Opening Statement of the President of the African Court on Human and Peoples' Rights, the Hon. Gerard Niyungeko

Adress by the Honourable Gerard Niyungeko, President of the
African Court on Human and Peoples' Rights on the occasion of the Opening Ceremony
of the 48th Ordinary Session of the African Commission on Human and Peoples' Rights
in Banjul, The Gambia on the
10th November 2010

 

Your Excellency Mr. Edward Gomez, Minister of Justice of the Republic of The Gambia,
Your Excellencies, Ladies, Hon. Ministers representing Member States,
Your Excellency Mme. Julia Dolly Joiner, Commissioner of Political Affairs of the African Union Commission,
Honourable Reine Alapini Gansou, Chariperson of the African Commission on Human and Peoples’ Rights,
Honourable Vice-Chairperson, Honourable Members of the African Commission on Human and Peoples’ Rights,
Ladies, Gentlemen Members of the Diplomatic and Consular Corps,
Distinguished Representatives of International Organizations,
Distinguished Representatives of Non-Governmental Organizations,
Ladies, Gentlemen

1. It is a great pleasure for me to have been given the opportunity to participate in the opening ceremony of the 48th Ordinary Session of the African Commission on Human and Peoples’ Rights. I am also pleased to have been able to participate in opening ceremony of the NGO Forum which, from henceforth, is inextricably linked to the Commission’s session.

It must be said that this is the very first time that the African Court on Human and Peoples’ Rights has been able to participate in these two events.

In the past the Court has been regularly invited by the Commission but due to various circumstances quite out of the control of its members it has never had the opportunity to be represented in the Commission’s public sessions.

It is therefore a great pleasure for us to be here today to participate in this event.

I would therefore like, on behalf of my colleagues of the Court and on my own behalf, to whole heartedly thank the African Commission on Human and Peoples’ Rights for having continued to invite us and in particular for having sent us an invitation for the present ceremony.

Excellencies, Ladies and Gentlemen,

2. I would like to start by applauding the incredible amount of work accomplished by the Commission during its 23 years of existence. Whether it relates to the promotion or protection of human and peoples’ rights, the Commission has registered considerable results under extremely difficult conditions. Even where this is not always known to the general public this work has allowed the African human rights system to achieve considerable progress.

In the particular area of human rights protection, the Commission has notably developed an extremely rich jurisprudence from which the Court can only benefit. In this context, the Commission has gained recognition through a dynamic and progressive interpretation of the African Charter on Human and Peoples’ Rights, which has had a genuine impact on the current configuration of the African Human Rights System.

I would therefore like to laud the courage thus manifested by the Commission. In this regard, as indicated by our colleague Judge Fatsah Ouguergouz in a communication presented a little more than a month ago at the Symposium of Similar African Human Rights Courts and Institutions held from 4th to 6th October 2010 in Arusha and I quote: «To the wisdom of those who drafted the Charter, the courage of the Commission has been added. The Commission has indeed shown a lot of courage in drawing maximum profit from the margin of interpretation given to it by the drafters of the Charter. Through this exercise of progressive interpretation of the Charter, the Commission has thus patiently forged and strengthened its own «competence». There is need therefore to pay homage to the great effort deployed by the Commission at the risk of sometimes being recalled to order by the Assembly of Heads of State and Government of the Mother Organization, evident testimony of the total success of its mandate».

Excellencies, Ladies and Gentlemen,

3. I would then like to dwell for a moment on the relations between the Court and the Commission.

As you are undoubtedly aware, the African Commission on Human and Peoples’ Rights was established by the African Charter on Human and Peoples’ Rights itself and has been in operation since 1987. On its part, the Court was created by an additional Protocol to the Charter and has been in existence for four years only. The Ouagadougou Protocol of 9th July 1998 which established the Court stipulates that the latter’s principal role is to complete the protection mandate conferred by the African Charter on Human and Peoples’ Rights on the Commission (Article 2).

The Protocol further stipulates, on the one hand, that the Commission can seize the Court on cases of alleged human rights violations, and on the other, that the Court can seek the opinion of Commission on issues regarding the admissibility of requests or even forward a case to it directly. The Protocol finally stipulates that the Court consults the Commission each time there is need on any procedural issue regarding the two Institutions (Article 33).

It is on the basis of these provisions that the Court and the Commission met three times between July 2009 and April 2010 to perfectly harmonize their respective Rules of Procedure and to establish an institutional framework of collaboration between them. The respective Rules of Procedure of these Institutions provide for the modalities of seizure of the Court by the Commission and conversely the procedure to be followed by the Court in the event of a request for an opinion or of forwarding of a case to the Commission. In order to avoid any conflict of competence and all «forum shopping», the Rules of the two Institutions stipulate that neither of the two can examine a case which is still pending before the other. Regarding the institutional framework of collaboration, the two Rules of Procedure can institutionalize, between themselves, an annual meeting between them and a meeting between the Bureaus as many times as required.

With such a development the Court is convinced that the two Institutions will achieve maximum collaboration in the protection of human and peoples’ rights on the Continent. To use an illustration, the Court and the Commission are like two breasts that feed the African human rights protection system.

It is in this spirit of complementarity and collaboration between the two Institutions that the Court expects to be seized by the Commission in the very near future regarding contentious issues that it has itself prescribed.

