The Court of Justice of the African Union

Nega Ewunetie and Admasu Alemayehu Feb 28 2012

The Constitutive Act establishing the AU, which entered into force in May 2001, features human-rights issues prominently in the preamble in contrast to the OAU Charter, “the inclusion of human rights, the objectives and guiding principles of the Act is an important step toward anchoring human rights in the AU.

This Act provides for the ACJ, with the jurisdiction of implementation and application of the Act, whose competence will obviously extend over human rights controversies as the ACJ can interpret and apply treaties and all subsidiary legal instruments adopted within the framework of the AU, which might be human rights treaties.

As per its Protocol, the ACJ has jurisdiction to resolve disputes and applications referred to it. It can interpret and apply the AU Constitutive Act, AU treaties and all subsidiary legal instruments adopted within the framework of the Union. It also has jurisdiction over any question of international law; all acts, decisions, regulations ad directives of the organs of the Union; all matters specifically provided for in any other agreements that State parties may conclude among themselves or with the Union and which confer jurisdiction of the ACJ. The latter can also rule on the existence of any fact, which, if established, would constitute a breach of an obligation owed to a state party or to the Union, and also on the nature or extent of the reparation to be made for the breach of an obligation.

Because this Court has such broad jurisdiction, it will obviously come across human rights issues. As a result, both the African Human Peoples’ Rights Court and the ACJ of the AU may end up adjudicating human rights issues. At this juncture, it is important to note that the Protocol of the ACJ is still open for ratification and thus is not yet in force.

The Regional Initiatives: NEPAD and Related Initiatives

The New Partnership for Africa’s Development (herein after called NEPAD) is an expression of the collective developmental vision of a new generation of African leaders. It is a reflection of the desire of African leaders to forge out a new partnership with the developed countries of the world to deal away with the malaise of underdevelopment that has still clouded the African continent after four decades of independence.

The NEPAD document was officially endorsed at the Extraordinary OAU Summit in March 2001 in Sirte, Libya which has at the same time declared the establishment of the AU to replace the OAU as has been mentioned in the previous chapter. After its official endorsement, NEPAD was adopted in July 2002 as ‘Africa’s Development Strategy’ by the OAU summit that met in Durban, South African to give birth to the AU and replace the OAU.

One of the ways in which NEPAD seeks to address Africa’s underdevelopment is through promoting and protecting human rights in African countries and sub-regions thus undertaking a human rights-based approach to development. Four broad areas are covered under the initiatives that are built into the NEPAD and defined as prerequisites for the success of the programme. These are the peace and Security Initiative; the Democracy and Political Governance Initiative; the Economic Governance Initiative and the Sub- Regional and Regional Approaches to Development.

Close scrutiny of NEPAD, especially the part dealing with Peace, Security, Democracy and Political Governance Initiatives Reveals NEPAD aims to go about achieving development through human rights based approach.

Also, as issues of governance are the central concern of NEPAD, the programme acknowledges that African leaders will take joint responsibility for ‘promoting and protection democracy and human rights’ and ‘promoting the role of women.’

The proposal goes on to commit NEPAD to engage in capacity building initiatives to help meet these goals by focusing on administrative and civil services, strengthening parliamentary oversight, promoting participatory decision – making, implementing effective measures to fight for corruption and undertaking judicial reform.

In addition to the above, Africa’s political leaders also propose a heads of State Forum which will serve as a mechanism through which the leadership of NEPAD will periodically monitor and assess the progress made by African countries in meeting their commitment towards achieving good governance and social reforms. They add that the forum (which is to be referred to as the African Peer Review Mechanism after the July 2002 Durban Summit) will also provide a platform for countries to share experience with a view to fostering good governance and democratic practices.’ Generally, looking at the above points addressed in NEPAD, we can conclude that while human rights are referred to as core values that have been accepted as essential to good governance and sustainable development, the document in its current form, focuses on the promotion of good governance including transparency, accountability implying that human rights issues will be addressed as a matter of course.

The Role of Non-governmental Organizations (NGOs) and Civic Organizations

Although not a legal part of the institutional framework established by the African Charter, of even the AU, NGOs play a prominent role in enforcing human rights. Their inclusion is thus justified; the involvement of NGOs in the African system is quite unprecedented in international human rights. The African Commission has forged close relations with a number of NGOs, granting Observer Status to many. The Commission has even formalized the criteria NGOs must meet to be granted or to maintain, observer status. The recognized NGOs may be transnational or national, ‘on the ground’ and, unlike elsewhere, NGOs may, and frequently do, bring cases before the Commission.

As the 1993 World Conference on Human Rights marked the watershed of NGO involvement in international human rights, the African system appears once more to be more forward thinking than its sibling systems (it is acknowledged that many of the preexisting United Nations’ instruments had some NGO involvement at the drafting stage). There are many practical reasons for encouraging NGO involvement in the African system, not least the fact that NGOs may have the resources and dedication to bring cases forward. The individual may not be in such a fortunate position (though, as noted, individuals can be called to testify). As Rachel Murray acknowledges, ‘it could be argued that the need for NGOs in the African system is largely due to the weaknesses and ineffectiveness of the African Commission’. She concludes that NGO involvement is a necessary and integral part of the ‘holistic and community responsibility’ advocated by the Commission.

The participation of NGOs in the African system is a two-way process: whilst they enjoy access to the Commission and even some rights of participation in public meetings, NGOs also have responsibilities to promote human rights. They discharge these responsibilities through national training programmes, dissemination of materials, raising of the profile of the Charter at the national level, especially in rural districts, and promoting and facilitating Commission visits to states. On occasions, the Commission will explicitly utilize NGO information when the information cannot be obtained directly from the State.

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