The decision by African Union's Assembly of Heads of State and Government to finally operationalise the African Court on Human and Peoples' Rights pending its proposed merger with the Court of Justice of the AU is yet another important step by African leaders in addressing human rights issues on the continent. However, the effective operationalisation of the Court will now depend on how credibly the AU addresses some critical issues.
Standing, access to and submission of cases to the Court still remain controversial. Article 5 of the Protocol establishing the court confers standing on certain entities such as the African Commission, States Parties that have lodged a complaint or against whom complaints have been lodged with the African Commission, a State Party whose citizen is a victim of a human rights violation, and African inter-governmental organisations. By contrast, the Court only has a discretion to allow direct access by individuals and NGOs only if the State against whom a case is lodged has made an express declaration accepting the court's jurisdiction to hear such a case under article 34 (6) of the Protocol.
The requirement of optional acceptance in the case of petitions by non-state entities (individuals and NGOs) is a feature of international human rights procedures, such as the First Optional Protocol to the International Covenant on Civil and Political Rights and the American Convention on Human Rights. This was also the position under the European Convention on Human Rights until the adoption of Protocol No. 11 to the European Convention. Article 34 of the Protocol No. 11 enables the European Court to 'receive applications from any person non-governmental organization or group of individuals claiming to be victims of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. '
Out of the 21 countries that have so far ratified the African Court Protocol, only Burkina Faso has made such a declaration. It is to be hoped that the proposed protocol to merge the African Court with the AU Court of Justice will address this anomaly and grant individuals and non–state actors' direct access to the court.
Another important issue is the Composition of the African Court. It will have 11 judges. It is expected that the election of the judges will be geographically representative and reflect gender equity. The AU has issued a Note Verbale - BC/OLC/66.5/8/Vol.V - to provide some useful guidance to this process, including requirements that:
Out of 21ratifying States, 16 have so far nominated 21 candidates, of whom only five are women. Mrs. Robinah Kiyingi, a Uganda Nominee, was brutally murdered in July 2005. The (s) election process is very crucial to the effective operationalisation of the court and to its credibility. Civil society organisations have an enormous role to play in ensuring that the national processes are inclusive, credible, and meet the obligatory treaty standards.
Evidently the African Human Rights System is coming to terms with a significant mandate to tackle human rights problems. For the effective operationalisation of the court, however, there are serious concerns that the African Union and its member States must address.