Excellencies, Ladies and Gentlemen,

4. It is within this same spirit of collaboration that the Court organized from 4th to 6th October 2010 a Symposium which brought together, besides the Commission and the Committee of Experts on the Rights and Welfare of the Child, the Courts of the Regional Economic Communities such as ECOWAS, SADC and the East African Community. This Symposium, which was the first of its kind, provided an opportunity to engage a genuine legal dialogue between the African and sub-regional judicial and quasi-judicial human rights Institutions so that they can get to know each other and to see how to avoid conflicts of competence, as much as possible, and to promote the harmonization of their respective jurisprudence in the human rights domain. The participating Institutions decided to institutionalize this dialogue and it is certain that the Commission and the Court will play a major role in the conduct of the said dialogue.

Excellencies, Ladies and Gentlemen,

5. As you are undoubtedly aware, the African Court which has been in place for four years now became operational very rapidly for the Member States of the African Union provided it with a budget and staff for the Office of the Registrar, the Government of the host country installed it in a temporary headquarters, and the Court itself has acquired its own Rules of Procedure.

As you also know, the Court is called upon to play a dual role. On the one hand it holds contentious jurisdiction on the basis of which it can settle disputes relating to the interpretation and application of the African Charter on Human and Peoples’ Rights and of any other relevant international legal human rights instrument. In this respect it issues final and binding judgments. On the other hand, it has advisory jurisdiction on the basis of which it can issue an opinion on any human rights related legal matter at the request of a State Party, of the African Union, of any Organ of the African Union and of any African Organization recognized by the African Union, so long as this issue is not pending before the Commission.

However the main problem which the Court has to face today is that it is under utilized in terms of its judicial mandate which constitutes its principal role. In effect, to date, the Court has only had to settle one case regarding a request from an individual against a State which had failed to recognize the Court’s competence to entertain requests from individuals.

This situation is due in particular to the low level of ratification of the Protocol and of the very low level of execution of the special declaration authorizing individuals and NGOs to directly seize the Court.

In effect, out of the 53 Member States of the African Union all Parties to the African Charter on Human and Peoples’ Rights, only 25 have already ratified the Protocol establishing the Court. Out of the 25 States Parties to the Protocol only four, namely Burkina Faso, Mali, Malawi and Tanzania have already made the special declaration accepting the competence of the Court to receive requests from individuals and NGOs.

We therefore find ourselves in this paradoxical situation whereby the Member States of the African Union have put in place an African Court on Human and Peoples’ Rights and provided it with the minimum requirements for its operations, but have considerably restricted the access to the Court by the principal interested parties, namely individuals and NGOs.

Excellencies, Ladies and Gentlemen,

6. The future of the African human rights protection system is dependent on the establishment of an African Court on Human and Peoples’ Rights which is fully effective and operational.

It is for this reason that we will seize the opportunity provided by this meeting to solemnly call on the Member States of the African Union to accelerate the process of ratification of the Protocol and to sign the special declaration authorizing the direct access by individuals and NGOs to the Court. So long as the Court is not fully accessible to individuals and NGOs, it will not be in a position to fully execute its role of legal protector of human rights on the Continent.

Likewise we invite the Member States of the African Union and all its Organs, the African Organizations recognized by the African Union to examine the possibility of bringing requests for advisory opinions before the Court. As we had pointed out earlier, each of these entities is empowered to seize the Court with a request for an advisory opinion on any issue relating to human rights which is not pending before the Commission. In this manner, the Court can deal in parallel with contentious issues and advisory matters.

Where the Court is concerned, generally, it is committed to the strengthening of its promotion strategy in order to enhance knowledge of itself by the African populations, and by all the entities which are authorized to seize it.

Excellencies, Ladies and Gentlemen,

7. Besides the Commission and the Member States, there are two other major actors which have an important role to play in the strengthening the efficiency of the African Court on Human and Peoples’ Rights. These are the African Civil Society Organizations and the Media.

Regarding the national and international African Civil Society Organizations, I have already had the opportunity to speak at length about their role and the expectations of the Court where they are concerned during the NGO Forum which preceded this Session. I simply recalled that these Organizations can help the Court in organizing and directing sensitization campaigns to promote the ratification of the Protocol, the signature by the States of the special declaration allowing individuals and NGOs to access the Court, the adequate and optimal use of the Court in consultative matters, the promotion of the Court generally and other activities linked to the greater efficiency of the African legal system of protection of human rights by the Court.

Pertaining to the Media, their role is equally important since it is through the Media that all these sensitization activities can be disseminated to their respective addressees and all the Court’s activities brought to the attention of the African populations generally.  

I therefore call upon the representatives of civil society and the media to fully and adequately play their role.

In order to ensure that the system established by the Assembly of Heads of State and Government of the Union does not fall short of the expectations created by the establishment of the Court across the entire Continent, there is need, in short, for the combined action of all the stakeholders in the system to whom I have referred, and in particular the Court itself, the Member States of the African Union, the African Union itself, the African Commission on Human and Peoples’ Rights, African Civil Society and the Media.

Excellencies, Ladies and Gentlemen,

8. It only remains for me to wish the Commission continued success in the execution of its entire mandate, and to express my wishes for a resounding success of the deliberations of its 48th Ordinary Session.  


I thank you for your kind attention.

 

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