The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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The African Commission and African Court for Human Rights

Both the Commission and the Court have a mandate of promoting and monitoring the African Charter on Human and People’s Rights, which was adopted by the Organization of African Unity (OAU) on 27 June 1981 and entered into force on 21 October 1986. The Commission headquarters are located in Banjul, Gambia, and the Court headquarters are located in Arusha, Tanzania. In 2008, the African Court of Human and Peoples’ Rights merged with the African Court of Justice to create the African Court of Justice and Human Rights. Both institutions continue to operate during the period of transition necessary before the entry into force of the 2008 treaty. Both the Commission and the Court are competent to examine situations of human rights violations and complaints or communications filed by Member States or individuals. Other mechanisms exist in the framework of African regional organizations, such as the Court of Justice of the Economic Community of West African States (ECOWAS), the East African Court of Justice (EAC), or the South African Development Community Tribunal (SADC). They all apply and refer to the African Charter on Human and People’s Rights and other conventions adopted by the African Union in the field of human rights.

In addition to States, individuals and NGOs can submit communications to the African Commission for Human and People’s Rights, which is competent with regard to all States Parties to the African Charter on Human and People’s Rights (currently fifty-three States). Nevertheless, such communications are subject to various admissibility conditions.

Individuals and NGOs can file complaints before the African Court of Justice and Human Rights, but only against States that expressly accepted its jurisdiction.

The Commission

The African Commission for Human and People’s Rights was established in 1987 according to Article 30 of the African Charter on Human and People’s Rights. It consists of eleven independent experts, elected by the African Union Assembly of Heads of State and Government to six-year terms. They can be reelected once. The Commission meets every six months, usually in March or April and in October or November. One of these meetings is usually in Banjul; the other may be in any African State. At each session, the Commission presents an activity report to the Assembly of Heads of State and Government.

The Commission’s mandate is set forth in Article 45 of the African Charter. It includes:

  • interpreting the Charter’s provisions;
  • promoting human and people’s rights (Art. 45.1 specifies some of the ways the Commission can implement this goal: collecting and preparing legal documents relating to human rights; centralizing documentation, research, studies; disseminating information and raising awareness; cooperating with other African and competent international institutions; formulating and laying down principles and rules aimed at solving legal human rights problems; etc.);
  • ensuring the protection of human and peoples’ rights. Articles 46 to 59 of the Charter specify the procedures and powers given to the Commission. It is notably competent to receive and examine State or individual communications relative to human rights violations and proceed to investigations (Arts. 46, 51). If no amicable solution has been found, the Commission may communicate its report and recommendations to the concerned State and to the Assembly of Heads of State and Government (Arts. 52, 58–59).

State Communications

The seizure of the Commission by a State Party is automatic (Arts. 47, 49). If a State party to the African Charter on Human and People’s Rights believes that another State Party has violated the provision of the Charter, it may draw the attention of that State to the matter by written communication (Art. 47). If, within three months, no mutually satisfactory solution has been found, either party to the dispute can submit the matter to the Commission. The State alleging the human rights violation also has the option of referring the case directly to the Commission. The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious that the procedure of achieving these remedies would be unduly prolonged (Art. 50). Once the Commission is considering a matter, its aim is not to pronounce a judgment but to search for an amicable solution, in light of the written and oral explanations submitted by the concerned States. In case this fails, it sends a report on the findings to the States party to the dispute and to the Assembly of Heads of State and Government. The report can include non-binding recommendations (Arts. 52, 53). The entire procedure remains confidential. However, if the Assembly of Heads of State and Government so decide, the report may be published.

Other Communications

“Other communications” designates all complaints transmitted by other sources (such as individuals or NGOs).

The Commission does not automatically consider all cases. Before each session, the list of communications is transmitted to the Commission’s members. The Commission then considers a complaint on the request of a simple majority of its members (Art. 55).

The communications are then subject to seven conditions of admissibility (Art. 56). They must not be anonymous (i.e., they must indicate the authors, even if they later request anonymity), written in disparaging or insulting language, or based exclusively on news from the mass media, and they must not deal with cases that have already been settled by the States involved in accordance with the principles of the UN Charter, the AU Charter, or the African Charter on Human and People’s Rights. However, the communication must be compatible with the African Charter, be sent to the Commission after local remedies were exhausted (unless such procedure is unduly prolonged), and be submitted within a reasonable period.

After this examination of the admissibility of the case, the Commission begins the examination of its merits and notifies the accused State. If one or more of the communications appear to “reveal the existence of a series of serious or massive violations of human and peoples’ rights,” the Commission informs the Assembly of Heads of State and Government (Art. 58). In case of emergency, it may submit the information directly to the chair of the Assembly, who may request an in-depth study from the Commission. This will result in a report, including recommendations. All measures taken within the procedure remain confidential, unless the Assembly decides otherwise.

