THE UNITED REPUBLIC OF TANZANIA

THE LAW SCHOOL OF

TANZANIA

LS 110
LEGAL AID AND HUMAN RIGHTS ADVOCACY

Saturday, May 11, 2024 (c) 2020 Mr. Justice R.V. Makaramba 1
TUESDAY 28/03/2023

8.00-10.00 am: AfCHPR: African Court on Human and Peoples’ Rights

- Composition, Legal status, locus standi, cause of action
and Jurisdiction.
- Procedure in filing and prosecuting cases at ACHPR.
-Procedure for amicus at AfCHPR.
–Procedure for enforcement of Judgements.
10.15-02.00pm: AComHPR: African Commission on Human and Peoples’
Rights
- Composition, Legal Status, locus standi, cause of action
and Jurisdiction.
- Procedure in filing and prosecuting cases at
AComHPR.
- Procedure for enforcement of Judgements/decisions.
 THE MAJOR AFRICAN HUMAN RIGHTS INSTRUMENTS

 The African Charter on Human and Peoples’ Rights (The Banjul Charter,
1981)

 Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Women in Africa (The Maputo Protocol)

 Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Persons with Disabilities in Africa (The Disability Protocol)

 African Charter on the Rights and Welfare of the Child (The ACRWC)
AFRICAN REGIONAL HUMAN RIGHTS IMPLEMENTATION
MECHANISMS

 The African Union (AU) formerly the Organisation of African

Unity (OAU) adopts human rights treaties and protocols.
 The African Commission on Human and Peoples’ Rights
(AComHPR)
 Special Mechanisms - Subsidiary special mechanisms, including
Special Rapporteurs, Committees, and Working Groups.
 African Committee of Experts on the Rights and Welfare of the
Child (ACERWC)
 The African Court on Human and Peoples’ Rights
(African Court)(AfCHPR)

 The Protocol on Amendments to the Protocol of the

AfCHPR Statute (The Malabo Protocol) (2014)

 Proposed merge of existing AfCHPR with the African

Court of Justice (ACJ) to create the African Court of
Justice and Human Rights (AfCJHR).
THE AFRICAN COURT ON HUMAN AND PEOPLE’S RIGHTS
(AfCHPR)
(The African Court)
African Court of Justice and Human Rights

 The AU Constitutive Act provided for the establishment of a

judicial organ, the Court of Justice, alongside the African
Court, which was already established under the OAU to
complement the protective mandate of the African
Commission.

 See Article 9(1)(a) of the AU Constitutive Act.

 https://au.int/sites/default/files/pages/34873-file-constitutiveact_en.pdf
Article 18 The Court of Justice
1. A Court of Justice of the Union shall be
established;
2. The statute, composition and functions
of the Court of Justice shall be defined
in a protocol relating thereto.
 Adopted in Lome, Togo on 11th July 2000.
 Entered into force on 26 May, 2001
 URT Signed 15/12/2000; Acceded on
06/04/2001; Deposited 11/04/2001
 The AU Assembly adopted the Protocol establishing the
African Court of Justice on 11 July 2003. Although the
Protocol establishing the African Court of Justice entered
into force on 11 February 2009, this Court will never be
established.

 The AU Assembly decided, long after the Protocol of the

African Court of Justice had been adopted, that there had to
be a merger between the two judicial institutions into the
African Court of Justice and Human Rights
 The decision to merge the two courts was based on the need to rationalise the
existence of the two courts and to make them cost effective.

 The African Court set up under the African Charter, was devised to deal
with allegations of human rights violations against AU members.

 The Court of Justice, instituted under the AU Constitutive Act, was expected
to deal mainly with contentious matters of an economic and political
nature.

 The mandate of the Court of Justice related to disputes about the common
policies of the AU, and issues arising from political and socio-economic
integration.
 Although the jurisdiction of the Court of Justice did not
explicitly include human rights issues within the Court’s
writ, the possibility of overlap could not be discounted.

 On 1 July 2008, the AU Assembly adopted the Protocol on

the Statute of the African Court of Justice and Human
Rights (Merger Protocol), merging the two courts, the
African Court on Human and Peoples’ Rights and the
African Court of Justice.
 The Merger Protocol is not yet in force and will enter into force
thirty days after the deposit of the instruments of ratification by
fifteen member states.

 To date, seven (7) states have ratified the Merger Protocol, namely
Libya, Mali, Burkina Faso, Congo, Benin, Rwanda, and Cote
d’Ivoire.

 Once in force, the African Court of Justice and Human Rights will
replace and abrogate both the African Court protocol and the
African Court of Justice protocol.
 Established through a Protocol to the African Charter
– the Protocol on the Establishment of an African
Court on Human and Peoples’ Rights (Art.1),
adopted in Ouagadougou, Burkina Faso, on 9th June
1998. Entered into force on 25th January 2004.

