Composition

The Commission is composed of eleven members (Article 31 ACHPR):

• ‘Chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience.’
• ‘The members of the Commission shall serve in their personal capacity.’

Who may file a complaint?

Article 55 ACHPR does not place any restrictions on who can submit cases to the Commission. This provision simply notes: ‘Before each session, the Secretary of the Commission shall make a list of the communications other than those of States Parties to the present Charter’. The Commission has interpreted this provision as giving locus standi to the victims themselves and to the victims’ families as well as NGOs and others acting on their behalf.

Admissibility

Exhaustion of domestic remedies: Article 56(5) ACHPR. The Commission can only deal with communications if they ‘are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged’.

Time period: Article 56(6) ACHPR. The Communications must be ‘submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter’.

Duplication of procedures at the international level: Article 56(7) ACHPR. The Commission does ‘not deal with cases which have been settled by these states involved in accordance with the principles of the Charter of the United Nations , or the Charter of the Organization of African Unity or the provisions of the present Charter’.

Inadmissibility

Article 56 ACHPR. ‘Communications relating to human and peoples’ rights referred to in Article 55 received by the Commission shall be considered if they: (1) Indicate their authors even if the latter request anonymity, (2) Are compatible with the Charter of the Organization of African Unity or with the present Charter, (3) Are not written in disparaging or insulting language directed against the state concerned and its institutions or to the Organization of African Unity [?].’

Interim measures

The Commission has developed a mechanism for adoption of provisional measures in its Rules of Procedure (Rule 111). ‘1. Before making its final views known to the Assembly on the communication, the Commission may inform the State Party concerned of its views on the appropriateness of taking provisional measures to avoid irreparable damage being caused to the victim of the alleged violation. [?]. 2. The Commission may [?] indicate to the parties any interim measure, the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it.’

Friendly settlement

Article 52 ACHPR. ‘After having obtained [?] all the information it deems necessary, and after having tried all appropriate means to reach an amicable settlement based on the respect of Human Rights and Peoples’ Rights, the Commission shall prepare [?] a report stating the facts and its findings.’ Rule 98 Rules of Procedure. ‘[T]he Commission shall place its good offices at the disposal of the interested States Parties to the Charter so as to reach an amicable solution on the issue based on the respect of human rights and fundamental liberties, as recognized by the Charter.’

Procedure

Written procedure, official and working languages are set out in Rule 34 Rules of Procedure of the Commission. ‘The working languages of the Commission and of all its institutions shall be those of the Organisation of African Unity.’ ‘The working languages of the Union and all its institutions shall be, if possible, African languages, Arabic, English, French and Portuguese.’ (Article 25 Constitutive Act  of the AU).

Web-site: www.achpr.org

African Court on Human and Peoples’ Rights

The original African Charter   did not provide for the institution of a Court of Human Rights. In June 1998, the OAU adopted the Protocol to the African Charter on Human and Peoples’ Rights  on the Establishment of an African Court of Human and Peoples’ Rights, which came into force 25 January 2004. Although as of July 2004 the African Court is not yet in existence it is hoped that it will be established in the very near future.

The African Court is a judicial body, established by the Protocol on the African Court on Human and Peoples’ Right.

Composition

The African Court is non-permanent body with a full-time president, composed of eleven judges:

• ‘Nationals of Member States of the OAU, elected in an individual capacity from among jurists of high moral character and of recognized practical, judicial or academic competence and experience in the field of human and peoples’ rights.’ (Article 11 Protocol).
• Article 22 Protocol excludes participation in a case of a judge who is a national of a state that is a party to the case.
• Ad hoc judges: The Protocol does not contemplate the appointment of ad hoc judges.
• Representation of the main regions of Africa and their principal legal traditions (Article 14(2) Protocol).
• Adequate gender representation is contemplated in Articles 12(2) and 14(3) Protocol.

Who may file a complaint?

Article 5(1) Protocol: ‘The following are entitled to submit cases to the Court: a) The Commission; b) The State Party which has lodged a complaint to the Commission; c) The State Party against which the complaint has been lodged at the Commission; d) The State party whose citizen is a victim of human rights violation; e) African Intergovernmental Organizations.’ The striking omission is the lack of locus standi for victims of human rights violations. Nonetheless, Articles 5(3) and 34(6) allow states parties, through a separate declaration, to recognise the standing of individuals and non-governmental organisations before the Court.

Admissibility

Article 6 Protocol sets out: ‘1. 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. 2. The Court shall rule on the admissibility of cases taking into account the provisions of article 56 of the Charter.’ In other words, according to this provision, the admissibility requirements are the same for the Court as those of the Commission (Article 56 Charter, see below). The novelty is the possibility for the Court to ‘request the opinion of the Commission’ on admissibility (Article 6(1) Protocol).

Inquiry procedures

Article 26(1) Protocol allows the Court to conduct inquiries.

Friendly settlements

Article 9 Protocol: ‘The Court may try to reach an amicable settlement in a case pending before it in accordance with the provisions of the Charter.’

Judgements

Article 27(1) Protocol: ‘If theCourt finds that there has been violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.’

• Binding force: Article 30 Protocol. ‘The States Parties to the present Protocol undertake to comply with the judgement in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.’
• Execution of judgements: Articles 29 and 31 Protocol establish a role for the Assembly and Council of Ministers of the AU to guarantee compliance with the judgements: The Court shall submit an annual report to the Assembly and specify, in particular, the cases where a state has not complied with the Court’s judgement (Article 31 Protocol). ‘The Council of Ministers shall also be notified of' the judgement and shall monitor its execution on behalf of the Assembly.’ (Article 29(2) Protocol).

Advisory Opinions

Article 4(1) Protocol: ‘At the request of a Member State of the OAU, the OAU, any of its organs, or any African organisation recognised by the OAU, the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.’ The mandate of the Court in this regard is considerably broader than that of the Commission.

Provisional measures

Article 27(2) Protocol: ‘In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.’

Procedure

Hearings are public, but may be conducted in camera as may be provided in the Rules of Procedure. Free legal representation is set out in Article 10(2) Protocol: ‘Free legal representation may be provided where the interests of justice so require.’