African Human Rights Court fails to protect the rights of individuals and groups

When African states gave in to pressure to create an African human rights mechanism, they were more concerned with sovereignty and non-interference than with the protection of the rights of individuals and groups on the continent. As a result, weak institutions were created, catering to the interests of the state.

Research from the University of Ulster, in theUK, reviews the history of the African Charter and the subsequent establishmentof the African Commission and the African Court of Human and Peoples’ Rights.An examination of the processes and motivations involved casts doubt on theextent to which these institutions might protect human rights in Africa.

Bymaking provision for an African human rights commission, African states wereable to establish a human rights system that was, in theory, similar to that inmost developed countries. The African Charter on Humanand Peoples’ Rights came into force in 1986 and created the African Commission.But as a weak supervisory mechanism, it made few demands on African states interms of accepting a higher human rights authority than that of their nationalcourts.

Pressure was then exerted upon African states, inparticular by international non-governmental organisations, to set up anAfrican human rights court. This resulted in the adoption in 1998 of theProtocol Establishing the African Court on Human and Peoples’ Rights. In 2004, the African Union (AU) decided to merge the African Court of Justice and the African Court onHuman and Peoples’ Rights, though this is yet to take place.

The African Court on Human and Peoples’ Rights suffersfrom a number of problems:

• Like the Commission before it,the Court is subservient to the AU, and there are issues regarding theindependence of its members.
• Both bodies are poorly fundedand have to compete with each other for scarce resources.
• The Protocol Establishing theCourt prevents individuals from bringing cases to court unless a declarationaccepting the right of individual petition has been made by the state concerned.
• Although the Protocol makesprovision for the enforcement of rights and the Court has the ability to issuebinding judgments, it is naïve to expect states to comply with them.
• The merger of the two courts is said to be forfinancial reasons, but the new court will include judges without human rightsexpertise.
• The Protocol allows complaints to be brought not onlyon the basis of the African Charter, but also on the basis of any other humanrights instrument ratified by individual states. This may lead to a weakenedform of human rights protection for Africa.

The study concludes that:

• It is unlikely that theAfrican Court on Human and Peoples’ Rights will be more effective than itspredecessor, the African Commission.
• Given the constraints onindividuals to petition the Court, it may even be less effective than theCommission in protecting human rights.
• Although African leaders maymake concessions to outside demands, they will not do anything that willcompromise their position of privilege and power.