CYIL vol. 8 (2017)

TOMÁŠ BRUNER CYIL 8 ȍ2017Ȏ serious human rights violations, such as the Rwandan genocide, occurred on the African continent. Those events drew the attention of the World towards an African system of human rights protection and increased the need for action. In July 1994, during the ongoing humanitarian catastrophe in Rwanda, the OAU General Assembly of Heads of States and Governments called for the consideration of an African human rights court: “African states wanted to be seen as doing something tangible to address the genocide which had just taken place”. 22 This also determined the future seat of the court in Arusha, Tanzania, which is the seat of the International Criminal Tribunal for Rwanda as well. European and Inter-American Human Rights Court also became internationally recognized actors and significant sources of jurisprudence. International judicial protection of human rights qualified as “a global trend”. 23 While democratization spread thorough Africa, the importance of civil society was growing and abuses of human rights continued. Therefore, “the creation of a Human Rights Court in Africa had become a necessity. It would signal, in a very significant way, the integration of the African continent into the modern era. The Inter-American and European examples were worth emulating.” 24 Those causes facilitated the establishment of the ACHPR. In January 1993, the International Commission of Jurists produced the first draft of the Protocol that would establish the Court. 25 However, this protocol changed three times. In June 1994, the General Assembly of the African states, pushed also by the ongoing tragedy in Rwanda, called for a conference of legal experts to discuss the possibilities of a African human rights court. This conference took place in 1995 in Cape Town. In the Cape Town Protocol the experts adopted minor changes to the original draft of International Commission of Jurists. The result “mimicked the provisions of the European and American conventions.” 26 Nevertheless, it expected that individuals would automatically have full access to the Court. The following version of the Protocol, the Nouakchott draft of 1997, significantly restricted this individual access. Individual access to the Court was not admissible unless the home country of an individual applicant made a special declaration allowing the Court to hear the case. This draft also increased the number of ratifications necessary for the Protocol to enter into force from 11 to 15. Besides that, it “authorized the Assembly of Heads of State and Government to intervene in the process of removing judges from the human rights court and effectively limited access to the Court to the African Commission and States Parties to the Protocol.” 27 Both the draft Protocols, Cape Town and Nouakchott, circulated among governments of OAU countries. The governments were reluctant to comment on the documents or actively support the establishment of the Court. Frequent argumentation appeared that emphasis should have been laid on the African Commission and that it was impossible to support the Court, unless the African Commission was not working properly. The governments also resurrected the argument that the Protocol should be more sensitive to African traditions. 28 22 BEKKER, Gina, ‘African Court on Human and Peoples’ Rights’, p. 164. 23 VILJOEN, Frans, ‘The Human Rights Court for Africa and Africans’ Brooklyn Journal of International Law , 2004, no. 1, p. 9. 24 UDOMBANA, Nsongurua, ‘Towards the African Court’, p. 80. 25 BEKKER, Gina, ‘African Court on Human and Peoples’ Rights’, p. 161. 26 Ibid. p. 164-165. 27 UDOMBANA, Nsongurua, ‘Towards the African Court’, p. 81. 28 BEKKER, Gina, ‘African Court on Human and Peoples’ Rights’, p. 165.

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