 To complement the protective mandate of the

Commission. Its decisions are final and binding on
state parties to the Protocol.
 Legal Status of the African Court

 The “African Court” is a continental supranational

judicial body that delivers binding judgments on
compliance with the African Charter.

 See article by Adamantia Rachovitsa, “On New ‘Judicial

Animals’: The Curious Case of an African Court with
Material Jurisdiction of a Global Scope”, Human Rights
Law Review, 2019, 19, 255–289 doi: 10.1093/hrlr/ngz010
 Composition of the Court

• The Court consists of 11 judges.

• The Judges are elected by AU Assembly from a list of

candidates nominated by their respective states members of
the AU, in their individual capacities, from among African
jurists of proven integrity and of recognized practical,
judicial or academic competence and experience in the field
of human rights.
 The Judges are elected for a six year term,
renewable once.
 Not two serving judges shall be nationals of the
same state.
 Due consideration is also given to gender and
geographical representation.
 Only the President of the court holds office on full
time basis.
 The other 10 judges work part-time
 The Judges of the Court elect a President and Vice
President of the Court who serve a two year term. They
can be re-elected only once.

 The President of the work resides and works on a full-time

basis at the seat of the Court, while the other ten (10) Judges
work on a part-time basis.

 The President is assisted by a Registrar who performs

registry, managerial and administrative functions of the
Court.
 The first judges of the Court were sworn in
on 1st July 2005.

 The Court officially started its operations in

Addis Ababa, Ethiopia in November 2006,
and in August 2007 it moved to its seat in
Arusha, the United Republic of Tanzania.
 Jurisdiction of the Court

 The Court’s jurisdiction applies only to states that

have ratified the Court’s Protocol.

 The Court may entertain cases and disputes

concerning the interpretation and application of the
African Charter, the Court’s Protocol and any other
human rights treaty ratified by the state
concerned.
 Specifically, the Court has two types of jurisdiction:
contentious and advisory.
 The Court’s jurisdiction ratione materiae or subject-
matter jurisdiction. “any legal dispute arising directly
out of…
 The African Court enjoys a distinctive contentious
jurisdiction which extends to the interpretation and
application of any other relevant human rights
instrument ratified by the States concerned.
 Jurisdiction ratione materiae, ratione personae and ratione
temporis.

 Jurisdiction ratione materiae, otherwise known as subject-matter

jurisdiction refers to the court's authority to decide a particular case.

 Jurisdiction ratione temporis - the acts which caused Claimant’s

alleged injury occurred prior to the entry into force of the Protocol.

 Jursidiction ratione personae jurisdiction over national of a

contracting state.
Argument:

 If the Court extends its jurisdiction over

treaties other than the African Charter on
Human and Peoples’ Rights, this will lead to
jurisprudential chaos and will undermine the
formation of the African corpus juris.
 Article 3(1) of the Protocol to the African Charter on
Human and Peoples’ Rights on the Establishment of the
African Court on Human and Peoples’ Rights (‘Protocol to
the ACHPR’) reads:

 “The jurisdiction of the Court shall extend to all cases and

disputes submitted to it concerning the interpretation and
application of the Charter, this Protocol and any other
relevant Human Rights instrument ratified by the States
concerned.”
 [9 June 1998, OAU/LEG/EXP/AFCHPRIPROT(III)
 Article 7 of the Protocol to the ACHPR (sources of
law) reads in identical terms:
 “The Court shall apply the provisions of the Charter
and any other relevant human rights instruments
ratified by the States concerned.”

 Its mandate therefore extends to the interpretation and

application of any other relevant human rights
instrument ratified by the States concerned.
 “The ACtHPR deviates from the ‘prototype’ of the jurisdiction of a
human rights court/body. Its striking features set it apart also from
most international courts,5 arguably qualifying it as a new ‘judicial
animal’ that introduces a variance in ‘judicial genome mapping’”

 Alter, Karen J., "The Multiple Roles of International Courts and

Tribunals: Enforcement, Dispute Settlement, Constitutional and
Administrative Review" (2012). Faculty Working Papers. Paper 212.
 http://scholarlycommons.law.northwestern.edu/facultyworkingpaper
s/212
 A list of all judgments of the AfCHPR is
available at: www.african-court.org

 Allowing complaints of violations of a

variety of human rights treaties to be
brought before the Court will lead to
‘jurisprudential chaos’.
A. The Anxiety of Forum Shopping

 ACtHPR, Tanganyika Law Society and Legal and Human Rights

Centre and Reverend Christopher R. Mtikila v United Republic of
Tanzania Application Nos 009 and 011/2011, 14 June 2013 – UDHR
not a treaty.
 ACtHPR, Frank David Omary and Others v The United Republic of
Tanzania Application No 001/2012, 28 March 2014 –
 ACtHPR, Anudo Ochieng Anudo v United Republic of Tanzania
Application No 012/2015, 22 March 2018 - deprivation of
citizenship violated art. 15(2) of UDHR cited.
B. The Anxiety of Monitoring Other Human Rights
Treaties

 In Anudo Ochieng Anudo, Tanzania was found to have

arbitrarily expelled the applicant in violation of Article 7 of
the Charter and Article 14 of the ICCPR.

