Developments from the 48th Ordinary Session of the African Court on Human and Peoples’ Rights
In the last week of February 2018, Africa’s principal human and peoples’ rights judicial organ, the African Court on Human and Peoples’ Rights, commenced its 48th session at its seat in Arusha, Tanzania. Having started its operations in 2008 when its interim rules were finalised, the African Court is a relatively young institution when compared to other sister regional human rights courts.
As at the end of 2017, the African Court had received 147 contentious applications of which 32 have been finalised. Further, all 12 advisory opinions have been finalised. While low, these figures are to be understood in the context of the limited jurisdictional commitment by African States that have signed the African Charter on Human and Peoples’ Rights, which is the African Court’s principal legal instrument. As of February 2018, only 30 of the 55 African Union Member States had ratified the Protocol that establishes the African Court and prescribes its jurisdictional scope, although 52 States have signed it. Of these, eight Member States have deposited the declaration required to recognise the competence of individuals and NGOs to directly access the African Court as required by the Protocol. Further, it is not a full-time court, but holds four ordinary sessions annually with its eleven Judges serving on a part-time basis, except the President who is full-time and based at the seat of the African Court.
Between 2008 and 2013, the African Court’s decisions mainly related to preliminary questions, with many matters being found to be inadmissible or outside the African Court’s personal, material or temporal jurisdiction. Since 2013, however, the African Court has determined more matters on the merits. This can, in part, be attributed to the increase in uptake of the African Court’s jurisdiction by States as a result of the continental sensitisation programmes that the African Court has undertaken to educate States, African citizens and other stakeholders on its mandate and operation. The increased State participation and information on the filing of applications has allowed for increased substantive determinations of issues as more applications are properly brought before the African Court. This has presented an opportunity to pronounce itself on a few of the no doubt numerous unresolved rights questions on the African continent and thus enrich African human and peoples’ rights jurisprudence. A case in point is the African Court’s May 2017 decision, which asserted the land rights of the Ogiek of the Eastern Mau Forest in Kenya whom the African Court recognised as being an indigenous population in that area.
Over the course of this session, the African Court has also hosted judges and staff from the Court of Justice of the Economic Community of West African States (ECOWAS), which is the regional court for the West African economic bloc. This is a welcome development as inter-court dialogue can go a long way in eliminating the dangers attendant with overlapping jurisdiction between regional and sub-regional courts. Here, many ECOWAS member States are parties to both the ECOWAS Court and African Court, with the former also retaining jurisdiction over the human and peoples’ rights set out in the African Charter. As the African Court’s applications increase, the question of how to reconcile issues borne out of intersecting jurisdiction are likely to arise in future cases before it. Further, a deeper familiarity with the substantive jurisprudence of the African Court, as a specialised human and peoples’ rights court, by ECOWAS Court judges and staff can allow that Court to consider and apply the interpretations of the African Charter as set out by the African Court’s jurisprudence.
During the present session, the African Court will hold two public hearings, one of which will consider whether the lack of consular legal assistance for an Ivorian accused sentenced to the death penalty in Tanzania violates the African Charter fair trial guarantees. A number of judgements are also due to be handed down. I will, over the course of my fellowship at the African Court, continue to blog on some of the key outcomes of this session with the view to capture the latest African human and peoples’ rights developments sourced from the Court’s seat under the shadow of Mount Meru.