Does the African Court reduce civil society participation in the pursuit of justice?
The Malabo Protocol changes the types of entities, including NGOs, that may access the human rights jurisdiction of the African Court as this is the only jurisdiction that currently exists within the present African Court. It is then appropriate to compare these changes to the original African Court protocol.
Like the original African Court Protocol, the Malabo Protocol provides that States may submit a declaration permitting certain NGOs and individuals to institute human rights cases directly before the African Court. The Malabo Protocol makes two changes to the original provision, however. First, while the original protocol required such NGOs to have observer status before the African Commission on Human and Peoples’ Rights, the Malabo Protocol grants access to NGOs that are accredited to the African Union or any of its organs, including but not limited to the African Commission. Second, the Malabo Protocol specifies that such NGOs and individuals must be “African.”
The first change made by the Malabo Protocol is positive – it expands the number of NGOs that may bring cases to the Court (provided a State has deposited the relevant declaration) by permitting petitions by NGOs with observer status before a much wider range of AU organs. Under the original protocol, only NGOs with observer status before the African Commission on Human and Peoples’ Rights could directly access the African Court. By contrast, the Malabo Protocol provides for direct access by NGOs with observer status before any AU organ or institution, an apparent list of which is included in the chart below. Because some NGOs have observer status only before these other AU organs, and not the African Commission, this change ultimately expands access.
|Individual and NGO access to the current African Court||Individual and NGO access to the Human Rights Section|
Non Governmental Organizations (NGOs) with observer status before the:
(1) African Commission on Human and Peoples’ Rights
African Non-Governmental Organizations (NGOs) with Observer Status with the African Union or its organs or institutions, likely including the:
(1) AU Assembly
(2) Executive Council
(3) Pan-African Parliament
(4) Permanent Representatives’ Committee
(5) Specialized Technical Committees
(6) Economic, Social & Cultural Council
(7) Financial Institutions
(8) AU Commission on International Law
(9) African Commission on Human and Peoples’ Rights
(10) African Committee of Experts on the Rights and Welfare of the Child
(11) Peace and Security Council
Unfortunately, a second change in the Malabo Protocol simultaneously restricts access of both NGOs and individuals by requiring that they “African.” A pre-existing definition in the Merger Protocol defines African NGOs as “Non-Governmental Organizations at the sub-regional, regional or inter-African levels as well as those in the Diaspora as may be defined by the Executive Council”; there is no definition of “African individuals.” Even with a definition of African NGOs, however, it is far from evident which NGOs will qualify. Will NGOs working in a single African country qualify as NGOs at the “sub-regional” level? A recent decision of the African Court on Human and Peoples’ Rights, although addressing a slightly different question, suggests that an NGO will meet this definition only if it has “structures at the sub-regional, regional or continental level” or if it “undertakes its activities beyond the territory where it is registered” – activities in a single country may therefore be insufficient. In addition, it is unclear from the wording of the provision whether the Executive Council will have authority to define NGOs at the sub-regional, regional, and inter-African levels, or only which NGOs in the Diaspora qualify as “African.” If the former, will the Executive Council adopt criteria similar to those of the AU’s Economic, Social, and Cultural Council, which require, among other things, that at least 50% of the organization’s resources be derived from its membership? Although this criterion was “[i]ntended to exclude ‘foreign’ or ‘international’ organizations,” it has been heavily criticized because it “also effectively excludes a large proportion of” human rights organizations and other groups based in Africa. Depending on how these questions are answered, it is possible that NGOs registered in African countries, managed and staffed by African citizens, and focused on African issues might nonetheless be disqualified under the Malabo Protocol’s new provision.