A Committee of Experts (Art. 32 of the African Charter on the Rights and Welfare of the Child 1990) monitors the Charter on the Rights and Welfare of the Child. The first meeting of the Committee was held in 2002. It has a broad mandate to promote and protect the rights and welfare of the child (Art. 42 of the African Charter on the Rights and Welfare of the Child 1990). Unlike the United Nations Committee, the Committee of Experts has competence to receive individual complaints which are to be dealt with confidentially (Art. 44 Art. 42 of the African Charter on the Rights and Welfare of the Child 1990) though in line with the approach of the United Nations, reports of the Committee are to be widely disseminated.
The African Court of Human and Peoples’ Rights
The date 25 January, 2004 is a memorable date for the Africans and all those other advocates of human rights protection all over the world. This date marked the entry into force of the Protocol which established the African Court on Human and Peoples’ Rights.
Article 66 of the African Charter lays down the special protocols or agreements may, where necessary, supplement the provisions of the Charter. This Article did not remain a dead letter, as it was precisely by virtue of a Protocol that, in June 1998, the States parties to the African Charter created the African Court of Human and Peoples' Rights, a judicial body intended to reinforce the safeguards of safe mechanism instituted by the African Charter in 1981. Article 1 of the Protocol establishes the Court, emphasizing that it is established within the framework of the African Union (hereinafter AU). We will now go on to consider, in turn, the organization, operation, functions and procedures of this Court.
1. Organization of the Court
We will consider the composition of the Court, the question of its seat and the material and human resources at its disposal.
Article 11 of the Protocol lays down that the Court shall be composed of eleven judges and that in no case may it include more than one national from the same state. To be eligible, candidates must meet certain condition and, once they are elected, the exercise of their office must comply with certain rules.
Under the terms of Article 21 of the Protocol, the Court shall elect its President and one Vice-President for a period of two years, and both may be re-elected once; their functions shall be set out in the Rules of Procedure of the Court, and the president shall perform his functions on a full-time basis and shall reside at the at of the Court.
2. Operation of the Court
The Protocol is relatively discreet on the operation of the Court, and it will therefore be for the court to lay down the precise details of this in its Rules of Procedure. We will here consider some of the rather unusual aspects of the operation of the Court regulated by the Protocol, taking them one by one.
Rules of Procedure
Article 33 of the Protocol provides that the Court shall draw up its Rules and determine its own procedures and shall consult the Commission as appropriate. Here, it should be recalled that the Court is, in fact, designed to "complement" the African Commission (Art. 2 of the Protocol, and Para. 7 of its preamble). As the Court is essentially assigned judicial functions, consultation between these two bodies should focus on specifying the functions of the African Commission. 2401 This point is made by Article 8 (entitled" Consideration of cases"), stipulating as it does that
"the Rules of Procedure of the Court shall lay down the detailed conditions under which the Court shall consider cases brought before it, bearing in mind the complementarity between the Commission and the Court".
3. Functions of the Court
The Protocol lays down at the outset, in Article2, that the Court shall, bearing in mind the provisions of this Protocol, "complement the protective mandate of the African Commission", a reading of Articles 3 and 4 shows that the Court has a twofold function: contentious and advisory.
A. Contentious Functions
We will now consider the contentious function of the African Court, looking in turn at it jurisdiction, the procedure followed during the consideration of the cases brought before it and the decisions it has the power to take.
i. Jurisdiction of the Court
As the provisions of the Protocol do not clearly delimit the jurisdiction of the Court, we will endeavor to sketch in its major outlines, including it material, personal, territorial and temporal aspects.
1. Material jurisdiction or jurisdiction ratione materiae
Article 3 (1) of the Protocol provides for very broad jurisdiction, stating that:
"The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol, and any other relevant Human rights instrument ratified by the states concerned".
