, Fn. 39.
[13] 3, according to the Statistics page on the African Court Homepage, <https://www.african-court.org/cpmt/statistic> accessed 30 July 2024.
[14] A. A. Cançado Trindade, The Access of Individuals to International Justice, (OUP 2011), 32.
[15] Until then, the European Convention on Human Rights used to employ a similar optional clause as the Protocol to the African Charter in regard to access of individuals to the court. This was changed with Protocol 11, which came into force in 1998; regarding the negotiations and for an overview of Protocol 11, see Ed Bates, The Evolution of the European Convention on Human Rights, (OUP 2010), 452-465.
[16] Art. 61 ACHR.
[17] See <https://www.african-court.org/cpmt/statistic> accessed 30 July 2024.
[18] As of July 2024, only Democratic Republic of the Congo v. Republic of Rwanda, App. 007/2023, which is yet to be decided, has been received by the court from a state party.
[19] Trindade, The Access of Individuals to International Justice, 14.
[20] Also Trindade, The Access of Individuals to International Justice, 15.
[21] Compare only Makau Mutua, ‘The African Human Rights Court: A Two-Legged Stool?’, Human Rights Quarterly, vol. 21/2 (1999), 342, 355.
[22] Ssenyonjo, ‘Responding to Human Rights Violations in Africa’, 1, 41.