 Tanzania’s systematic failure to protect various aspects of the

right to a fair trial led to a violation of Article 7 of the
ACHPR and Article 14 of the ICCPR
 Is there a possibility for a regional international
court to monitor UN or other global treaties?
 See Tanganyika Law Society and Legal and
Human Rights Centre and Reverend Christopher
R. Mtikila v United Republic of Tanzania,
Separate Opinion of Vice-President Fatsah
Ouguergouz, para 16;
C. The Anxiety of Threatening African Human Rights Law

 ACtHPR, Association Pour le Progrès et la Défence des Droits des

Femmes Maliennes (APDF) and The Institute for Human Rights and
Development in Africa v Republic of Mali Application No 046/2016,
11 May 2018 at paras 9, 95, 125, 135.
 The Court examined and decided alleged violations of other treaties
on human rights without bringing the ACHPR into play.
 It is the first case in which the Court decided a complaint strictly
on the basis of other treaties on human rights without
implicating the Charter.
 In this instance, the Court found Mali in breach of
its obligations under CEDAW, the Maputo
Protocol and the African Charter on the Rights and
Welfare of the Child, without making any effort
propio motu to identify relevant provisions of the
Charter or to link the Charter with the facts of the
case and the applicant’s submissions.
 The Court may also render advisory opinion on any
matter within its jurisdiction.
 The advisory opinion of the Court may be requested by
the AU, member states of the AU, AU organs and any
African organization recognized by the AU.
 The Court is also empowered to promote amicable
settlement of cases pending before it.
 The Court can also interpret its own judgment.
 The temporal jurisdiction (ratione temporis) of the
Court extends to the time the Court Protocol entered
into force in respect of a particular state except in
cases of continuing violations.

 The principle of continuing violation was earlier

endorsed by the African Commission in Lawyers for
Human Rights v Swaziland.
 Locus Standi before the Court
 The Court may receive cases filed by the African
Commission of Human and Peoples’ Rights, State parties to
the Court’s Protocol, and African Inter-governmental
Organizations.

 NGOs with observer status before the African Commission and

individuals can also institute cases directly before the Court as
long as the state against which they are complaining has
deposited the Article 34(6) declaration recognizing the
jurisdiction of the Court to accept cases from individuals and
NGOs.
 Who is entitled to make submissions
 A submission can only be made in terms of Rule 33 of the
Rules, in accordance with Article 5 of the Protocol as read
with Article 34(6) by:

 (i) The Commission

 (ii) State party before the Commission (either
as Applicant or Respondent)
 (iii) State party whose citizen is a victim of a
human rights violation.
 Cause of Action

 (iv) African Intergovernmental Organization

 (v) An individual or NGO in terms of Article 34(6) of the

Protocol

 (vi) A State Party with an interest in a case may apply to

be allowed to join in, according to Rule 53 of the Rules.
 Admissibility criteria for cases brought before
the Court

 Art 56 of the Charter lay down seven

admissibility requirements.

 What are the seven admissibility criteria?

The Seven Admissibility Criteria Under Art. 56 of the Charter:
1) Indicate authors even if the latter request anonymity.
2) Compatible with the Constitutive Act of the AU or with the present Charter.

3) Are not written in disparaging or insulting language directed against the State
concerned and its institutions or to the AU.

4) Are not based exclusively on news disseminated through the mass media.

5) Are sent after exhausting local remedies, if any, unless it is obvious that this procedure
is unduly prolonged.

6) Are submitted within a reasonable period from the time local remedies are exhausted,
or from the date the Commission is seized with the matter

7) Do not deal with cases which have been settled by those States involved in accordance
with the principles of the Charter of the United Nations, or the Constitutive Act of the
AU or the provisions of the present Charter.
 In Dexter Eddie Johnson v Ghana, Application 16/2017, African Court on
Human and Peoples’ Rights, Ruling (Jurisdiction and Admissibility) (28 March
2019), the Court found a challenge to the mandatory death penalty in Ghana to
be inadmissible owing to that applicant’s earlier filing at the UN Human Rights
Committee, which resulted in that body’s finding that Ghana’s mandatory death
penalty regime violated article 6 of the International Covenant on Civil and
Political Rights (ICCPR).
 See Dexter Eddie Johnson v Ghana, Application 16/2017, African
Court on Human and Peoples’ Rights, Ruling (Jurisdiction and
Admissibility) (28 March 2019
 https://africanlii.org/sites/default/files/judgment/afu/african-court/2019-afchpr-6//Johnson%2
0v%20Ghana%20%28No.%20016%20of%202017%29.pdf

