The African Charter on Human and Peoples’ Rights 1 , also known as the Banjul Charter, entered into force on 21 October 1986, after its adoption in Nairobi (Kenya) five years earlier by the African Union (AU) (then Organisation of African Unity). Currently, the instrument has been ratified by 54 of the 55 Member States of the African Union, with Morocco being the lone State that has not ratified the African Charter 2 . Its advent signalled a new era for the protection of Human Rights in Africa.
The African Charter has provided for the creation of the African Commission on Human and Peoples’ Rights (Article 30), whose task is to oversee and interpret the Charter. A Protocol on the establishment of the African Court on Human and Peoples’ Rights was later added to the Charter, creating the African Court on Human and Peoples’ Rights. The Protocol came into effect on 25 January 2004, and as of September 2015, has been signed and ratified by 29 African states.
The African Court was partly created in response to the weak enforcement capacity of the African Commission, whose decisions are not legally binding on the state. Today both institutions operate for upholding the African Charter, although with different procedures, requirements for submitting application and implementation force. The relationship is governed by the Protocol establishing the Court and the two institutions’ Rules of Procedure. 3 They can both request an opinion of the other institution, the Court may transfer a matter for which it is seized to the Commission, and the Commission may on its own accord submit a communication to the Court in particular in case of massive Human Rights violations or in case of non-compliance to its recommendations by a State party to the Protocol.
It should also be noted that the African Court is set to transform further once two additional protocols come into force. The first is the Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR Protocol) which was adopted in July 2008 but is not yet in force. The ACJHR Protocol merges the African Court with the Court of Justice of the African Union to form a singular court. The second development is the Protocol on Amendments to the Protocol on the Statute of the African court of Justice and Human Rights (commonly referred to as the Malabo Protocol) which was adopted in June 2014 but is also not yet in force.
Notably, the Malabo Protocol introduces international criminal jurisdiction to the merged court which will be known as the African Court of Justice and Human and Peoples’ Rights (ACJHPR). It is in this context that the Malabo Protocol also introduces corporate criminal liability which may be discerned by “proof that it was the policy of the corporation to do the act which constituted the offence.” 4 Beyond genocide, war crimes and crimes against humanity, the Malabo Protocol includes a series of offences of high relevance to corporate accountability which include mercenarism, corruption, money laundering, trafficking in hazardous wastes and illicit exploitation of natural resources. It remains to be seen as to how the Malabo Protocol will be operationalized or when it will come into force, however, concerns have already been raised in relation to the legal standards contained in the Protocol and the capacity of the Court to deliver on its expanded mandate. 5
In addition to the African Charter, other Human Rights instruments have been established:
- The protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. 6 Where its provisions have been violated and local remedies have failed to guarantee them, it is possible to ask the African Commission and Court to consider the case. 7
- The Charter on the Rights and Welfare of the Child. 8 Where its provisions have been violated and local remedies have failed to guarantee them, it is possible to ask the African Committee of experts on the Rights and Welfare of the Child 9 and the African Court to consider the case.
There are also different rapporteurs and working groups within the African system that individuals and communities can reach out to.
Finally, five Regional Economic Communities’ (REC) tribunals have also been established to hear cases regarding the interpretation and application of the different Regional economic Community treaties, including their Constitutive Acts, which oblige State Parties to respect Human Rights.