The Unique Jurisdiction of the African Court on Human and People's Rights: Protection of Human Rights Beyond the African Charter

• Citation: Vol. 33 No. 2
• Publication year: 2019

The Unique Jurisdiction of the African Court on Human and People's Rights: Protection of Human Rights Beyond the African Charter

Yakaré-Oulé (Nani) Jansen Reventlow

Rosa Curling

THE UNIQUE JURISDICTION OF THE AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS: PROTECTION OF HUMAN RIGHTS BEYOND THE AFRICAN CHARTER

Yakaré-Oulé (Nani) Jansen Reventlow Rosa Curling^*

Introduction

This Article seeks to explore the jurisdiction of the African Court on Human and Peoples' Rights (the Court) to consider human rights violations under treaties other than the African Charter on Human and Peoples' Rights (the Charter).¹ Unlike its regional counterparts—the Inter-American Court of Human Rights or the European Court of Human Rights (the Inter-American Court and the European Court, respectively)—the African Court does not restrict itself to considering human rights violations exclusively under the regional human rights system under which it was established. This raises questions as to how the Court exercises its jurisdictional powers as it establishes its jurisprudence, which we seek to take initial stock of here.

First, the authors summarize the legal mandate given to the Court by 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).² Second, an overview is provided of the Court's case law as it relates to the interpretation of this mandate, focusing on the issue of the Court's approach to violations of other treaties than the Charter, either at its own initiative or in response to submissions made by the parties. Analysis reveals that the Court does not yet have a consistent approach on matters of jurisdiction, which, in the interests of the applicants and participating Member States, we would invite it to cultivate. In the third section, the authors sketch a number of possible routes the Court could consider taking in this regard.

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I. The Unique Jurisdiction of the Court

A. The Parameters of the Court's Mandate

The Court's powers and responsibilities are set out in the Protocol, which states that the Court's mandate complements the protective mandate of the African Commission on Human and Peoples' Rights (the Commission).³ Article 3 of the Protocol asserts that the Court has jurisdiction to make decisions on all cases and disputes, that concern the interpretation and application of the Charter and Protocol, as well as "any other" relevant human rights instrument ratified by the States concerned.⁴ The Court therefore has jurisdiction to consider human rights violations under treaties other than its foundational treaty, the African Charter. This, as is set out in the following section, is a unique feature compared to other regional human rights courts, which in their contentious jurisdiction—as opposed to the courts' advisory competence—are limited to the human rights treaties whose implementation they were established to oversee.

It is important to note that the comparison drawn in this article is one between the Court and other regional human rights courts—the Inter-American Court and the European Court—that have the power to issue binding decisions under the human rights instruments they were established to oversee. Within the African human rights system, the Court's powers cannot be considered unique: the Commission has the same jurisdiction, but its decisions are not binding. The sub-regional courts with human rights jurisdiction—the Economic Community of West African States (ECOWAS) Community Court of Justice⁵ and the East African Court of Justice⁶ —arguably have a similar jurisdictional scope but were

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not established as courts intended to oversee compliance with the region's human rights treaty: the Charter.

The wording of Article 3 shows that the drafters of the Protocol chose to explicitly bestow the Court with this extended jurisdictional scope, but there are unfortunately no travaux préparatoires to assist in interpreting the intention of Article 3. The information that exists is contained in a handful of reports on the state meetings that took place in the course of the drafting process.⁷ Unfortunately, none refers to Article 3 or the intent behind the Court's jurisdictional scope more generally.

Judgments of the Court on contentious matters are binding.⁸ At the request of a Member State or the African Union, the Court also has the power to issue non-binding advisory opinions.⁹ The Commission can refer cases before it on to the Court¹⁰ so long as the State in question has ratified the Protocol. At the time of writing, thirty states have ratified the Protocol.¹¹ Individuals and nongovernmental organizations (NGOs) can also submit complaints directly to the Court¹² if the Member State has made a declaration to this effect, under Article 34(6) of the Protocol. At the time of writing, this was possible only against eight countries.¹³

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B. A Comparison with the Inter-American and European Human Rights Courts

The African Court has the mandate under Article 3 of the Protocol to decide cases that concern not only the Charter and its Protocol, but also any other relevant human rights instrument ratified by the Member State concerned.¹⁴ This is a unique mandate that is not directly matched by either of the Court's regional counterparts: the Inter-American Court or the European. The following section sets out the mandate of these two regional human rights courts in making binding decisions on cases brought before them.

Article 1 (Nature and Legal Organization) of the Inter-American Court's Statute confirms that the Court's mandate is the application and interpretation of the American Convention on Human Rights only.¹⁵ Article 2 (Jurisdiction), addresses the Inter-American Court's adjudicatory and advisory jurisdiction¹⁶ and determines that contentious matters are restricted to findings relating to the Inter-American Convention itself.

In relation to advisory opinions, the Inter-American Court is given a wider scope: Member States may consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states.¹⁷ The Inter-American Court has acknowledged and exercised this possibility of using "other treaties" to interpret the scope of the American Convention¹⁸ in advisory opinions.¹⁹ Similarly, the Inter-American Court has adopted definitions from other international treaties when such definitions are lacking in the American Convention. For example, the American Convention does not include a definition of a child, so the Inter-American Court adopted the one used by the U.N. Convention on the Rights of the Child.²⁰ However, the

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Inter-American Court also made clear that interpretation differs from direct applicability.²¹

The European Court has a narrower jurisdiction. The European Convention on Human Rights (ECHR) states that the European Court considers and applies the European Convention and provides no authority to find violations regarding "other" human rights treaties, whether in advisory or adjudicatory issues.²²

The drafters of the American Convention and the European Convention bestowed a mandate upon the courts established to oversee these respective treaties, requiring them to apply only the relevant regional treaty in their contentious decision-making. The Court's mandate to consider human rights violations under a much broader range of instruments raises important questions, including issues regarding the application of treaties created in international settings.

C. What Are the Implications for the Decision-making Powers of the Court?

The Court's authority to issue binding decisions on "any other relevant human rights instrument ratified by the States concerned" means that its jurisdiction extends beyond applying and interpreting just the African Charter.²³ For example, the Court would be able to determine whether States have fallen short of obligations under, inter-alia, the International Covenant on Civil and Political Rights (ICCPR);²⁴ the Convention Against Torture (CAT);²⁵ and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).²⁶ The committees that were established under these treaties to oversee their implementation by States Parties do not have the power to issue binding decisions.²⁷ As a result, the Court potentially has a greater influence than

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the U.N. Human Rights Committee on the interpretation and application of rights contained in the ICCPR.

The Court's broad adjudication powers also mean that where a particular right is not covered in the African Charter, a citizen of a Member State falling within the Court's jurisdiction still could be protected if that right is contained in another international human rights treaty. Privacy is a good example of such a right. It is not protected by the Charter but is contained in Article 11 of the ICCPR.²⁸ In the current age of intensified surveillance, both in our physical and virtual lives, this increased layer of protection for citizens of Member States could prove significant. The same is also true for LGBTQI rights. These rights are not explicitly protected by the African Charter,²⁹ but case law clearly establishes that they are protected by other human rights treaties such as the ICCPR.³⁰

In due course, the Court will likely need to determine whether it is willing to resolve complaints relating to these rights. This will entail careful consideration and a balancing of the scope of rights as intended by the drafters of the Charter with those protected by other human rights treaties.

The extensive scope of the Court's jurisdiction might lead to some challenges given the slightly fragile buy-in of some of the African Union Member States: as set out above, the number of ratifications of the Protocol is still relatively low, and only a handful of states have made declarations allowing

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their citizens...