By Mapula Thebe

The Law Society of South Africa (LSSA) held a colloquium on the African Court on Human and People’s Rights (AC) on 8 October. The colloquium was held because the LSSA recognised the need to raise public awareness about the existence, functions and accessibility of the AC. The LSSA further recognises the importance of depositing the art 34(6) declaration, especially since South Africa is yet to make such a declaration and its citizens, therefore, cannot approach the AC at this stage.

Facts about the AC

The AC was established by virtue of art 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol). The organisation, jurisdiction and functioning of the AC are governed by the Protocol. The AC officially started operating in November 2006.

One of the objectives of the AC is to complement the protective mandate of the African Commission of Human and Peoples’ Rights (the Commission).

Protocol and declaration

President of the African Court, Justice Augustino Ramadhani, speaking at the colloquium on the African Court on Human and People’s Rights held by the Law Society of South Africa.

Since its adoption in 1998, only 27 of the 54 member states of the African Union (AU) have ratified the Protocol, South Africa being one of them. However, in addition to ratification of the Protocol, states have to make a declaration in terms of art 34(6) of the Protocol to allow individuals and non-governmental organisations (NGOs) to bring cases to the AC. Without the declaration the court will have no jurisdiction over cases brought by individuals and NGOs. Only seven states have made the declaration. South Africa has not yet made the declaration.

Article 34(6) provides: ‘At the time of the ratification of this Protocol or any time thereafter, the state shall make a declaration accepting the competence of the court to receive cases under article 5(3) of this Protocol. The court shall not receive any petition under article 5(3) involving a state party which has not made such a declaration.’

Summary of salient provisions relating to the AC

• Jurisdiction (art 3 of the Protocol):
  • All cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples’ Rights (the Charter), the Protocol and any other relevant Human Rights instrument ratified by the states concerned, the AC decides whether it has jurisdiction.
• Access to AC (art 5 of the Protocol):
  • The following may submit cases –
  • the Commission;
  • a state party, which had lodged a complaint to the Commission;
  • a state party against which a complaint had been lodged at the Commission; and
  • a state party whose citizen is a victim of human rights violations.
  • A state party can ask to be joined where it has an interest in a case.
  • The AC may allow NGOs, with observer status, before the Commission and individuals (art 5(3)). However, the AC may not receive petition from an NGO or individual involving a state party, which has not made a declaration (art 34(6)).
• Admissibility (art 6 of the Protocol):
  • The AC will ask for the Commission’s opinion when deciding on the admissibility of a case instituted under art 5(3) (NGOs and individuals).
  • The AC shall rule on admissibility taking into account art 56 of the Charter.
  • The AC may hear a matter or refer it to the Commission.
• Communications to the Commission (art 56 of Charter) can be considered if, inter alia –
  • all local remedies, if any, have been exhausted, unless it is obvious that the procedure is unduly prolonged;
  • submitted within reasonable time from exhaustion of remedies; and
  • the matter is not yet settled by states.
• Composition of AC (art 11 of the Protocol) –
  • 11 judges, elected by Assembly of Heads of State and Government of the African Union (the Assembly). The term of office is six years with only one re-election.
• Sittings: Quorum of at least seven (art 23 of the Protocol).
• Proceedings and hearings (art 10, 25 of the Protocol):
  • The AC may hold hearings in public, but may also hold hearings in camera if it is in interest of public morality, safety or order.
  • Any party entitled to representative of his or her choice may attend a hearing.
  • The AC will hear submissions by all parties and, if necessary hold an inquiry.
  • During hearings, the states concerned shall give facilities.
  • Written and oral evidence, including expert testimony are permitted during hearings.
• Findings of AC (art 27 of the Protocol):
  • If the AC thinks there is a violation, it will issue an appropriate order to remedy the violation.
  • The AC can include fair and adequate compensation or reparation.
  • If urgent, or when necessary, the AC can adopt provisional measures (eg, where there is imminent execution).
• Judgments of AC (art 28 of the Protocol):
  • Judgments are legally binding.
  • The AC must give judgment within 90 days of having completed deliberations.
  • Judgments are decided on majority.
  • Judgments are final and not subject to appeal.
  • However, where there is new evidence that a party did not know about at the time the judgment was delivered, the matter can be reviewed.
  • Reasons for judgment shall be given.
  • Any judge can give dissenting opinion.
• Execution of judgment (arts 30, 31 of the Protocol):
  • State parties undertake to comply with judgment.
  • The AC shall submit report to assembly.
  • The Executive Council of the Organisation of African Unity (OAU) must monitor the implementation of the judgment on behalf of the Assembly.
• Advisory opinions:
  • The AC will provide an opinion on any legal matter relating to the Charter or other human rights instrument at the request of a member of the OAU, any of its organs, or any African organisation recognised by the OAU (art 4 of the Protocol).
  • The subject matter may not be related to a matter that is being examined by the Commission.
  • The AC must give reasons for its opinion.
  • Every judge may give dissenting decision.
• Rules of Court:
  • The AC has its own rules dealing with procedure.

