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High hopes for new era of rights as African Court is established

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The entry into force of the Protocol establishing the African Court on Human and Peoples’ rights on 25 January 2004 has been welcomed by rights groups as a significant opportunity for the protection and promotion of human rights across the continent. The Court will consider rights violations referred to it by the African Commission, the body originally empowered to monitor implementation of the human rights standards enshrined in the African Charter on Human and Peoples’ Rights. While the African regional human rights mechanisms have faced many problems, substantial progress has been achieved with the vital input of both national and international NGOs, many of which have lobbied hard for the Court. Its forthcoming establishment is considered by many in Africa and the international community as a further positive step towards providing an effective African human rights system.

The long awaited process towards establishment of the Court was triggered on 26 December 2003 by the ratification of the Protocol to the African Charter by the Union of Comoros, the 15th African Union state to do so. According to the original provisions of the Protocol set down in 1998, the Court would enter into force 30 days after the 15th state ratification. The Court will only begin functioning after July when states parties to the Protocol will nominate judges for election at the African Union General Assembly. This will be a crucial first step towards establishing its credentials as an independent, impartial and potentially effective institution. Much work is still to be done regarding practical considerations such as staffing, resources and funding, establishing a permanent seat for the Court and developing effective rules of procedure.

African states have witnessed a vast growth in the number of NGOs and other civil society groups working to secure, promote and protect human rights over the past two decades. These groups have played a major role in significant progress towards rights in many states, and in bringing gross and widespread violations to light in others where corruption, conflict or impunity remain the norm. Human rights abuses in many African states remain cause for serious concern by NGOs and the international human rights community. Despite some landmark decisions from the African Commission, including important recommendations in favour of the Ogoni people of Nigeria, to ensure the protection of their environment, health and livelihood from oil development programmes, the Commission has lacked effective legal remedies to ensure state compliance. The new Court’s decisions will be legally binding upon states parties, and it is hoped by human rights commentators that it will prove a much more robust and effective mechanism alongside the valuable advisory and standard setting work of the African Commission itself, which will remain in place.

It is hoped that the Court may prove influential in respect to numerous rights issues of collective, minority and indigenous concern such as land rights, economic, social and cultural rights, and in regard to the right to development. Minority Rights Group International (MRG), which has observer status with the African Commission and which has begun a legal cases project as part of its on-going commitment to minority and indigenous rights, supports those calling for a independent, authoritative and effective institution. The Court may benefit from adopting effective procedures of more mature institutions such as the European Court of Human Rights. It is hoped by rights activists that the court will deliver strong rulings and effective remedies, and that these may provide the means by which to implement and strengthen the provisions of the African Charter, create a body of case law with precedential value, and act as a guiding mechanism for national courts.

Only those African states that have ratified the Protocol establishing the Court are currently open to its consideration and jurisdiction. Minority Rights Group International congratulates those states on this statement of intention to abide by international human rights standards. MRG urges all 38 other African Union states that have not yet done so to ratify the Protocol without delay. The Court should be adequately funded and resourced in order to allow it to function effectively, requiring a commitment on the part of the African Union and all states parties to the Protocol. MRG encourages all ratifying states to make the relevant declarations under the provisions of the Protocol allowing individuals and Non-Governmental Organizations access to the Court.

Notes for editors

States parties to the Protocol on the Establishment of an African Court on Human and Peoples’ Rights (1998) are: Algeria, Burkina-Faso, Burundi, Côte d’Ivoire, Gambia, Lesotho, Libya, Mali, Mauritius, Rwanda, Senegal, South Africa, Togo, Uganda.

Filed Under: Advocacy – OLD, Africa, ICC
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