 In this case, the African Court interpreted the non bis in idem
principle preventing the applicant from bringing the same
merits question to two different international human rights
treaty bodies, pursuant to the principles of finality codified in
article 56(7) of the African Charter
 Art.6 and 34(6) of the Protocol stipulates that, in
addition to the seven admissibility requirements
under Art. 56 of the Charter, cases brought directly
before the Court by individuals and NGOs are
admissible only when the state against which the
complaint is brought has made a declaration under
Art. 5(3) of the Court’s Protocol accepting the
competence of the court to receive such complaints.
 30 AU member states have accepted the Court’s
jurisdiction by ratifying the Protocol of the African
Charter on the Establishment of an African Court
(Court Protocol).

 By doling so, these states have accepted that cases

may be brought against them, but these cases have to
be submitted first to the African Commission on
Human and Peoples’ Rights.
 Article 34 of the Protocol [Ratification] stipulates that; “at the time
of ratification of this Protocol or any time thereafter, the State shall
make a declaration accepting the competence of the Court to receive
cases under Article 5(3) of this Protocol. The Court shall not receive
any petition under article 5(3) involving a State which has not made
such a declaration.”

 Article 5(3) states as follows: “The Court may entitle relevant Non-
Governmental Organizations (NGOs) with observer status before
the Commission, and individuals to institute cases directly before it,
in accordance with article 34(6) of this Protocol.”
 In addition to ratifying the African Court Protocol, state
parties to the Protocol have the option to make a declaration
under article 34(6) of the Protocol allowing individuals
and NGOs to take cases directly to the African Court after
exhausting domestic judicial remedies.

 To date, only 12 out of the 30 African states (Benin, Burkina

Faso, Cote d’Ivoire, Gambia, Ghana, Malawi, Mali,
Rwanda, Tanzania, Tunisian and Guinea Bissau) have ever
made this declaration since the Protocol had been adopted in
1998.
 DECLARATIONS ENTERED BY AU MEMBER STATES:

S/N Country Signature Deposit Withdrawal Effective date

1. Burkina Faso 14 July 1998 28 July 1998
2. Malawi 09 Sept 2008 28 Oct. 2008
3. Mali 05 Fev 2010 19 Fev 2010
4. Tanzania 09 Mar 2010 29 Mar 2010 14 Nov 2019 13 Nov 2020
5. Ghana 09 Fev 2011 10 Mar 2011
6. Rwanda 22 Jan 2013 06 Fev 2013 24 Fev 2016 23 Fev 2017
7. Cote d’Ivoire 19 Jun 2013 23 Jul 2013 28 Apr 2020 27 Apr 2021
8. Benin 22 May 2014 08 Fev 2016 24 Mar 2020 23 Mar 2021
9. Tunisia 13 Apr 2017
10. Gambia 23 Oct 2018 02 Fev 2020
11. Niger 28 Oct 2021 28 Oct 2021
12. Guinea Bissau 03 Nov 2021 03 Nov 2021

Source: https://www.african-court.org/wpafc/declarations/
 Benin ratified the Court Protocol in 2014 and deposited the
article 34(6)-declaration in 2016. Côte d’Ivoire ratified the
Court Protocol in 2004 and deposited the article 34(6)-
declaration in 2013.

 However, Benin and Côte d’Ivoire withdrew their

declarations, bringing to four the number of states who have
revoked their individual access-declarations. The other states
to do were Rwanda, in March 2016; followed by Tanzania, in
November 2019.
 In line with previous rulings of the African Court, these
withdrawals only becomes effective after 12 months and do
not affect cases that are already pending before the Court or
may still be filed during the 12 months transitional period.

 Under international law, Rwanda, Tanzania, Benin and Côte

d’Ivoire have the obligation to cooperate with the Court in
good faith until all the cases pending before the Court have
been dealt with, since the withdrawal has no retrospective
effect.
As from November 2020, Tanzanian individuals and NGOs
could no longer be able to file human rights-based
petitions before the African Court on Human and Peoples’
Rights.
 Tanzania was the second State—after Rwanda—to withdraw from
Article 34(6). When Rwanda made its Article 34(6) withdrawal in
2016, the Court addressed the issue of its own jurisdiction head-on in
Ingabire Victoire Umuhoza v. Republic of Rwanda, App. No.
003/2014, Ruling on Jurisdiction of 3 June 2016, paras. 67-68.

