CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS … In December 1997 the conference in Addis Ababa prepared the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights 1 (“the Protocol”). By a consequent adoption of this Protocol the Organization of African Unity (OAU, later African Union) established the youngest of three continental human rights courts: the African Court on Human and Peoples’ Rights (“the ACHPR” or “the Court”). Upon the 20 th anniversary of the Addis Ababa conference, this paper outlines how a conflict between human rights and sovereignty influenced the establishment of the Court and its initial years of functioning in regard to jurisdiction in cases of individuals as applicants. Many founding countries preferred sovereignty preservation to human rights protection; therefore, the competences of the Court in individual cases have been limited. The phrases that “the Court manifestly lacks the jurisdiction” or “finds it has no jurisdiction to hear the case” of an individual have regularly appeared in its decisions. Yet the Court with its eleven judges, seated in Arusha, Tanzania, has started to gain stronger positions for at least several African countries and it now continues issuing its first meritorious decisions. This paper is divided into three parts.The first section describes how the Court was established and explains this establishment as a compromise between human rights protection initiatives and sovereignty preservation. The second section identifies the problems that this tension between human rights and sovereignty brought to the Court’s functioning and the Court’s response to the situation. The third section summarizes the Court’s meritorious decisions. The conclusion warns that the Court could experience a serious setback due to its deeper incorporation into African Union structures. Human Rights v Sovereignty: An African Compromise? Forsythe emphasizes that human rights in Africa often stand in opposition to domestic jurisdiction and state sovereignty. 2 The attempts to protect them on a transnational level without the willingness or consent of the concerned governments encounter difficulties. 3 This section outlines the way to human rights court adoption in Africa and explains that the result – the Addis Ababa Protocol – was a compromise between human rights protection and sovereignty preservation of African countries. Most of the countries on the continent embedded the substantive human rights protection in their constitutions immediately after gaining independence. 4 Nevertheless, the factual enforcement of human rights and their procedural protection was limited: “while the discourse of human rights has increasingly been spoken by the governments of African states 1 Adopted a year later as: Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights adopted June 9, 1998, OAU Doc. OAU/LEG/EXP/ AFCHPR/PROT (III). 2 FORSYTHE, David P., Human Rights in International Relations . Cambridge: Cambridge University Press, 2012, pp. 190-195. 3 Cf. ADEGBITE, Latif O., ‘African Attitudes to the International Protection of Human Rights’ in EIDE, Asbjorn, SCHOU August (eds.), International Protection of Human Rights , New York: Interscience Publishers, 1968, pp. 69-81. BELLO, Emmanuel G., ‘Human Rights: The Rule of Law in Africa’ International and Comparative Law Quarterly , 1981, pp. 628-637. 4 UDOMBANA, Nsongurua, ‘Towards the African Court on Human and Peoples’ Rights: Better Late than Never.’ Yale Human Rights and Development Journal , no. 1, 2000, pp. 45-111.

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