The formula enshrined in Article 3 of the Protocol is most original; it is broad and generous. To begin with, it makes it possible to invoke before the Court the violation of the provisions of the African Charter which, as we have seen, constitute a bold juxtaposition of individual rights and collective rights, civil and political rights and economic, social and cultural rights, as well as rights and duties. The originality of Article 3 of the Protocol resides in the fact that the Court could also consider the interpretation and application not only of the Protocol itself, which seems self-evident, 2419 although the Protocol does not recognize any human right, but also and above all it could consider any other legal human rights instrument "ratified by the States concerned"
Only two limitations are laid down by Article 3; the instrument concerned must be a convention (as suggested by the ratification requirement) and it must have been ratified by 'the States concerned". The principle of the relative effect of treaties means that the expression just referred to must be seen as the requirement that both the Applicant State and the Respondent State must have ratified the convention concerned, in the event of a communication between States.
Theoretically, Article 3 of the Protocol thus authorizes the African Court to gear all cases or disputes concerning, for expel, the interpretation or application of the very protective provisions of the two United Nations Covenants of 1966, to which virtually all African States are parties, or those of the 1990 African Charter on the Rights and Welfare of the Child or the 1969 OAU Refugee Convention.
2. Personal jurisdiction or jurisdiction ratione personae
The question of the jurisdiction ratione personae of the African Court certainly raised a number of problems during the process of the elaboration of the Protocol. In its very first version, the protocol laid down, in Article 5, that cases could be brought before the Court by the African Commission, and by the state party against which the complaint has been lodged at the Commission, its Article 6 (entitled "Exceptional Jurisdiction") also laid down that "the Court may, on exceptional grounds, allow individuals, non-governmental organizations and groups of individuals to bring cases before the Court, without first proceeding under Article 55 of the Charter".
We will now consider the jurisdiction ratione personae of the Court as regards the Applicant and the Respondent; we will also briefly consider the possibility open toe certain States to intervene in the proceedings.
I. Jurisdiction ratione personae with respect to the Applicant
As defined by the Protocol, access to the African Court is relatively liberal when compared with the American Convention or what it was prior to 1 November 1998 in the European Convention. For under the terms of Article 5 of the Protocol, the following are entitled to submit cases to the Court:
1. the African Commission,
2. the State party which has lodged a complaint to the Commission,
3. the State party against which the complaint has been lodged at the Commission,
4. the state party whose citizen is a victim of a human rights violation, and
5. African Intergovernmental Organizations.
A case may also be brought before the Court by a non- governmental organization with observer status before the Commission, or an individual, provided the State concerned has made a declaration accepting the jurisdiction of the Court to receive such cases. The Protocol therefore lays down the compulsory jurisdiction of the African Court for all cases brought before it by the Commission, a State party or an African inter-governmental organization, and the optional jurisdiction of the Court as regards cases brought by an individual or a non-governmental organization.
As defined by the Protocol, the jurisdiction of the Court in contentious matters is not necessarily intended to be exercised in an extension of proceedings before the Commission. The travail repertoires of the protocol show that it was originally planned to include all proceedings before the Court in the immediate extension of those brought before the Commission, but that this idea way subsequently abandoned.
The abandonment of the formula initially chosen by the authors of the Protocol means that it can be concluded without hesitation that they did not intend to limit the jurisdiction of the Court solely to cases brought before the Commission, The first type of case covers those already having been the object of proceedings before the African Commission and subsequently referred to the Court by the Commission itself or by a State party which has lodged the complaint to the Commission a State party against which the complaint has been lodged at the Commission or a State party whose citizen is the victim of the human rights violation brought to the consideration of the Commission. In this first type, the question is at what stage in the proceedings before the Commission the case may be brought before the Court. In the Inter-American context, a case cannot be bought before the Court until a relatively advanced stage in the proceedings before the Commission. Since the Protocol is silent on the matter, and failing any contrary indication in the Rues of Court, as soon as a case is brought before the Commission, both the Applicant State and the respondent State or the State whose national the victim is could bring a case before the Court, on the sole condition that they are parties to the Protocol.
The second type of cases covers those submitted directly to the Court by a state or” African intergovernmental” organization without any proceedings having been instituted before the African Commission. The drafting of Article5 (1 d) is sufficiently vague to permit a case to be brought before the court by a State whose national is the victim of the violation of aright, whether a case regarding this violation has been brought before the commission or not.