 The Court found Rwanda’s withdrawal to be valid, but that Rwanda’s

discretion to withdraw was “not absolute.”

 The Court mandated a notice period of one year for withdrawals

and declared that the withdrawal would have no legal effect on
cases pending before the Court.
 Ingabire Victoire Umuhoza v. Republic of Rwanda, Judgment
on 24 Nov. 2017
 https://www.african-court.org/en/images/Cases/Judgment/003-2014-Ingabire%20Victoire%
20Umuhoza%20V%20Rwanda%20-%20Judgement%2024%20November%202017.pdf

 The instant Application emanates from the Judgment of the High

Court of Kigali in Criminal Case No. RP 0081-0110/1O/HC/K]G
delivered on 30 October, 2012, and the Judgment of the Supreme
Court of Rwanda in Criminal Appeal No. RpA 0255112, delivered
on 13 December, 2013.
 INGABIRE VICTOIRE UMUHOZA V RWANDA
(APPLICATION NO. 003/2014) [2018] AFCHPR 5;
(7 DECEMBER 2018) - JUDGMENT ON
REPARATIONS
 FILE:///C:/USERS/USER/DOWNLOADS/INGABIRE%20REPARATION%20LAST%20READING%204%20DEC%20F
ROM%20PABOZI%205%20DEC%20FORMATTED%20WITHOUT%20BOLDS%206%20DEC%2016.58.PDF

 RAJABU & ORS V TANZANIA () [2019] AFCHPR

7; (28 NOVEMBER 2019)
 https://www.african-court.org/cpmt/storage/app/uploads/public/5f5/63e/9c6/5f5
63e9c61d62097036481.pdf

 https://africanlii.org/afu/judgment/african-court/2019/7
 In RAJABU & AMP ORS V TANZANIA, the five Applicants were convicted of
murder and sentenced to death. The Applicants contended that the review before
the Court of Appeal took unreasonably long, that there were grave variances
between witness testimony, that the preliminary hearing and trial were conducted
before different judges, that the mandatory death penalty violated the right to life
and that hanging as a method of execution is cruel, inhuman and degrading.

 The Court held that there had not been any procedural deficiencies in the
domestic proceedings but that the mandatory imposition of the death penalty and
hanging, as a method of execution, violates the Charter. The Court ordered a
rehearing in relation to the sentencing of the Applicants.
 In November 2019, the African Court on Human and Peoples’ Rights in Rajabu
& AMP Others v Tanzania issued its first major decision related to the
substance of the death penalty.

 The Court found that Tanzania’s mandatory death penalty violated article 4 of
the African Charter on Human and Peoples’ Rights (the right to life), because it
constituted an ‘arbitrary’ deprivation of life.

 Following a wake of a string of decisions by the African Court against Tanzania,

including its decision in Ally Rajabu and Others v. Republic of Tanzania, which
struck down Tanzania’s mandatory death penalty in November 2019, Tanzania
withdrew from Article 34(6) of the African Charter’s Protocol.
 On February 29, 2016, Rwanda submitted its withdrawal of its
declaration accepting the competence of the African Court to receive
cases brought by individuals.

 Rwanda had previously made a unilateral declaration under Article

34(6) of the
Protocol to the African Charter on Human and Peoples’ Rights
(the Protocol) allowing individuals and non-governmental
organizations to bring claims directly to the Court against Rwanda.
Rwanda stated that its reason for withdrawal was that its declaration
under Article 34(6) was being exploited by “convicted genocide
fugitives,” likely referring to the Ingabire case.
 To date, Tanzania is the country with the highest number of
AfCHPR judgments against it. Of the 76 finalized AfCHPR cases
published on the Court’s website, 33 (or 40 percent) are against
Tanzania. See AfCHPR, Contentious Matters. Tanzania is also the
State with the most cases filed against it by individuals and NGOs,
with the majority alleging violations of the right to fair trial.

 The URT Government did not specifically state its reasons for
withdrawing its declaration under Article 34 of the Protocol.
 A copy of the withdrawal by the URT Government can be viewed at
https://www.african-court.org/wpafc/wp-content/uploads/2020/10/W
ithdrawal-Tanzania_E.pdf

 What are the legal ramifications for

Tanzania of withdrawal of its declaration
allowing individual and NGO applications
to the African Court?
 Case filing and prosecuting Procedure
 See the Amended Rules of Procedure, 2020

 In accordance with Rule 19 of the Rules of Court (the

Rules), the Court adopted Practice Directions as a guide
to potential litigants.

