Access to the African Court on Human and Peoples’ Rights: A Case of the Poacher Turned Gamekeeper?

Abstract

The last two decades have witnessed significant advances in the human rights landscape in Africa. The period has witnessed a modest, though steady growth of human rights, reflected in the crystalisation of norms and institutions for the protection and promotion of human rights in the continent. A recent entrant to the growing institutional edifice, the African Court on Human and Peoples’ Rights, stands out in particular.

Although an invaluable addition to the machinery for the protection of human rights, the restrictive access to the Court may undermine the utility of the Court. Under the Protocol establishing the Court, States Parties have automatic access to the Court, whereas individuals and non-governmental organizations (NGOs) can only institute cases before it if the State Party concerned makes a declaration accepting the competence of the Court to receive such cases. Even so, the Court still has discretion to receive such cases. This scheme of access to the Court defies the primary raison d'être of international human rights law, namely to protect the individual or groups against inimical conduct of the state. Moreover, states have no incentive to refer human rights cases to international human rights tribunals. Put more bluntly, to rely on the ‘predatory’ state to institute cases before the African Court may well be a case of the poacher turned gamekeeper.