The third type of case covers those brought directly before the Court by an individual or non-governmental organization without any proceedings having been instituted before the African Commission. This is indicated by Article 5 (3) of the Protocol, which states that:
“The Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission and individuals to institute cases directly before it, in accordance with Aricle34 (6) of this Protocol”.
Article 34 (6) of the Protocol lays down the procedure for the deposit of the optional declaration of acceptance of the compulsory jurisdiction of the Court. However, it is silent on whether this decoration can be made only for specific cases or for a specified period of time: for its part, the Protocol to the African Charter does not require the individual to be the victim of the alleged violation; nor does it lay down this requirement for a non-governmental organization wishing to bring a case before the Court. The court ought therefore to make a liberal interpretation of the relevant provisions of the Protocol when drafting its Rules and not require the author of an application to be the victim of the alleged violation.
Lastly, attention should be drawn to a small ambiguity in article 5 (3). What indeed, is the meaning of the expression “The Court may entitle”? This form of words would suggest that the Court’s jurisdiction is not automatic and that bringing a case before it depends upon its discretionary power. Yet, the reference to Article 34 (6) confirms that the only condition on bringing a case in this way is the deposit of a declaration of acceptance of the jurisdiction of the Court by the state concerned. At this stage, the Court’s only discretionary power would be to ascertain the existence of such a declaration, as well as the observer status of the non-governmental organization concerned. Be this as it may, the Court has the “competence de as competence”. The power to determine its own jurisdiction, as clearly shown by article 3 (2) of the Protocol; in other words, “in the event of a dispute as to whether the Court has jurisdiction, the Court shall decide”. Ultimately, there was no need to stipulate that the “Court may entitle” non-governmental organizations and individuals to institute cases directly before it; such permission falls within the sole domain of States parties to the Protocol.
II. Jurisdiction ratione personae with respect to the Respondent
Every State party to the Protocol may be brought before the Court by the African Commission, a State party or by an African inter-organizational organization, without it needing to give its consent either by the prior deposit of a declaration of acceptance of the compulsory jurisdiction or the Court or in any other way; the jurisdiction of the Court is compulsory for it solely by virtue of its accession to the Protocol. In the Inter-American system, the jurisdiction of the Court is optional; this was also the case in the European system prior to the entry into force of Protocol No.11, which made this jurisdiction compulsory regardless of the status of the complaint.
However, a State party to the Protocol cannot be brought before the Court by an individual or a non-governmental organization unless it has first made the declaration laid down in Article 34 (6), by which it accepts the Court’s jurisdiction to deal with such cases. 2455 The question arises whether a State may nevertheless agree to be brought before the Court by expressing its consent on a case-by-case basis, other than by the prior deposit of its declaration as laid down in Article 34 (6).
III. The opportunity to intervene for states with an interest in a case
Article 5 (2) of the Protocol states that” (w)hen a State party has an interest in a case, it may submit a request to the Court to be permitted to join”. The wording of this provision is not particularly fortunate since it seems to be an amalgam of two quite different legal institutions – the joinder of cases and the intervention of a third State in a case. For a judicial body, the joinder of cases entails the consideration of two or more interrelated cased, the initiative for such joinder lying with the judicial body concerned. The purpose of intervention is quite different. In general, when a State has an interest in a case between two other States, it may submit a request to the Court to be permitted to intervene; moreover this is the language used in the French version of this provision, and also that of Article 62 (1) of the Statute of the International Court of Justice.
3. Temporal jurisdiction or jurisdiction ratione temporis
As the Protocol provides no pointers on the question of the Court’s jurisdiction ratione temporis, the organ should as a rule only hear cases and disputes which have arisen after the date of the entry into force of the Protocol with respect to each state party concerned; this is the solution which would be dictated by the strict application of the principle of the non-retroactivity of conventions.
However, the aim and purpose of the Protocol point towards a contrary solution. Indeed, it could be asserted that the intention of the authors of the protocol was to improve the operation of the safeguards system of the African Carter as soon as possible. It will be recalled that, in the preamble of the Protocol, the AU Member States declared themselves
“(f)irmly convinced that the attainment of the objectives of the African Charter on Human and Peoples’ Rights requires the establishment of an African Court on Human and Peoples’ Rights to complement and reinforce the functions of the African Commission on Human and Peoples’ Rights”;
Article 2 of the Protocol also lays down that “the Court shall (---) complement the protective mandate of the African Commission”.
