The African Court denies civil society access to justice and fails to pronounce on the independence of the African Commission on Human and Peoples’ Rights
JOHANNESBURG, SOUTH AFRICA. The Coalition of African Lesbians is deeply disappointed by the recent decision of the African Court on an advisory opinion brought by CAL and the Centre for Human Rights (CHR) in November 2015.
The Court found that CAL and the Centre for Human Rights, the two applicants in the matter, did not qualify as “an African organisation recognised by the AU” and therefore are not entitled to bring a request for advisory opinion before this Court. Consequently, the Court did not pronounce on the second part of the request, namely how the word ‘consider’, listed in article 59(3) of the African Charter should be interpreted. This decision, in effect leaves the space open for the African Union to interfere in the decision-making processes of the African Commission on Human and People’s Rights (ACHPR) and threatens the independence of the ACHPR.
The Court ruled in a similar manner on all other advisory opinions brought before it by non governmental organisations, and echoes the decision it took in May 2017 in a matter brought by Nigeria-based NGO, Socio-Economic Rights and Accountability Project (SERAP). In the SERAP decision, the Court stated that the interpretation of “an African organisation recognised by the AU” only applies to NGOs with memorandums of understanding with the AU or organisations with observer status with the African Union, and not the ACHPR, which is an organ of the AU but not the AU itself. The Court therefore refused to engage with the substantive issues raised in SERAP’s request.
The matter brought by CAL and CHR in front the African Court has met the same outcome, and sets a dangerous precedent in terms of jurisprudence.
CAL disagrees with the reasoning and decision of the Court. CAL notes and supports the submissions made by Zambia and Cape Verde on the question of SERAP’s eligibility to bring an advisory request before the Court, that observer status with an organ of the AU (the African Commission on Human and Peoples’ Rights) signifies that an organisation is recognised by the AU.
The implications of the Court’s decision
Access to the Court’s advisory opinion mandate for NGOs severely restricted The decision of the African Court effectively bars most civil society organisations and human rights defenders from seeking redress and justice from the most important court on the continent tasked with defending human rights. The opinion refers to AU Executive Council decision EX.CL 195 (VII) “Criteria for Granting Observer Status and for a System of Accreditation within the African Union” and yet this document has not been made available to us, despite request for such and also extensive internet research. In addition, there is no public record of organisations that have secured observer status with the AU or who have memorandums of understanding with the AU. Under these circumstances, the process or criteria for obtaining AU observer status are opaque and thus the ability for NGOs to request advisory requests from the African Court is de facto denied.
Court’s failure to fulfill its mandate in interpreting the African Charter on Human and Peoples’ Rights The decision also undermines CSOs role in promoting and protecting human rights – a role recognised in countless international and regional agreements, many of which African states are party to. This in turn threatens the Court’s mandate to protect and promote human and peoples’ rights and to interpret the African Charter on Human and Peoples’ Rights.
Court’s failure to protect the independence of the ACHPR’s decision making in relation to granting observer status to NGOs, without interference by the AU The Court’s failure to deal with the substance of the advisory opinion may also threaten the ACHPR’s past and future decisions regarding the granting of observer status to NGOs.
CAL was granted observer status to the ACHPR in April 2015. At the 25th African Union Summit in June 2015, during the consideration of the report submitted by the ACHPR, the Executive Council of the African Union requested that the ACHPR:
“take into account the fundamental African values, identity and good traditions, and to withdraw the observer status granted to NGOs who may attempt to impose values contrary to the African values; in this regard, requests the ACHPR to review its criteria for granting observer status to NGOs and to withdraw the observer status granted to the Organization called CAL, in line with those African Values.”
Viewing this decision of the Executive Council as threatening the independence and the decision-making power of the ACHPR, CAL and the Centre for Human Rights of the University of Pretoria approached the African Court on Human and Peoples’ Rights for an Advisory Opinion on the interpretation of the word ‘consider’ in the African Charter wishing to clarify the extent of the power the Executive Council of the African Union has over the ACHPR.
CAL calls on all members of civil society, organisations, human rights defenders, national human rights institutions and state parties to the African Charter to defend the independence of African human rights institutions and mechanisms. CAL further calls on the ACHPR to stand by its April 2015 decision to grant CAL observer status and thereby continue to engage in this critical African human rights space.
The Coalition of African Lesbians is a feminist, activist and pan Africanist network of 14 organisations in 11 countries in sub-Saharan Africa committed to advancing freedom, justice and bodily autonomy for all women on the African continent and beyond.
For more information please contact: