Committee on the Elimination of Racial Discrimination meet with the President of the African Court on Human and Peoples Rights

29 August 2012

The Committee on the Elimination of Racial Discrimination this morning met with the Hon. Justice Gerard Niyungeko, the President of the African Court on Human and Peoples Rights.

Alexei Avtonomov, Chairperson of the Committee on the Elimination of Racial Discrimination, said the meeting of Chairs of Treaty Bodies had decided to strengthen the relationship and exchanges on case law and the experience between the treaty bodies and the African Court on Human and Peoples Rights and various bodies within the African system. The Committee on the Elimination of Racial Discrimination was the first to implement this decision.

Mr. Niyungeko said the objective of their visit to Geneva and to the United Nations human rights bodies was to establish links for communication and cooperation between the African Court and the various United Nations bodies responsible for human rights. The African Court on Human and Peoples Rights was composed of 11 judges, presenting equitable geographic and judicial and gender representation. The Court had jurisdiction to deal with all cases and disputes submitted to it and a secondary advisory role. The African Court faced three major challenges: the low number of ratifications of the Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and African Rights; the very low number of States that had signed the special declaration to allow individual communications; and the fact that African populations themselves were not very aware of the existence of the African Court. They had started an awareness raising campaign to make it better known among Heads of State, bar associations and the African public.

In the discussion, Committee Experts raised questions about the awareness raising campaign which should start with the Heads of State but also include bar and human rights associations; about customary law and how the Court envisaged dealing with such issues; the relationship of the African Court with the International Criminal Court; the role that the African Court could play in terms of the exhaustion of domestic remedies; and the resources available to the Court and if Member States were in arrears, among others.

The next public meeting of the Committee will be on Friday, 31 August when it will issue its concluding observations and recommendations on the reports of the States that it has considered during the session before closing the session.

Statements

ALEXEI AVTONOMOV, Chairperson of the Committee on the Elimination of Racial Discrimination, said today they would have a meeting and an exchange of views with the Hon. Justice Gerard Niyungeko, the President of the African Court on Human and Peoples Rights. The meeting of Chairs of Treaty Bodies had decided to strengthen the relationship and exchanges on case law and the experience between the treaty bodies and the African Court on Human and Peoples Rights and various bodies within the African system. The Committee on the Elimination of Racial Discrimination was the first to implement this decision. He presented to the President of the Court a compilation of individual communications, as the procedure of consideration of individual communications was quite similar to the judicial procedure and Mr. Niyungeko might find it of interest. The compilation had been recently published.

GERARD NIYUNGEKO, President of the African Court on Human and Peoples Rights,
thanked the Committee for receiving the delegation from the African Court on Human and Peoples Rights. The objective of their visit to Geneva and to the United Nations human rights bodies was to establish links for communication and cooperation between the African Court and the various United Nations bodies responsible for human rights. The African Court on Human and Peoples Rights was composed of 11 judges, presenting equitable geographic and judicial and gender representation. The Court had jurisdiction to deal with all cases and disputes submitted to it and a secondary advisory role. The African Court existed on paper only from 2006 to 2008, and then between 2008 and 2010, because it was not well known, only one case was bought before it. Since the beginning of 2011, the Court had started receiving cases in increasing numbers. At the last count the Court had received 22 applications in contentious matters and three requests for advisory opinions.

Now that the African Court had become operational at the administrative and judicial levels, three major challenges faced it. The first was a result of the low number of ratifications of the Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and African Rights. Only 26 of the 54 Member States of the African Union had ratified the African Court Protocol, even though almost all African States had ratified the African Charter on Human and Peoples Rights, which was the basic instrument that the Court was asked to interpret and apply. The second challenge was even more worrying and resulted from the very low number of States that had signed the special declaration to allow individual communications. Only five States had ratified it. This low number of ratifications of the special declaration limited the field of competence of the Court and its potential to have a true and effective impact on the protection of human rights at the continental level. Last year, the Court had decided to move away from the traditional attitude of the judge, and decided to wage a true sensitization campaign amongst Member States to make this special declaration. The third challenge resulted from the fact that African populations themselves were not very aware of the existence of the African Court and they had also started an awareness raising campaign to make it better known.

Concerning the institutional future of the African Court, its future as an institution was linked to two ongoing major developments within the African Union. The first which had begun was the merging of the African Court on Human and Peoples Rights and the African Union Court of Justice. This merger existed on paper but they did not expect it to be implemented rapidly as only three States had ratified it. The second institutional development which was also underway resulted from the decision to extend the competence of the African Court to criminal cases and consequently to give it criminal competence. The envisioned future African Court would be able to hold criminal trials of persons accused of genocide and war crimes and crimes against humanity of concern to Africa, in addition to human rights.

ALEXEI AVTONOMOV, Chairperson of the Committee on the Elimination of All Forms of Racial Discrimination, said the Committee could help by drawing attention to States parties of the possibility of ratifying these African instruments.

Discussion

A Committee Expert said he had closely followed the introduction by the President of the Court. Concerning the challenges facing the future this Court, he pointed out that of the 140 States that had ratified the Convention on the Elimination of Racial Discrimination, only 54 had made the declaration on Article 14 on individual communications. The question was to know what political will existed on the part of the African decision makers who decided to set up this Court. The challenge today was the presence of the ECOWAS court and domestic resources. Also, the opinions were quickly stifled. An African Court on Human and Peoples Rights had to live up to its name. The awareness raising campaign should start with the Heads of State but in order for the Court to have an impact, bar and human rights associations and the public should be enlightened on its existence. The President of the Court had spoken of the composition of the Court but not the structural organization.

Another Committee Expert said if the African Court proved itself and was able to fulfil its mission, they would have more and more States parties and would be able to deal with individual complaints. The Court had to prove itself.

Other Committee Experts asked about customary law and how the Court envisaged dealing with such issues; the relationship of the African Court with the International Criminal Court; the role that the African Court could play in terms of the exhaustion of domestic remedies; the resources available to the Court and if Member States were in arrears; overlap between the individual complaints procedures of the Committee on the Elimination of Racial Discrimination and the African Court; how to link the jurisdiction of the African Court with the jurisprudence of the various treaty bodies and how to overcome a conflict in case law; and if the African Court had jurisdiction to enforce not only international treaties but also customary international laws.

GERARD NIYUNGEKO, President of the African Court on Human and Peoples Rights,
said the African Court’s approach was to have awareness raising campaigns and they addressed Heads of State as well as bar associations and national human rights institutions which were strategic partners. All of the initiatives to link or extend jurisdiction were the initiative of African political bodies, not the African Court. The effectiveness of the Court would raise its profile and make it more credible.
The African continent did not have the luxury to wait 10 years to have its first cases or to have a positive impact on human rights. Conflicts of jurisdiction were inevitable with treaty bodies and other bodies. The internal rules of procedure of the African Court stipulated that an application must not concern a case that had been already settled by the United Nations or other African Union instruments. The African Court had had no practise on customary law as their case law was very limited.

If the protocol to merge the African Court and the African Union Court of Justice was approved in January then there would be an overlap between the African Court and the International Criminal Court, Mr. Niyungeko said. The African Court’s Protocol had no provisions on how to settle issues of conflict of jurisdiction and it would be essential for the African Court and the International Criminal Court to reach agreement on how to deal with this. This issue could only be settled bilaterally. Concerning funds, 90 per cent of the funds came from States and 10 per cent came from external contributions.

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