4. Territorial jurisdiction or jurisdiction ratione loci
On this point too the protocol is silent. It may therefore be deduced that the extent o the Court’s territorial jurisdiction coincides with that of the Commission. The Court could thus deal with violations of human and peoples’ rights falling within the material scope of Article 3 (1) and occurring in the territory of any State party to the Protocol. The broad wording of Article 3 does not prevent the Court from also dealing with violations which can be imputed to a State party even if they occurred outside the territory falling within its jurisdiction.
ii. Procedure before the Court
- Consideration of applications as regards their admissibility
The Protocol devotes only three short paragraphs to the question of the admissibility of applications and the least that can be said is that the way it deals with this important matter is not very satisfactory owing to its lack of clarity. Indeed, Article 6 entitled “Admissibility of Cases” reads as follows:
- The Court, when deciding on the admissibility of a case instituted under Article 5 (3) of this Protocol, may request the opinion of the Commission which shall give it as soon as possible.
- The Court shall rule on the admissibility of cases taking into account the provisions as Article 56 of the Charter.
- The Court may consider cases or transfer them to the Commission”.
It is patently clear from a reading of the first paragraph of this article that it relates solely to cases brought before the Court by an “individual” or a “non-governmental organization”. This provision lays down a simple option for the court, not obligation.
Notwithstanding the admissibility of a case on the basis of the strict conditions set forth in Article 6 of the Protocol and 56 of the Charter, the Court may request the opinion of the Commission before ruling on the admissibility of a complaint.
However, the Statute of the Court does not clearly indicate the procedure to be followed or the conditions under which a case begun or referred to the Commission by the Court may be subsequently referred to the Court.
- Consideration of the application on the merits
Africa 8 of the Protocol is entitled “Consideration of cases” and states that
“(t)he Rules of Procedure of the Court shall lay down the detailed conditions under which the Court shall consider cases brought before it, bearing in mind the complementarily between the Commission and the Court”.
Like the American and European Conventions, the Protocol thus gives few details regarding the procedure for the consideration of applications on the merits. However, it seeks to regulate certain specifies matters such as the court hearing a case, laying down the exclusion of a judge if he is a national of State party to a case submitted to the court, or the option given to the Court to make no-site visits. It also regulates other equally specific and important matters such as sources of law, hearings and representation, evidence, interim measures, amicable settlement, and findings.
- Judgments of the Court
The judgment of the Court decided by majority would be final, and not subject to appeal. However, the Court is empowered to review its decisions in the light of new evidence, under conditions that would be set out in its Rules Of Procedure. At the same time, the Court enjoys the power to interpret its decisions.
Under the terms of article 28 of the Protocol, the Court “shall render its judgment within ninety (90) days of having completed its deliberations”. The immediate question which arises here is how appropriate it is to impose on the Court a time-limit for delivering its judgments. The idea here was certainly to prevent cases from dragging on endlessly before the Court after being considered. However, it might prove difficult for the Court systematically to respect such a 90-day time-limit. Owing to the inadequacy of the human and material resources of it Registry, the Court might find itself unable to produce a judgment within the time-limit allocated.
It is interesting to note that article 29 lays down that the judgment of the Court shall be notified not only to the parties to the case, the member States of the AU and the African Commission, but also to the AU Council of Ministers, which “shall monitor its execution on behalf of the assembly” of Heads of state and Government. This is an important provision, whose purpose is to ensure that the Court’s decision is made public and to guarantee it performance by the political organs of the regional organization.
B. Advisory Function
The Protocol also confers an advisory function on the African Court, like the American and European Human Rights Courts, whose powers in this respect are governed respectively by Article 64 of the American Convention and Articles 47 to 49 to the European Convention, as amended by Protocol No. 11.
Indeed, Article 4 of the Protocol entitled "Advisory Opinions" reads as follows:
"1. At the request of a Member State of the AU, the AU, any of its organs, or any African organization recognized by the AU, the Court may provide an opinion on any legal mater relating to the charter or any relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.
