By: John Mukum Mbaku
PDF: The Emerging Jurisprudence of the African Human Rights Court and the Protection of Human Rights in Africa
During most of the post-independence period, many African countries have either been unwilling or unable to protect human rights or relegated this important function to a small group of poorly funded but brave and courageous non-state actors. Most importantly, some African governments have either actively engaged in human rights violations or failed to bring to justice those who have committed atrocities against their fellow citizens. In the 1970s and 1980s, many African heads of state were more concerned with national sovereignty in an effort to hide the violation of human rights committed within their jurisdictions than participating in the building, within the continent, of supranational institutions for the protection of human rights.
Despite this opposition, the Organisation of African Unity (OAU) was still able to adopt the African Charter on Human and Peoples’ Rights (Banjul Charter) in 1981, paving the way for the eventual adoption of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (African Court Protocol) in 1998—the latter established the African Court on Human and Peoples’ Rights (African Human Rights Court), as the judicial arm of the African Union. Since the Court officially commenced its operations in November 2006, it has developed a relatively progressive human rights jurisprudence, which provides the continent with a solid foundation for the adjudication of cases involving the violation of human rights.
However, its sustainability is being threatened by financial instability, the unwillingness of African Union (AU) member states to accept the Court’s rulings, and the decisions by some countries to take actions that deny their citizens and nongovernmental organizations (NGOs) within their jurisdictions the right to directly bring cases to the Court. The way forward calls for the AU to greatly strengthen both the Court’s financial and institutional architecture and its independence and ensure that its rulings are accepted and respected by all member states.