Judith A. Oder Interights
Dec 30, 2015
Normative FrameworkOAU Refugee Convention 1969
African Charter on Human and Peoples’ Rights 1981
African Children’s Charter 1990
The Court Protocol 1998
The Women’s Rights Protocol 2003
Human Rights MechanismsAfrican Commission on Human and Peoples’
Rights (the African Commission)
African Committee on the Rights and Welfare of the Child (the Committee)
African Court on Human and Peoples’ Rights (the Court)
Sub-regional Courts/TribunalsThe East African Community Court of Justice
The Economic Community of West African Court of Justice
The Southern African Development Tribunal.
Art 5 African Charter‘Every individual shall have the right to the
respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.’
Supporting ProvisionsEqual protection before the law (Art 3)
Right to life and integrity (Art 4 )
Right to personal liberty (Art 6)
Fair trial and due process guarantees (Art 7 )
African Commission’s Guidelines and Principles on the right to a fair trial and legal assistance
Women’s ProtocolRight to dignity
Prohibition of harmful traditional practices and violence against women
Violations in times of conflict
The Children’s CharterTraditional practices
Protections against child labour
Protection of children from abuse and violence
Due process protection
Protection of children in armed conflict or other situation
The African Commission’s complaints procedure
Who can file a complaint?
States parties to the African Charter
Individuals (Articles 55 and 56)
NGOs
The Stages of the procedureSeizure: Action by which the Commission
decides to consider a Communication
Admissibility: Must comply with criteria set out in Art 56
Merits: Consideration of the substance of the complaint
Provisional MeasuresRule 111 When there is a danger of
irreparable damage being caused to the victim
Chairperson informs state of the appropriateness of taking these measures
Evidence & Conduct of hearing Oral hearings (lately Commission has
sometimes dispensed with these & considered written submissions)
Video & audio recordings
Expert testimony
Standard of Proof: In practice it is the preponderance of the evidence standard
Remedies What the applicant requests for:Compensate victimsSetting up truth commissionsReturning citizenship Undertaking environmental impact studies Revising legislation
EnforcementThe Commission makes recommendations to
the Assembly of Heads of State of the AU
The enforcement of the Commission’s decisions to a large extent depends on the good will of the offending State
Complainant & representative devise a strategy on enforcement
Issues consideredPre-trial detention and incarcerationMental health detaineesDeath penalty Judicial corporal punishment Procedural and judicial safeguards,
incommunicado detentionRefoulement and forced displacementCivil strife and Conflict
African Court on Human and Peoples’ RightsIn place , judges elected in January 2006
Court Seat: Arusha, Tanzania
Delay in set up due to AU decision to integrate Human Rights Court & Court of Justice
Court will complement the Commission’s mandate
Complainants b4 the CourtAfrican Commission
State party -Complainant before the Commission -Respondent before
Commission - On behalf of Citizen African inter-governmental organisations
Art 36 (4) requires states to make a declaration accepting Court’s competence to consider cases from individuals
Only Burkina Faso has made this declaration.
The Court can apply sources of law ratified by the state concerned
Provision of legal aid
Binding judgments
Evidence: Oral and Written evidence; it can also conduct an inquiry
Enforcement States to comply within the time stipulated
by Court
Council of ministers to monitor execution
1. Selecting ForumRelevant law Assessment of potential impactOn going developmentsPrevious decisionsQuick winsPolitical and social context
2. Procedural CriteriaCostsTime limitsRules of Standing Evidentiary rulesExhaustion of local remediesNature of proceedingsDuration of proceedings
Remedies & Follow upBefore Commission, complainants and
representatives devise follow up strategy
In future Court will grant what complainant request for
Devise a strategy regarding follow up
States obliged to comply with the judgment