 All submissions and communications must be submitted at

the seat of the Court, Arusha (Art. 24 & 25 of the
Protocol) either by post, email, fax or courier.
All submissions, communications,
and cases are to be directed to the
Registrar (the Office):
P.O. Box 5274 Arusha;
fax: +255-732-97 95 03; email:
registry@african-court.org
 Submissions must be in writing and only one copy of the
claim is required by the Rules to be submitted to the registry.

 This copy must be in one of the official languages of the

Court, signed by the applicant or representative, give the
details of the applicant and respondent and specify the alleged
violations and order sought, as well as offer proof of
exhaustion of local remedies (Rule 34).
 Upon receipt of a submission, the Registrar shall
establish authenticity thereof (Rule 25), register it, and
acknowledge receipt (Rule 36).

 The Registrar shall make necessary copies and

translations (Rule 25) and shall transmit a copy to
the other party, to the President and Members of the
Court, as well as to other organs as may be necessary
(Rule 35).
The Registrar shall require the parties to file
their pleadings in terms of the Rules (Rule
25).

And when these are concluded, will notify

the parties of the date of hearing.
 No statue of limitations applies as to when a matter can
be brought before the Court.

 The Rules set no limits save for a reasonable time from the
date local remedies were exhausted” unless the Court set
a date [Rule 40(6)].

 The Protocol in Art.3 extends the Court’s jurisdiction “to all

cases and disputes submitted to it.” This leaves the Court
with a very wide discretion as to when it may receive
submissions.
 However, once a case is submitted, the Registrar
shall “upon receipt” [Rule 25(2)(c)] transmit
copies of it to the judges of the Court [Rule 35(1)]
and all relevant p[arties in terms of Rule 35(2).

 Much as there is no exact time period laid down,

the effect of Rule 25(2)(c) is to stress on
immediacy.
 The Respondent and any other interested party
on the other hand as detailed in Rule 35, has very
specific time limits to comply with.

 Upon receipt of the application, they must notify

the Registrar of their representative’s’ names and
addresses within 30 days [Rule 35(4)].
 And within 60 days (unless otherwise ordered by the
Court), the Respondent must file his reply to the
application [Rule 37].

 The Applicant shall be entitled to receive

acknowledgment of his application (Rule 36), and to
his application being copied, translated and transmitted
to the persons/organs entitled to receive the same
(Rules 25 and 35).
 The Applicant shall be entitled to be notified of any
request for the Applicant to file further documents or
pleadings (Rule 39 and 41), and to be informed of the
date of a hearing (Rule 42) or other disposal of his
application (Rule 38).

 The Applicant shall be obliged to comply with the rules

and any requests or directions by the Court (Rule 41).
 The Respondent shall be entitled to receive any
application against the Respondent and to be accorded
the opportunity to reply (Rule 35 and Rule 37).

 The Respondent shall also be entitled to be notified of

the date of hearing or any request, order or direction of
the Court and shall be expected to comply therewith
(Rules 39 and 41).
 Procedure for amicus curiae at ACtHPR

 Amicus curiae, Latin for “friend of the court”, is a

procedural instrument common before most
international courts, tribunals, and several quasi-
judicial bodies and commissions, including the
African Court on Human and Peoples’ Rights
(ACtHPR) and the African Commission on Human
and Peoples’ Rights (ACommHPR).
 Before the African Court, amicus curiae is a procedural instrument
at the court’s full discretion that allows an individual or
organization to submit solicited or unsolicited information and/or
legal opinions on matters of international law to the court
(Practice Directions 42 and 45).

 While amici curiae are not required to be neutral bystanders, the

African Court has disregarded partisan views [Umuhoza v. Rwanda
2016, para 38].

 African Commission amicus curiae is dominated by openly partisan

briefs
 The main function of amici curiae in international
disputes settlement is to convey information to
the deciding body to assist it in rendering a
fully informed decision of high legal quality.

 Amicus curiae often convey information and

perspectives the adjudicating institution may
otherwise not access.
 Practice Directions 42-46 address amicus curiae participation
by establishing guidelines for participation and the amici’s
relationship to the Court and the parties.

 The Practice Directions stipulate: Request to act as amicus

curiae
 PD 42:
 PD 43:
 PD 44:
 PD 45:
 PD 46:
The Practice Directions presupposed the
Court’s authority to admit amici curiae, which
may be anchored on the authority in the
Court’s evidentiary rules under Article 26(2)
of the Protocol which stipulates that the Court
“may receive written and oral evidence,
including expert testimony.”
 Rule 45 of the Rules of Court elaborates
Art. 26 of the Charter thus:
 The authority to receive amici curiae can be regarded
as implied in the ACtHPR’s authority to devise its own
Rules of procedure in Article 8 and 33 of the Protocol
or, for legal submissions the principle of jura novit
curia – the court examines the case under all
relevant legal perspectives and allows it to inform
itself on the relevant law from available sources.
Amici curiae may be made by an individual
or organization (Practice Directions 42, 45).

