Judith A. Oder Interights

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

All 53 African states but Morocco are members states of the AU

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

Applicable LawHuman Rights within the AU system

International human rights instruments

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

Remedies Court can make appropriate orders including:

Payment of fair compensation

Reparation

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

Overall, in your selection of fora:

Impact: -For the victim -Change in law/policy/practice

Likelihood of enforcement: Availability of formal procedure