The ACtHPR: Case Progression from the Commission to the Court

Introduction

The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court of Human Peoples’ Rights (the “Protocol”) states that the attainment of the objectives of the African Charter on Human and Peoples' Rights (the “Charter”) requires the establishment of an African Court on Human and Peoples' Rights (the “Court”) to complement and reinforce the functions of the African Commission on Human and Peoples' Rights (the “Commission”). Under Article 2 of the Protocol, the Court is to complement the protective mandate of the Commission. The Court started its operations in Addis Ababa in November 2006 and moved its seat to Arusha, Tanzania in August 2007. The rules of the Court were finalized in June 2008.

Where a State party is alleged to have violated a provision of the Charter, the Commission, broadly speaking, seeks to protect human and peoples’ rights through the regulation of a system of “written communications” – which can be sent to the Commission by States parties or individuals – and by drafting reports and making recommendations. This post examines the Commission’s mandate, the system of written communications and how a case can by submitted by the Commission to the Court.

The Commission’s Mandate

Article 45 of the Charter explains that the Commission has the following functions: (a) to promote human and peoples’ rights; (b) to ensure the protection of human and peoples’ rights; (c) to act as the interpreter of the Charter; and (d) to perform any other task which may be entrusted to it by the Assembly of the Heads of State of the African Union (the “Assembly”). The role of the Court is to complement and reinforce the Commission’s duties under Article 45(b) of the Charter.

Communication from States

Where a State party has good reason to believe that another State party has violated a Charter provision, it is entitled, by way of a written communication, to draw the attention of the State, the Commission and the African Union (the “AU”) to the matter. The enquiring State is entitled to a written explanation within three months. If the two States cannot resolve the issue, both have a right to refer the matter to the Commission. In any event, a State party may simply refer the matter directly to the Commission and the AU, where a breach of the Charter is alleged.

Once a matter is submitted, the Commission must ensure that all local remedies have been exhausted, unless the procedure for achieving these remedies would be unduly prolonged.

In terms of investigation, the Commission is entitled to request the States concerned to provide information, or to submit written or oral applications. The Charter also states that the Commission may obtain and consider information from any other source it deems necessary.

Following consideration of relevant and necessary information, the Commission is required to record its facts and findings in a report, which it must communicate to the States concerned and the Assembly. The Commission is also entitled to make recommendations to the Assembly.

Other Communications

The Commission may also consider communications other than those submitted by States parties (“non-State communications”).

Primarily, for any non-State communication to be considered by the Commission, it must relate to human and peoples’ rights. However, Article 56 of the Charter sets out a number of further conditions that must be adhered to, namely that all non-State communications: (a) must contain an indication of the identity of the author; (b) must be compatible with the Charter; (c) must not be written in disparaging or insulting language directed against the State concerned or the AU; (d) must not be based exclusively on material from the mass media; (e) must be sent after exhausting local remedies; (f) must be submitted within a reasonable period; and (g) must not deal with cases that have already been settled. The Commission must agree by simple majority that a non-State application be considered. Before any substantive consideration can take place, the Commission must inform the State in question.

Article 58 covers “special cases” in which non-State communications reveal the existence of “serious or massive violations of human and peoples’ rights”. In “special cases”, the Assembly or the Chairman of the Assembly is entitled to request that in addition to the Commission’s findings and recommendations, it conducts an in-depth study and produces a factual report.

The Relationship between the Commission and the Court

The most recent version of the Rules of Procedure of the Commission (the “Rules”) contains a section dedicated to the relationship between the Commission and the Court. The Rules set out the basic interactive framework between the two institutions, including provisions on: (a) complementarity; (b) consultations between the Commission, the Court and their respective Bureaus; (c) the interpretation of the Charter by the Commission in response to a request under Article 45(3); (d) advisory opinions under Article 4(1) of the Protocol; (e) seizure of the Court; (f) opinions on admissibility under Article 6 of the Protocol; (g) representation of the Commission before the Court; (h) the content of the application and file to the Court; (i) the transmission of cases to the Court and notification of the parties; and (j) lis pendens.

Submitting Cases to the Court

In addition to providing the Commission with a power to seize the Court with any case at any time of the proceedings, the Rules specify that it may submit a case to the Court under Article 5(1)(a) of the Protocol where it considers that the State has failed or is unwilling to comply with its recommendations within the prescribed time period. Also, where the Commission takes the view that a case contains a serious or massive violation of human rights, it may transfer a case to the Court. Finally, the Commission may refer a case to the Court where a State has failed to comply with a request for provisional measures.

Where the Commission submits a case to the Court, it is entitled to appoint one or more Commissioners to represent it, who shall be assisted by a Legal Officer and/or appointed experts.

When submitting a case to the Court, the Commission must provide the Court with a file containing the following: (a) an application of seizure; (b) a summary of the case; and (c) a case file, which should contain all of the evidence, documents or information concerning the communication, including documents relating to any attempts to secure a friendly settlement, and the Commission’s decision. Finally, the case summary must include, where appropriate, the following: (a) the names of the representatives of the Commission; (b) the facts of the case; (c) all relevant Charter provisions that are alleged to have been violated; (d) the date on which the Commission adopted its decision, or adopted and sent the request for provisional measures; (e) the facts which reveal serious or massive violations; (f) the date on which the decision of the Commission was transmitted to the State party concerned; (g) information relating to the deadline stipulated under Rule 113; and (h) the parties to the proceedings before the Commission.

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