The African Charter: Just one treaty among many? The development of the material jurisdiction and interpretive mandate of the African Court on Human and Peoples' Rights

Annika Rudman

doi:10.17159/1996-2096/2021/v21n2a28

Abstract

In contentious cases the material jurisdiction of the African Court is the jurisdiction to interpret and apply the instruments that are provided for in article 3(1) of the African Court Protocol. For the African Court to appropriately apply these instruments it must perform an interpretive role and utilise, at its discretion, information available from sources other than those that fall under its material jurisdiction and the sources of law stipulated in article 7 of the Court Protocol. In a 2001 article Heyns brought to our attention a number of potential problems related to the material jurisdiction of the African Court. He particularly pointed us to the loss of the 'African' in article 3, the narrow approach to the applicable sources of law in article 7 and the uncertainty of the position of articles 60 and 61 of the African Charter in guiding the interpretive mandate of the African Court. Through an analysis of the Court's jurisprudence, guided by these three essential issues, the article explores how the Court has approached its material jurisdiction during its first ten years of its existence. It further aims to establish what methodology the Court has developed to address the lack of an interpretive provision in the Court Protocol with specific reference to the application of articles 60 and 61 of the Charter. The analysis demonstrates a pragmatic approach to material jurisdiction, firmly grounded in the principle of complementarity.

Highlights

The term ‘jurisdiction’ can best be described as the power that signifies the scope within which an adjudicatory body can act with integrity over persons, matters and territory
For the African Court to appropriately apply these instruments it must perform an interpretive role and utilise, at its discretion, information available from sources other than those that fall under its material jurisdiction and the sources of law stipulated in article 7 of the Court Protocol
The analysis demonstrates a pragmatic approach to material jurisdiction, firmly grounded in the principle of complementarity

Summary

Introduction

The term ‘jurisdiction’ can best be described as the power that signifies the scope within which an adjudicatory body can act with integrity over persons, matters and territory. In further elaborating on the danger of the broad material jurisdiction of the Court, Heyns pointed to the loss of ‘African’ in article 3(1) which, in his opinion, could lead to the abandonment of the ‘unique conception of human rights in Africa’ and the acceptance of international norms ‘with open arms in an uncritical fashion’.7 He emphasised the potential problems with utilising article 7 as an interpretation clause as the wording of this article would not provide the African Court with the same opportunity as that of the African Commission under articles 60 and 61 to correct the ‘flaws of the Charter system’.8. Part 4 presents the concluding observations, responding to some of Heyns’s concerns

Establishing its material jurisdiction

Characterisation of a ‘human rights instrument’

Categories of human rights instruments

APDH v Côte d’Ivoire

Lack of an interpretation clause

Conclusion