The Rules of Procedure of the African Commission on Human and Peoples’ Rights also authorizes the Commission to set up subsidiary bodies (Chapter VI, Rules 28 and 29). The Commission has five Special Mechanisms, or Special Rapporteurs, that address specific human rights issues:

  • Freedom of Expression and Access to Information in Africa
  • Human Rights Defenders
  • Prisons and Conditions of Detention
  • Refugees, Asylum Seekers, Migrants, and Internally Displaced Persons
  • Rights of Women (this Rapporteur bears specific responsibilities with respect to the Protocol on the Rights of Women in Africa, better known as the Maputo Protocol)

There are eight Working Groups and Committees that monitor and investigate various issues under the jurisdiction of the Commission and submit a progress report at each Ordinary Session of the Commission:

  • Committee for the Prevention of Torture in Africa
  • Working Group on Indigenous Populations/Communities in Africa
  • Working Group on Economic, Social, and Cultural Rights
  • Working Group on the Death Penalty
  • Working Group on Rights of Older Persons and People with Disabilities
  • Working Group on Extractive Industries, Environment, and Human Rights Violations
  • Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk of, Vulnerable to, and Affected by HIV
  • Working Group on Communications

The African Court on Human and Peoples’ Rights (1998) / African Court of Justice and Human Rights (2008)

A protocol to the African Charter on Human and People’s Rights was adopted on 9 June 1998 by the African Organization Unity and entered into force on 25 January 2004. It creates the African Court for Human and People’s Rights, which has jurisdiction over cases and disputes concerning human rights violations, based either on the African Charter or on any human rights instrument ratified by the State concerned. It is competent to examine violations of the African Charter for Human and Peoples’ Rights as well as violations of the African Charter on the Rights and Welfare of the Child, adopted in Addis Ababa in 1990, and of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, signed in Maputo in 2003.

On 22 January 2006, the Eighth Ordinary Session of the Executive Council of the African Union elected the first eleven judges of the African Court on Human and Peoples’ Rights. Judges are elected for six-year terms and can be reelected once. The president and vice president are elected for two-year terms. The Court had its first meeting on 2–5 July 2006, and on 15 December 2009 the Court delivered its first judgment.

On 1 July 2008, at the 11th African Union Summit of Heads of State and Government in Sharm El Sheikh, Egypt, the African Union decided to merge the Court for Human and Peoples’ Rights with the African Court of Justice. The merger protocol, entitled the Protocol on the Statute of the African Court of Justice and Human Rights (the Single Protocol) was adopted in 2008 but has not yet entered into force. The Single Protocol replaces the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (adopted in 1998 and entered into force in 2004) and the Protocol of the Court of Justice of the African Union (adopted in 2003 and entered into force in 2005). The Statute of the African Court of Justice and Human Rights is contained in the annex to the Protocol. This Court is now known as the African Court of Justice and Human Rights and is the main judicial organ of the AU. The Court is based in Arusha, Tanzania, and is composed of two chambers—one for general legal matters and one for rulings on the human rights treaties. The Court shall consist of sixteen independent judges, elected by the Executive Council on the basis of equitable geographic distribution. They shall be elected by secret ballot by a two-thirds majority of Member States with voting rights and appointed by the Assembly. The Court shall decide each year on the periods of its ordinary sessions and shall hold extraordinary sessions at the request of the majority of the judges.

In order to better understand the methods of referral to the Court during the transition period, the number of articles of the 1998 and 2008 treaties will be presented together.

The Court’s Jurisdiction

The Court has jurisdiction on all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and People’s Rights, the 1998 Protocol, and any other relevant human rights instrument ratified by the States concerned (1998, Art. 3). The following elements have been added to the Court’s jurisdiction by the 2008 Protocol: the interpretation of the Charter on the Rights and Welfare of the Child; the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; any question of international law; all acts, decisions, regulations, and directives of the organs of the African Union; the existence of any fact which, if established, would constitute a breach of an obligation owed to a State Party or to the African Union; as well as the nature or extent of the reparation to be made for the breach of an international obligation (2008, Art. 28).

The Court can also give advisory opinions on any legal question at the request of the Assembly, the Parliament, the Executive Council, the Peace and Security Council, the Economic, Social, and Cultural Council, the Financial Institutions, or any other organ of the African Union as may be authorized by the Assembly. Nonetheless, a request for an advisory opinion must not be related to a pending application before the African Commission or the African Committee of Experts (1998, Art. 4; 2008, Art. 53).

