The African Court on Human and Peoples’ Rights – Fellows’ seminar by Gerard Niyungeko

The African Court on Human and Peoples’ Rights is one of the institutions of the African Union (AU). It was established by a 1998 protocol which came into force in 2004, but only effectively came into operation in 2006.

Gerard Niyungeko of the Faculty of Law at the University of Burundi, who was one of the first judges and a former president of the African Court on Human and Peoples’ Rights, reflected on the structure and organisation of the court as well as its successes and the challenges it has faced in a presentation to STIAS fellows.

“The court is the judicial body of the AU but still remains relatively unknown even in the African legal community,” he said.

“The specific aim of the court is to ensure protection of human and peoples’ rights on the African continent.”

Niyungeko - 1STIAS Fellow Gerard Niyungeko during his seminar presentation on 8 February 2018

“There are a lot of different institutions, documents and instruments related to the protection of human rights on the continent,” he added. “However, some are only on paper.”

The court includes 11 judges representing all the sub regions. They are nominated by states, elected by the executive council of the AU, which comprises 55 countries, and appointed by the Assembly of heads of states and government.

Judges have to have the requisite legal skills and be “of high moral character”, said Niyungeko. The composition aims to ensure geographical representation, as well as representation of the different legal systems and gender.

The term of office is six years with one potential renewal. It is part time with four sessions per year of about three to four weeks each.

“Obviously the most important for judges is their independence,” said Niyungeko. “This can immediately cause conflict – you are nominated to the court by your government but must be seen to work independently of it.”

A bigger challenge lies in the fact that for a matter to be brought before the court by individuals or non-governmental organisations (NGOs), the respondent state must have not only ratified the protocol, but also have made a separate declaration acknowledging the jurisdiction of the court to entertain such applications. “Only eight states have made such a declaration so far – South Africa is not one of them,” he said. “So, practically speaking, the court is only currently covering eight of the 55 countries in the AU.”

“The court has very broad jurisdiction but any applicant who comes before it also must have first exhausted all local remedies.”

“The court’s decision is binding and final – there is no appeal unless there are new facts,” continued Niyungeko. “If a state refuses to comply with a judgment, the court must report this to the AU which can then put pressure on a state to comply.”

Requests for advisory opinions can be brought by NGOs, however, any non-governmental or civil society organisation submitting such requests has to have been recognised by the AU itself.

The main achievements of the court thus far include 161 contentious applications received of which 36 have been finalised. The court is also able to give advisory opinions and, thus far, 12 requests for advisory matters have been received and finalised.

Complex issues

The cases have covered an extensive array of human rights issues including the right to participate freely in the government of a country; freedom of association; the right not to be discriminated against; the right to have your cause heard by a competent and independent tribunal; the right to a fair trial; freedom of expression; the right to have elections conducted by an independent body; the right to liberty and security; rights of indigenous communities to traditional lands and associated rights, such as religious and cultural rights.

Looking to the future of the court, Niyungeko pointed to the planned merger of the existing Human Rights Court with the AU Court of Justice, and to the planned extension of the jurisdiction of the merged court to criminal matters. The envisaged African Court will then have jurisdiction over general matters, human rights matters, and criminal matters (much like the International Criminal Court (ICC)). “With Some African states considering withdrawing from the ICC there is a need for an African court with criminal jurisdiction,” he said. “However, so far not even one state has ratified the protocol expanding the jurisdiction of the African Court to criminal matters. We have to question if it makes sense to withdraw from the ICC but at the same time not ratify the changes in the AU court?”

“It is a period of transition for the existing court, dominated by political problems beyond the court,” he continued. “No one can really say when the stronger court will emerge.”

In discussion Niyungeko acknowledged the potential for tension between individual and collective rights. “The name of the court which refers to people’s rights was not accidental,” he said. “The court’s jurisdiction is not limited to individual rights.” He highlighted one case brought by a Kenyan indigenous group which claimed ancestral land rights.

“It can be a politically sensitive issue,’ he said. “You have to balance people’s interest while not causing further complex political problems like calls for self-determination and secession.”

Niyungeko’s STIAS project concerns understanding overall access of individuals to all the different international courts in Africa including sub-regional and continental.

“There remains a lack of awareness about the African Court on Human and Peoples’ Rights,” he said. “Sensitising sessions have been held in a number of countries. There is a need to promote the court and make it effective in the protection of human rights on the continent.”

“There has been a political decision to facilitate a continental judicial dialogue every two years – including all chief justices and sub-regional courts to exchange information on jurisprudence and try to ensure that both courts do not develop conflicting jurisprudence on human rights in particular.”

“Africa is still building its national judiciaries – these are not yet strong and independent in every country,” he added. “The AU court can help positively in this.”

Michelle Galloway: Part-time media officer at STIAS
Photograph: Christoff Pauw

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