The African Human Rights Court: A Two-Legged Stool?

I. Introduction

The adoption in June 1998 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (African Human Rights Court) ¹ by the Assembly of Heads of State and Government of the Organization of African Unity (OAU) is potentially an important step in the protection of human rights in the African continental system. ² The African Human Rights Court would complement ³ the African Commission on Human and Peoples’ Rights (African Commission), the body that has exercised continental oversight over human rights since 1987. ⁴ The Protocol suggests that the African Human Rights Court will make the promotion and the protection of human rights within the regional system more effective. ⁵ However the mere addition of a court, although a significant development, is unlikely by itself to address sufficiently the normative and structural weaknesses that have plagued the African human rights system since its inception.

The modern African state, which in many respects is colonial to its core, has been such an egregious human rights violator that skepticism about its ability to create an effective regional human rights system is appropriate. ⁶ Although the African Charter makes a significant contribution to the human rights corpus, it creates an ineffectual enforcement system. Its most notable contributions are the codification of the three “generations” of rights, including the innovative concept of peoples’ rights, ⁷ and the imposition of duties on individuals. ⁸ But many commentators have focused on the weaknesses in the African system. These include the “clawback” clauses in the African Charter, the potential abuse of the language of duties, and the absence of an effective protection mandate for the African Commission. ⁹

Recent changes in the African states, particularly those changes responding to demands for more open political societies, may augur well for the protection of civil and political rights. ¹⁰ Emergent democracies such as Namibia, Malawi, Benin, South Africa, Tanzania, and Mali are more inclined than their predecessors to respect human rights at home and to agree to a more viable regional system. In this context, the proposed African Human Rights Court would operate in a less hostile or cynical environment than the environment that determined and sharply limited the powers and effectiveness of the African Commission. In addition, the 1994 Rwandese genocide and the recent atrocities in Nigeria, Liberia, Somalia, Ethiopia, Sudan, Sierra Leone, Burundi, the Republic of the Congo, and the Democratic Republic of the Congo have further illuminated the need for stronger domestic and regional guarantees for human rights. In fact, at no time in recent African history have the conditions for the creation of an effective regional human rights system been more favorable.

This article critically evaluates the proposed African Human Rights Court and assesses its potential impact on the African human rights system. It probes the powers of the Court and asks whether a clear and mutually reinforcing division of labor between it and the African Commission could be developed to more effectively promote and protect human rights on the continent. For example, should the mandate of the African Commission be limited primarily to promotional activities, and the African Human Rights Court exclusively given the protective function? What relationship should the Court have to the African Commission?

In sum, this article explores the effect that the African Human Rights Court is likely to have in three principal areas. First, it examines the role of the African Human Rights Court in the development of the law of the African Charter and other relevant human rights instruments. Second, it addresses ways in which the Court can fill the lacunae left by the African Commission and alleviate some of its weaknesses. Finally, it discusses ways in which the Court can penetrate the legal and political cultures of African states to inspire, encourage, and ensure the internalization of human rights.

II. Ambiguity and Anemia: The Status Quo

The African human rights system is anchored in the African Charter, an instrument that is largely promotional with an ambiguous protective function and no credible...