The term “organization” is not defined, but

it is broad to encompass international
organizations and NGOs. (See Anudo v
Tanzania case).
 Unsolicited submissions are subject to a request for
leave procedure (Practice Direction 42). There are no
forma guidelines for requests.

 The sole, substantive requirement for requests for leave

is that the applicant shall specify “…the contribution
they would like to make with regard to the matter.”
 At minimum, this requires that submissions are relevant to the case
at issue and fall within the scope of the court’s jurisdiction for it to
be able to consider them (Practice Direction 45 for solicited amicus
curiae).

 The ACtHPR has full discretion over its decision to admit amici
curiae (Practice Direction 43).

 However, the Court must weigh the potential benefits of amicus

curiae participation with possible negative effects, particularly on the
parties’ due process rights (See Umuhoza v Rwanda case).
 Successful applicants are notified by the Registrar and
furnished with the application and case pleadings “relevant to
the matter for which the request for amicus curiae has been
made” (Practice Direction 44). There are no formal or
substantive limitations regarding the length, form, or
language of submissions.

 The Court maintains flexibility as submissions both oral and

written may be permitted at any stage of the proceedings (see
Konate v Burkina Faso case).
 The parties assume an ancillary role in regard of the
participation of amici curiae. According to Practice Direction
46, they are informAnudo v Tanzania caseed of briefs and
receive copies (See, para 25.

 The practice directions do not extend to them a right to veto

participation of an amicus curiae – in Umuhoza v Rwanda
case an objection against the admission of an amicus curiae
was rejected.
An applicant cannot bring a case and at the
same time apply for leave to make amicus
curiae submissions.

See Request for Advisory Opinion by the

Socio-Economic Rights and Accountability
Project (SERAP), para 17,
Amici curiae are subject to judicial discretion
and obtain no formal status in the
proceedings, including formal rights.

They are typically driven by a certain interest

in the case and are usually partial.
 Procedure for enforcement/implementation of Judgments

 The African Court in finalizing cases has made a range of orders

providing reparations for victims of the violations found. These
have included:

 The payment of compensation (Zongo et al v, Burkina Faso Ruling

on Reparations para 111 – murder of a journalist.

 Release of an individual from detention (See Alex Thomas v

Tanzania Interpretation of Judgment)
 Guarantees of non-repetition such as amendment
of legislation Konate v Burkina Faso para
176(8); AFDF and IHRDA vs Mali para 135 (x)

 See Activity Report of the African Court 2018

 See Interim Report of the African Court on Non-
Compliance
Ensuring implementation is a multi-faceted
process, requiring a multi-dimensional
approach which recognizes the specificity
and complexities of individual cases.
References
On copies of Basic Documents visit the website of the African Court
at https://www.african-court.org/wpafc/documents/
 AFRICAN (BANJUL) CHARTER ON HUMAN AND PEOPLES'
RIGHTS
 http://www.african-court.org/wpafc/wp-content/uploads/2020/04/AFRICAN-B
ANJUL-CHARTER-ON-HUMAN-AND-PEOPLES-RIGHTS.pdf

 PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND

PEOPLES’ RIGHTS ON THE ESTABLISHMENT OF AN AFRICAN
COURT ON HUMAN AND PEOPLES-RIGHTS
 http://www.african-court.org/wpafc/wp-content/uploads/2020/10/2-PROTOCO
L-TO-THE-AFRICAN-CHARTER-ON-HUMAN-AND-PEOPLES-RIGHTS-
ON-THE-ESTABLISHMENT-OF-AN-AFRICAN-COURT-ON-HUMAN-AN
D-PEOPLES-RIGHTS.pdf
 PROTOCOL OF THE COURT OF JUSTICE OF THE AFRICAN UNION
 https
://www.african-court.org/wpafc/wp-content/uploads/2020/10/8-PROTOCOL-OF-THE-CO
URT-OF-JUSTICE-OF-THE-AFRICAN-UNION.pdf
 https://www.african-court.org/wpafc/wp-content/uploads/2020/10/23-PROTOCOL-ON-A
MENDMENTS-TO-THE-PROTOCOL-ON-THE-STATUTE-OF-THE-AFRICAN-COURT
-OF-JUSTICE-AND-HUMAN-RIGHTS.pdf

 PROTOCOL ON AMENDMENTS TO THE CONSTITUTIVE ACT OF THE AFRICAN

UNION
 https://www.lrct.go.tz/uploads/documents/sw-1604418863-amendments.pdf
 PROTOCOL TO THE AFRICAN CHARTER ON HUMAN
AND PEOPLES’ RIGHTS ON THE RIGHTS OF WOMEN IN
AFRICA
 https://www.african-court.org/wpafc/wp-content/uploads/2020/10/19
-PROTOCOL-TO-THE-AFRICAN-CHARTER-ON-HUMAN-AND
-PEOPLES-RIGHTS-ON-THE-RIGHTS-OF-WOMEN-IN-AFRICA
.pdf

 AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF

THE CHILD
 https://www.african-court.org/wpafc/wp-content/uploads/2020/10/12
-AFRICAN-CHARTER-ON-THE-RIGHTS-AND-WELFARE-OF-T
HE-CHILD.pdf
 RULES OF COURT OF THE AFRICAN COURT ON HUMAN AND
PEOPLES’ RIGHTS
 https
://www.african-court.org/wpafc/wp-content/uploads/2021/04/Rules-Final-Revi
sed-adopted-Rules-eng-April-2021.pdf

 PRACTICE DIRECTIONS
 http://www.african-court.org/wpafc/wp-content/uploads/2020/06/Practice-Dire
ctions-to-Guide-Potential-Litigants-En.pdf
 PRACTICE DIRECTIONS FOR VIRTUAL SESSIONS AT THE
AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
 https://www.african-court.org/wpafc/wp-content/uploads/2020/07/Practice_Di
rections_for_Virtual_Sessions_EN.pdf
 Observations on the Rules of the African Court on Human and Peoples’
Rights Gino J Naldi* Researcher in International Law, United Kingdom
 http://www.saflii.org/za/journals/AHRLJ/2014/20.pdf

 OFFICIAL BULLETIN VOLUME 1, MAY 2020, AFRICAN COURT

COALITION DISCUSSIONS: STATES WITHDRAWALS FROM ARTICLE
34(6) OF THE AFRICAN COURT PROTOCOL
 https://www.african-court.org/wpafc/wp-content/uploads/2020/11/ACC-Publi
cation_Volume-1_2020_ENG.pdf

 A Publication of the Coalition for an Effective African Court on Human and

Peoples’ Rights
 PRESS STATEMENT, CENTRE FOR HUMAN RIGHTS
EXPRESSES CONCERN ABOUT THE WITHDRAWAL OF
DIRECT INDIVIDUAL ACCESS TO THE AFRICAN COURT BY
BENIN AND CÔTE D’IVOIRE, 5 May 2020
 https://www.chr.up.ac.za/images/centrenews/2020/Centre_for_Huma
n_Rights_expresses_concern_about_the_withdrawal_of_direct_indiv
idual_access_to_the_African_Court_by_Benin_and_Cote_dIvoire.pd
f
 AFRICAN COURT LAW REPORT VOLUME 4 (2020)
 Report of judgments, orders and advisory opinions of the
African Court on Human and Peoples’ Rights African Court
Law Report Volume 4 (2020)
 https://www.african-court.org/wpafc/african-court-law-report-
volume-4-2020/

 AFRICAN COURT LAW REPORT VOLUME 3 (2019)

 https://www.african-court.org/wpafc/african-court-law-report-
volume-3-2019/
 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
 Report of judgments, orders and advisory opinions of the
African Court on Human and Peoples’ Rights
African Court Law Report Volume 2 (2017-2018)
 https://www.african-court.org/wpafc/african-court-law-report-volume
-2-2017-2018/

 AFRICAN COURT LAW REPORT VOLUME 1 (2006-2016)

 https://www.african-court.org/wpafc/african-court-law-report-volume
-1-2006-2016/
 Admissibility of complaints before the African Court
PRACTICAL GUIDE
 https://www.refworld.org/pdfid/577cd89d4.pdf

 PRACTICAL GUIDE: THE AFRICAN COURT ON HUMAN

AND PEOPLES’ RIGHTS towards the African Court of Justice
and Human Rights
 https://www.fidh.org/IMG/pdf/african_court_guide.pdf

 Jurisdiction and Admissibility: African Court on Human and

Peoples’ Rights (ACtHPR) Misha Ariana Plagis
 https://opil.ouplaw.com/display/10.1093/law-mpeipro/e3760.013.37
60/law-mpeipro-e3760?print=pd
f
 SALC Handbook Series
 Justice for all: Realising the Promise of the Protocol establishing the African Court on
Human and Peoples’ Rights, May 2014 © 2014 Southern Africa Litigation Centre

 https://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/Justice-for-all-
Realising-the-Promise-of-the-Protocol-establishing-the-African-Court-on-Human-and-Peo
ples-Rights-1.pdf

 Joseph M. Isanga, The Constitutive Act of the African Union, African Courts and the
Protection of Human Rights: New Dispensation?, 11
 Santa Clara J. Int'l L. 267 (2013).
 Available at: http://digitalcommons.law.scu.edu/scujil/vol11/iss2/1
 https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1140&context=scujil
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