The functions of the Court are to (a) collect documents and undertake studies and investigations on human and peoples’ rights matters in Africa; (b) lay down rules aimed at solving legal issues relating to human and peoples’ rights; (c) ensure the protection of human and peoples’ rights; and (d) interpret the provisions of the Charter. The merger of the two courts is going slowly; as of April 2013, only five countries had ratified the Single Protocol out of fifteen needed for its entry into force.

Seizure of the Court

The following institutions are entitled to submit cases to the Court: the African Commission, the State Party that has lodged a complaint to the Commission, the State Party against which the complaint has been lodged at the Commission, and intergovernmental African organizations (1998, Art. 5.1). This list was enlarged in 2008 and adds the Assembly, the Parliament, and the other bodies of the African Union authorized by the Assembly; the African Committee of Experts on the Rights and Welfare of the Child; and human rights national institutions (2008, Arts. 29, 30).

Individuals and nongovernmental organizations that enjoy observer status at the Commission may also petition the Court if the concerned Member State has declared that it accepts the jurisdiction of the Court (1998, Arts. 5.3, 34.6; 2008, Arts. 8.3, 30.f).

The Court may try to reach an amicable settlement in a case pending before it (1998, Art. 9). If the Court finds that there has been a violation of a human right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation (1998, Art. 27; 2008, Art. 45), or take provisional measures in situations of extreme gravity or emergency (1998, Art. 27.2; 2008, Art. 25). States are bound to comply with the Court’s judgments (1998, Art. 30; 2008, Art. 46).

Other African Courts

Outside the system put in place by the African Union, African regional organizations have also developed a system for protection of human rights.

ECOWAS Court of Justice

This Court was established in 1991, but it really began to work in 2001. Its headquarters are located in Abuja, Nigeria, and it is competent to examine violations of human rights under the Treaties, Conventions, and Protocols of the Community as well as under the African Charter of Human and Peoples’ Rights. Since the adoption of the Supplementary Protocol of the Court in 2005, individuals can file complaints before the Court for violations of human rights perpetrated by State agents (Art. 4.c of the Supplementary Protocol). It is possible to file a complaint before having exhausted internal recourses, contrary to most similar international procedures. Individuals can seize the Court provided that the same matter has not been instituted before another International Court (Art. 4.d). Besides, judgments of the Court that have financial implications for nationals of Member States are binding (Art. 6.1). In 2008, the ECOWAS Court of Justice condemned the State of Niger to pay reparation to a victim of slavery. Even if in the particular case the complainant was not a victim of a State agent, the Court engaged the State responsibility of Niger for not having respected its international obligations in matters of protection against slavery (Judgment, Hadijatou Mani Koraou v. Republic of Niger , ECW/CCJ/JUD/06/08, 27 October 2008).

The East African Court of Justice

This Court was created as a judicial institution of the East African Community in 1999 and temporarily sits in Arusha, Tanzania. It does not have a clear or specific mandate concerning human rights, but it can give opinions on the application or violations of the African Charter of Human and Peoples’ Rights.

The South African Development Community Tribunal (SADC)

This Court was created in 1992 and sits in Windhoek, Namibia. It is competent to settle disputes between SADC Member States, but also between individuals, corporate bodies (including NGOs), and Member States. Internal recourses must have been exhausted for a complaint to be admissible.

Human rightsIndividual recourse

List of States Party to International Humanitarian Law and Human Rights Conventions (no. 12)

African Commission for Human and People’s Rights

Kairaba Avenue

PO Box 673

Banjul, Gambia

Tel.: (220) 39 29 62

Fax: (220) 39 07 64

ECOWAS Court of Justice

10 Dar es Salaam Crescent; Off Aminu Kano Crescent

Wuse II, Abuja-Nigeria

Fax: (234) 09 524 07 80

http://www.court.ecowas.int

@ Websites:

http://www.achpr.org

http://www.african-court.org

http://www.claiminghumanrights.org/au

For Additional Information: Duffy, Helen. “ Hadijatou Mani Koroua v Niger : Slavery Unveiled by the ECOWAS Court.” Human Rights Law Review 9 (2008): 151–70.

International Federation for Human Rights. 10 Keys to Understand and Use the African Court on Human and Peoples’ Rights . FIDH: Paris, 2004.

Ouguergouz, Fatsah. “The Establishment of an African Court of Human and People’s Rights: A Judicial Première for the African Union.” African Yearbook of International Law 11 (2003): 78–141.

Van der Mei, Anne Pieter. “The New African Court of Human Rights and People’s Rights: Towards an Effective Human Rights Protection Mechanism for Africa?” Leiden Journal of International Law 18 (2005): 113–29.

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