They are conveniently happy for the African Court
Posted: Tue Feb 18, 2025 4:12 am
In November 2015, CAL partnered with the Centre for Human Rights (University of Pretoria) to request an advisory opinion from the African Court on the legality of the Executive Council directive. In September 2017, the African Court delivered its opinion, focusing on the legal standing of the applicants to file the request rather than on its merits. The Court held that it could not render a substantive opinion because the applicants lacked locus standi (see relevant critique here). In its 43rd Activity Report dated January 2018, the ACHPR explained that it could not withdraw CAL’s observer status as this was properly granted and that it is mandated under the African Charter to promote and protect the rights of everyone. In response, an apparently infuriated Executive Council once again demanded that CAL’s observer status be withdrawn (Decision EX.C/Dec.995(XXXII)). It also requested the ACHPR to hold a joint retreat with the PRC to “resolve various concerns about the relationship between the ACHPR and the policy organs and Member States”. The retreat took place from 4 to 6 June in Nairobi, Kenya, and is the source of the above Executive Council decisions.
Overlap in Mandates
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 skype database complaints (African Court Protocol, art 2). The ensuing overlap has not resulted in conflicting jurisprudence. 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. 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.
Overlap in Mandates
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 skype database complaints (African Court Protocol, art 2). The ensuing overlap has not resulted in conflicting jurisprudence. 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. 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.