Word from the LSSA

Immediate past Co-chairperson of the LSSA, Etienne Barnard, gave the opening address on behalf of the other immediate past Co-chairperson, Max Boqwana, who could not attend the colloquium.

Mr Barnard said that the colloquium comes at a time when international law and international human rights are occupying both national and continental discourse. ‘In many instances, the debates around these issues seem to generate more heat than light. This discussion, in one’s view, tend to reflect the conflict or collision of politics and the law. The great debate in this country and the rest of the continent is whether or not to leave the International Criminal Court (ICC). Whatever the outcome of this debate, one thing clear is that the legitimacy and credibility of the ICC is totally undermined’.

Speaking about the ICC, Mr Barnard said: ‘There are a couple of issues that calls the credibility of the court into question –

• the funding of the court gives powers to those who finance it to dictate its agenda;
• the appointment of its judges still remains a mystery;
• the exclusive focus on prosecution of Africans, despite whatever justification, is becoming difficult to countenance;
• the behavior of the court itself has undermined its own credibility, the latest being its authorisation for the continued detention of Laurent Gbagbo without trial and as an exercise in “pre-emptive justice”’.

Quoting Mr Boqwana, Mr Barnard said that there can never be any reason for Africans to walk away from justice. ‘There can never be a justification for impunity, genocide, war crime, mass murder and ethnic cleansing. We need to ensure that the masses of Africans have protection from impunity and abuse of human rights. We know that too often many African countries are too weak to deal with these matters individually,’ he said.

Mr Barnard went on to say that thankfully leaders on the continent have options when dealing with the ICC matter. ‘One option is to engage the rest of the Assembly of States that signed the Rome Statute and propose a review of the way the ICC works and treat the continent. In the same vain, relook at the court’s finance model and vigorously argue for the court to be released from the clutches of the Western politics and influence, in particular by those that refuse to sign the statute. If it can then be proved that the court subscribe to the principles of fairness, justice and even-handedness, independence in all accounts then all of us will be behind this court. Then alternatively, and what is really possible, is for Africa to capacitate and strengthen the African Court on Human and People’s Rights,’ he said.

Word from the court

President of the African Court, Justice Augustino Ramadhani, gave a brief overview of the AC. Justice Ramadhani said that South Africans cannot approach the AC as the government has not signed the declaration. He said that it is important for attorneys to engage with government and other stakeholders to ensure that the declaration is signed. ‘Some government officials are afraid that their dirty laundry will be washed at the court. But, before an individual or NGO approaches the court they would have had to exhaust all local remedies, their dirty laundry would have already been washed in their countries,’ he said.

Deputy Registrar of the African Court, Nouhou Diallo, said that if South Africa signs the declaration, this will encourage southern African countries to do the same.

Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) editor of De Rebus.

This article was first published in De Rebus in 2015 (Nov) DR 9.