2. The Court shall give reasons for its advisory opinions provided that every judge shall be entitled to deliver a separate or dissenting decision (sic)”.
We will consider in turn who the potential instigator of a request for an advisory opinion are, the material scope of the jurisdiction of the Court in this domain and also the action the Court can take on receipt of such a request.
i. Initiative for a request for an advisory opinion
The first point to note is that Article 4 of the Protocol is relatively liberal in this respect, since to authorize requests for advisory opinions not only by states parties to the Protocol and other members of the organization of African Unity, but also by that organization and each of its organs, as well as by “any African Organization recognized by the AU”. It will be recalled that article45 (3) of the African Charter also authorizes the African Commission to interpret any provision of the Charter “at the request of a state Party, an institution of the AU or an African Organization recognized by the AU”.
The solution adopted by the Protocol differs somewhat from the one adopted by the African Charter concerning the African Commission’s power of interpretation, since the Protocol does not limit access to the advisory function solely to states “parties”. This solution also differs appreciably from the one adopted in the European system where only the Committee of ministers may request an advisory opinion. On the other hand, it is similar to the solution favored in the Inter-American system in that many of the Member States of the Organization of American States, and also some of its organs, may bring a case before the Court: the only major difference lies in the fact that the Protocol does not specify which these organs are.
ii. Material scope of the Court’s advisory jurisdiction
The Court has relatively broad advisory jurisdiction, extending as it does to both to African Charter itself and “any relevant human rights instrument”, which includes not only all regional or universal human rights treaties, the Protocol included, but also the other formally non-binding legal instruments such as the resolutions of relevant bodies (African Commission, United Nations General Assembly, etc). There are only two imitations no the jurisdiction of the court: the opinion may only concern a “legal matter” and it should not be ‘related to a matter being examined by the Commission”.
The purpose of the latter limitation is probably to prevent the Court, in the exercise of its advisor unction, from prejudicing the integrity of the quasi-judicial junction of the African Commission as regards the protection of human and peoples’ rights, and to protect the Commission’s full freedom of decision. It would, moreover, be most regrettable were the Commission and the court to give divergent interpretations of the same legal issue. In this connection, it African Commission is vested with the power to interpret any provision of the Charter outside any consideration of a case pending before it. However, Article 4 of the Protocol did not envisage such a potential conflict between the respective powers of the Court and the Commission in this area.
iii. Action following a request for an advisory opinion
Essentially, it should be noted that the language of Article 4 (1) is permissive (“the Court may provide”); in other words, the Court’s power to issue advisory opinions is purely discretionary like that of the other regional courts or the International Court of Justice. Indeed, the Court could decline to issue an opinion on grounds of judicial expediency, even if the conditions for submitting a request to it laid down by Article 4 are met. Yet, this discretionary power is not infinite, for, as the inter-American Court has stated:
“This broad power of appreciation (of the American Court) should not be confused, however, with unfettered discretion to grant or deny a request for an advisory opinion. The Court must have compelling reasons founded in the conviction that the request exceeds the limits of its advisory jurisdiction under the Convention before it nay refrain from complying with a request for an opinion. Moreover, any decision by the Court declining to render an advisory opinion must conform to the provisions of Article 66 of the Convention, which require that reasons be given for the decision”.
The African Court should not, therefore, decline to act on a request for an advisory opinion unless there are compelling reasons for doing so. Be this as it may, it must in the reasoning of its opinion explain why it has declined. Article 4 (2) of the Protocol places and obligation on the court to give reasons for its opinions and this obligation applies regardless of whatever action is actually taken.
Lastly, it should be noted that although the question of the legal force of the Court’s advisory opinions was not dealt with by the Protocol, it is nevertheless clear that, as their name suggests, they are solely advisory. Yet while not binding, the advisory opinions delivered by international judicial bodies are not bereft of all legal force and generally possess great moral authority. The same authority ought therefore also to characterize the advisory opinions of the African Court; yet that authority will largely depend on the nature of the questions they relate to and the quality of the legal reasoning which underpins them.