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Blogging from Tanzania
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I spent the past week in Arusha, Tanzania attending a conference on the new African Court on Human and Peoples' Rights. While both Europe and the Americas have regional human rights courts, the African Court is the first regional judicial body on the continent to cover human rights. It also has a particularly expansive mandate; the Court can make rulings based both on its founding document--the African Charter on Human and Peoples' Rights--and other international human rights documents signed by the state involved in a case before the Court. No other regional human rights court has such an expansive mandate.
During the week I sat down with two conference participants to discuss their differing views of the appropriate relationship between courts and commissions in regional human rights systems. In the African system, cases can be submitted directly to the Court by state parties to the Protocol creating the Court, African intergovernmental bodies, the Commission and individuals and NGOs when the state involved has formerly approved such actions. In the Inter-American system, cases go first to the Commission, which refers cases to the Court.
The participants are Ibrahim Kane, Focal Point for the African Union (AU) Coalition for an Effective African Court on Human and Peoples’ Rights, and Carlos Ayala, President of the Andean Commission of Jurists and a former commissioner of the Inter-American Commission for Human Rights.
Q: Both the Inter-American and African human rights systems are made up of a commission and a court. What do you see as being the proper relationship between the two?
Mr. Kane: The African system has a quasi-judicial body (the African Commission) and a judicial body (the African Court). Currently, the quasi-judicial body is not very effective: only 14 percent of its decisions have been implemented. Because of this track record it is important for the continent to have a judicial body that is stronger on enforcement.
The Commission is currently mandated to both promote and protect human rights. It promotes human rights through country visits and fact finding missions, for example. It protects human rights by hearing and ruling on cases. The Court, on the other hand, just has a protective mandate. In my opinion, we need a system that both promotes and protects. However, when the Court is fully functional, the Commission should assume solely a promotional function and delegate the protective function to the Court. In practice that would mean that only the Court would hear cases. The Court’s protective mandate will be enhanced by the merger of the Court with the proposed African Court of Justice. Under this proposal, the Commission would supplement the work of the Court by undertaking investigations on key human rights issues that could then shed light on cases before the Court.
Mr. Ayala: From the Inter-American perspective, the Commission has played an important role in protecting human rights. The Commission does have a vital promotional mandate under which it conducts in-country visits to learn about human rights situations. It then issues reports that relate its findings and offers recommendations and conclusions. Because of the combination of facts and recommendations, the reports play both a protective and promotional role with regard to human rights. Rapporteurs also conduct investigations and are important in bringing human rights issues to the attention of the Commission and the public.
The Commission has also played an important role in hearing cases. Every year it has over 1,000 cases in process. In these cases it reviews admissibility and issues a final report on the matter. When it finds a violation of human rights it refers the matter to the Court. As the jurisprudence of the Inter-American system has expanded, the number of cases coming before it has increased. The Court does not have the capacity to review all of the cases itself so the Commission plays a vital screening function. In addition to reviewing admissibility the Commission will also withhold cases deemed weak or concerning areas in which the Court is not ready to issue progressive jurisprudence. If the Court were to receive cases directly it would need a significantly enhanced budget of about $100 million USD and a staff of at least 80 lawyers. [Note: According to the Project on International Courts and Tribunals, in 1998, the Inter-American Court’s budget was 4 percent of its European counterpart’s budget.]
I am in favor of individuals’ access to the Court. But in Latin America there are so many cases stemming from the number of massive and gross human rights violations on the continent. There are too many cases for the Court to currently handle given it capacity. The European Court of Human Rights has faced such a problem as the number of countries under its jurisdiction increased in the 1990s and early 2000s as did the number of cases.
Mr. Kane: It is true that the European system is struggling with the number of matters it receives. The European Court has a backlog of 60,000 cases. It is trying to change the rules to limit access, such as only accepting cases that would add to the Court’s jurisprudence, but it is facing resistance from some European countries.
For more blogs on the conference and the African Court in general visit the Global Network for Justice Initiatives.
The participants are Ibrahim Kane, Focal Point for the African Union (AU) Coalition for an Effective African Court on Human and Peoples’ Rights, and Carlos Ayala, President of the Andean Commission of Jurists and a former commissioner of the Inter-American Commission for Human Rights.
Q: Both the Inter-American and African human rights systems are made up of a commission and a court. What do you see as being the proper relationship between the two?
Mr. Kane: The African system has a quasi-judicial body (the African Commission) and a judicial body (the African Court). Currently, the quasi-judicial body is not very effective: only 14 percent of its decisions have been implemented. Because of this track record it is important for the continent to have a judicial body that is stronger on enforcement.
The Commission is currently mandated to both promote and protect human rights. It promotes human rights through country visits and fact finding missions, for example. It protects human rights by hearing and ruling on cases. The Court, on the other hand, just has a protective mandate. In my opinion, we need a system that both promotes and protects. However, when the Court is fully functional, the Commission should assume solely a promotional function and delegate the protective function to the Court. In practice that would mean that only the Court would hear cases. The Court’s protective mandate will be enhanced by the merger of the Court with the proposed African Court of Justice. Under this proposal, the Commission would supplement the work of the Court by undertaking investigations on key human rights issues that could then shed light on cases before the Court.
Mr. Ayala: From the Inter-American perspective, the Commission has played an important role in protecting human rights. The Commission does have a vital promotional mandate under which it conducts in-country visits to learn about human rights situations. It then issues reports that relate its findings and offers recommendations and conclusions. Because of the combination of facts and recommendations, the reports play both a protective and promotional role with regard to human rights. Rapporteurs also conduct investigations and are important in bringing human rights issues to the attention of the Commission and the public.
The Commission has also played an important role in hearing cases. Every year it has over 1,000 cases in process. In these cases it reviews admissibility and issues a final report on the matter. When it finds a violation of human rights it refers the matter to the Court. As the jurisprudence of the Inter-American system has expanded, the number of cases coming before it has increased. The Court does not have the capacity to review all of the cases itself so the Commission plays a vital screening function. In addition to reviewing admissibility the Commission will also withhold cases deemed weak or concerning areas in which the Court is not ready to issue progressive jurisprudence. If the Court were to receive cases directly it would need a significantly enhanced budget of about $100 million USD and a staff of at least 80 lawyers. [Note: According to the Project on International Courts and Tribunals, in 1998, the Inter-American Court’s budget was 4 percent of its European counterpart’s budget.]
I am in favor of individuals’ access to the Court. But in Latin America there are so many cases stemming from the number of massive and gross human rights violations on the continent. There are too many cases for the Court to currently handle given it capacity. The European Court of Human Rights has faced such a problem as the number of countries under its jurisdiction increased in the 1990s and early 2000s as did the number of cases.
Mr. Kane: It is true that the European system is struggling with the number of matters it receives. The European Court has a backlog of 60,000 cases. It is trying to change the rules to limit access, such as only accepting cases that would add to the Court’s jurisprudence, but it is facing resistance from some European countries.
For more blogs on the conference and the African Court in general visit the Global Network for Justice Initiatives.
