Abstract
AbstractAccording to various provisions of the Protocol Establishing the African Court on Human and Peoples’ Rights, the court has jurisdiction over the interpretation and / or application of human rights instruments ratified by the states concerned. This article considers whether, in terms of those provisions, the African Charter on Democracy, Elections and Governance (ACDEG) is a relevant human rights instrument over which the court can exercise its jurisdiction. It aims to consider the contours of the main question posed and clarify the relevant aspects in light not only of the court's jurisprudence but also of the overall legal framework of the African Union. In this regard, before drawing appropriate conclusions, it addresses three main questions. What is a human rights instrument? Which elements in the ACDEG clearly relate to human rights? And, what is the court's approach on the issue?
Highlights
The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (10 July 1998) provides in its article 3(1) that: “[t]he jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the [African Charter on Human and Peoples’ Rights], this Protocol and any other relevant human rights instrument ratified by the States concerned”
A similar provision is found in article 4 of the Court Protocol, which deals with the jurisdiction of the African Court on Human and Peoples’ Rights (ACtHPR) in advisory matters and states that, “the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments”
As contentious matters are concerned, it is apparent from this article that the ACDEG is a human rights instrument, except in the case of provisions that do not deal directly with human rights issues and cannot in any way be interpreted as linked to human rights issues
Summary
The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (10 July 1998) (the Court Protocol) provides in its article 3(1) that: “[t]he jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the [African Charter on Human and Peoples’ Rights], this Protocol and any other relevant human rights instrument ratified by the States concerned” (emphasis added). The ACtHPR recently clarified some aspects of this issue following an application brought by a non-governmental organization (NGO) called Actions pour la Protection des Droits de l’Homme (APDH) against Côte d’Ivoire This case concerned the obligation incumbent on state parties to establish independent and impartial electoral bodies, as provided by article 17(1) of the ACDEG, and the obligation to protect the right to equality before the law and equal protection by the law, as provided, inter alia, by article 10(3) of the ACDEG. This article aims to consider the contours of the main question posed and clarify the relevant aspects, in light of the ACtHPR’s jurisprudence, and of the overall legal framework of the African Union (AU) In this regard, the first question is: what is a human rights instrument? The article analyses the ACtHPR’s approach, leading to appropriate conclusions
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