When African states gave in to pressure to create an African human rights mechanism, they were more concerned with sovereignty and non-interference than with the protection of the rights of individuals and groups on the continent. As a result, weak institutions were created, catering to the interests of the state.

Research from the University of Ulster, in the UK, reviews the history of the African Charter and the subsequent establishment of the African Commission and the African Court of Human and Peoples’ Rights. An examination of the processes and motivations involved casts doubt on the extent to which these institutions might protect human rights in Africa.

By making provision for an African human rights commission, African states were able to establish a human rights system that was, in theory, similar to that in most developed countries. The African Charter on Human and Peoples’ Rights came into force in 1986 and created the African Commission. But as a weak supervisory mechanism, it made few demands on African states in terms of accepting a higher human rights authority than that of their national courts.

Pressure was then exerted upon African states, in particular by international non-governmental organisations, to set up an African human rights court. This resulted in the adoption in 1998 of the Protocol Establishing the African Court on Human and Peoples’ Rights. In 2004, the African Union (AU) decided to merge the African Court of Justice and the African Court on Human and Peoples’ Rights, though this is yet to take place.

The African Court on Human and Peoples’ Rights suffers from a number of problems:

• Like the Commission before it, the Court is subservient to the AU, and there are issues regarding the independence of its members.
• Both bodies are poorly funded and have to compete with each other for scarce resources.
• The Protocol Establishing the Court prevents individuals from bringing cases to court unless a declaration accepting the right of individual petition has been made by the state concerned.
• Although the Protocol makes provision for the enforcement of rights and the Court has the ability to issue binding judgments, it is naïve to expect states to comply with them.
• The merger of the two courts is said to be for financial reasons, but the new court will include judges without human rights expertise.
• The Protocol allows complaints to be brought not only on the basis of the African Charter, but also on the basis of any other human rights instrument ratified by individual states. This may lead to a weakened form of human rights protection for Africa.

The study concludes that:

• It is unlikely that the African Court on Human and Peoples’ Rights will be more effective than its predecessor, the African Commission.
• Given the constraints on individuals to petition the Court, it may even be less effective than the Commission in protecting human rights.
• Although African leaders may make concessions to outside demands, they will not do anything that will compromise their position of privilege and power.

Source(s):
‘The African Court on Human and Peoples’ Rights: Safeguarding the Interests of African States’, Journal of African Law, Vol.51, No.1, pages 151-172, by Gina Bekker, 2007

id21 Research Highlight: 15 February 2008

Further Information:
Gina Bekker
School of Law
University of Ulster
Jordanstown Campus
Shore Road
Newtownabbey
Co. Antrim, BT37 0QB
 Northern Ireland, UK

Tel: +44 28 90368616
Fax: +44 28 90366806
Contact the contributor: g.bekker@ulster.ac.uk

University of Ulster

Other related links:
'Different paths to peace and justice in northern Uganda'

Coalition for an Effective African Court on Human and Peoples Rights

'Balancing old and new land rights in Ghana and Côte d’Ivoire'

African Commission on Human and Peoples’ Rights