|See: African Charter of Peoples and Human Rights
Click: Protocol & Operations of the African Court of Justice
HUMAN RIGHTS REFORM IN THE AFRICAN UNION
INAUGURATION OF AFRICAN COURT OF JUSTICE SET FOR JULY 2004
On 8 June 1998, the OAU meeting in Burkina Faso voted to initiate the process for the creation of an African Court on Human and Peoples' Rights. To come into effect, the protocol for the proposed court demanded ratification by fifteen OAU constituent States. The first states to ratify were Burkina Faso and Senegal in late 1999. The Protocol authorizing the formation of the court came into force on 25th January 2004. The charter on which the protocol is based was adopted on 27 June 1981, and entered into force on 21 October 1986.
The judges of the African Court of Justice will be nominated and elected by the members of the Executive Council of the African Union, and then they will be appointed and confirmed by the Assembly of African Heads of State and Government at the July 2004 summit.
According to the protocol, the court shall consist of eleven judges elected by the Assembly of Heads of State and Government of the OAU from a list of nominees proposed by OAU member States.
The assembly shall ensure that there is adequate regional and gender representation among the selected judges (Art. 14). The judges, who may serve two six-year terms, are to function independently and shall enjoy the immunities extended to diplomats in accordance with international law (Art.17).
The envisioned court will complement the protective mandate of the African Commission on Human and Peoples' Rights. It will have both advisory and contentious jurisdiction over human rights matters. As for its sources of law, the court shall apply the provisions of the African Charter on Human and Peoples' Rights "and any other relevant human rights instruments ratified by the States concerned." (Art. 7).
The great majority of African states have ratified many of the major United Nations human rights conventions, including the Convention on the Elimination of Discrimination Against Women (entry into force in 1981) and the Convention on the Rights of the Child (entry into force in 1990). Consequently, the court will be able to apply a much broader array of human rights obligations against states than the African Charter alone affords.
African states, the commission, and African intergovernmental organizations will be able to submit cases to Court (Art. 5). Individuals and NGOs may, at the discretion of the court, file a petition with the court against any state, if they have exausted other avenues, or if the court deems it necessary to address the matter, it won't wait for rulings by lower courts. However, the court won't hear a case filed by an NGO or a private person against a state, unless the state agrees to the filing. A way around this impass is to simply sue the leaders of the state in their private capacities.
The protocol authorizes the court to issue appropriate orders to remedy a human rights violation, including the payment of fair compensation or reparation to the injured party (Art. 27). States recognizing the court promise to comply with its judgments (Art. 30), and the AU Council of Ministers will be charged with monitoring the execution of Court judgments on behalf of the AU Assembly (Art. 31).
The Pan African Parliament, the Assembly and other institutions will pressure a non-complying country into honoring a court judgment. The expenses of the court are to be borne by the AU Commission (Art.32).
CHALLENGES AND PARADIGMS
In April of 1999 the OAU held its first ever Ministerial Conference on Human Rights. At that conference, held at Grand Bay, Mauritius, OAU Secretary-General Salim called for the integration of human rights in school curricula and the strengthening of institutions responsible for promotion and respect for human rights. He emphasized that Africa "needs to inculcate in its people a culture of peace, tolerance and respect of human rights, to energetically fight poverty, illiteracy and intolerance, to strive to overcome the scourge of conflicts and ensure that human rights violations are not only condemned but also effectively opposed and eliminated".
The ministers concluded the conference with a Declaration and Plan of Action that reaffirmed their commitments to human rights, the rule of law, and democracy. They recognized that human rights are founded on respect for the sanctity of life, human dignity, tolerance of differences, prosperity and stability.
The declaration "urges all African states to work assiduously towards the elimination of discrimination against women and the abolition of cultural practices which dehumanize or demean women and children." The declaration also calls on African states to eradicate genocide on the continent and to ratify the African Charter on the Rights and Welfare of the Child, the Protocol on the Establishment of an African Court on Human and Peoples' Rights, the Four Geneva Conventions, the UN Statute of the International Criminal Court, and a number of other major UN human rights conventions.
Furthermore, the declaration recognizes that the promotion and protection of human rights are primarily state responsibilities. Therefore, it calls on African states to establish and adequately fund national human rights institutions and to "engage in a process of continuous dialogue with the African Human Rights Commission."
It took nine years to get fifteen African states to ratify the African Charter on the Rights and Welfare of the Child so that it could come into force. Africans have high hopes for the court and believe its existence will make African leaders more conscious of their human rights obligations. The court will improve the grave human rights situation whose causes are primarily economic, demographic and political.
The uniqueness of the African charter, which the court is mandated to administer, lays in the originality of its normative content. The charter has unusual features, in the sense that it covers economic, social and cultural rights as well as civil and political rights, which actually distinguishes it from both the European and the American Conventions which follow a more traditional methodology. Furthermore, the African Charter covers third generation rights, and gives due importance to the assumption that a person has duties as well as rights in the community.