The mandate of the ACHPR to interpret the African Charter undoubtedly overlaps with that of the African Court. This overlap, however, is neither accidental nor a sufficient reason to strip the ACHPR of its interpretative mandate. The African Court was created for the specific purpose of complementing the mandate of the ACHPR to determine complaints (African Court Protocol, art 2). Instead, the ACHPR’s jurisprudence has enriched that of the Court. Reviewing ACHPR’s mandate will restrict access to it and deny victims of human rights violations the right to effective remedies.
Citing the overlap in mandates as the basis for a review is an attempt to conceal the fact that most AU member states are intent on frustrating scrutiny of domestic human rights policies and practices. They are conveniently happy for the African Court to be the sole body with the mandate to interpret the African Charter because it has a limited or no application to them. Since the African Charter has been ratified by all AU member states except Morocco, African citizens can directly file complaints before the ACHPR. However, 45% of AU member states have not ratified the African Court Protocol. More importantly, only eight of the 30 countries that have ratified the African Court Protocol have made a declaration allowing individuals and NGOs to directly file cases before the African Court (See African Court Protocol, Art. 34(6)). This means that the Court is not accessible to the majority of African citizens. It thus offers little chance for them to hold their governments accountable. When domestic legal systems fail them, the ACHPR, and to a lesser extent the African Children’s Rights Committee, are their only hope within the continent.
Relationship with NGOs
The directive to the ACHPR to align its criteria for granting truemoney database observer status with that of the AU is a culmination of many years of member states’ efforts to unduly control how and with which NGOs the ACHPR interacts. The AU criteria for granting observer status to NGOs (Decision EX.CL/230 (VII)) and its Statute of the Economic, Social and Cultural Council place overly restrictive requirements on prospective applicants. The most concerning is the requirement that the “basic resources of such an NGO shall be substantially, at least two-thirds, be derived from contributions of its members”. The ACHPR’s criteria are quite flexible; they require NGOs applying for observer status to simply declare their financial resources.
Given the limited financial resources in the region, most NGOs are understandably unable to meet the AU’s requirement. They depend substantially on donor funding. This is not dissimilar with how the AU is funded. The AU covers about 28% of its annual budget, with donors covering the rest of the budget (see here for details). These figures do not extend to the peace and security operations budget, which the AU covers only a mere 2% (Kaberuka Report, Annex 1, para 5). In 2014, the AU Peace and Security Council acknowledged that AU’s financial requirement had hindered many CSOs from participating in its activities (Maseru Conclusions, para 4(d)). It resolved to adopt a “flexible application”, which has allowed a relatively wide range of NGOs to now participate in its activities. If it is compelled to abandon its flexible criteria and adopt the AU approach, the ACHPR will close its doors on many of its partners who have supported its work for decades.