Will the expanded African Court affect the Human Rights Jurisdiction of the African Court of Justice and Human and Peoples’ Rights?

Of the three sections constituting the expanded African Court, only the Human Rights Section corresponds to an already-existing court – the African Court on Human and Peoples’ Rights.  This Court has been groundbreaking in many ways, from its expansive jurisdiction to its progressive decisions that have helped to solidify less well-defined rights, such as those of indigenous communities.  Some of the biggest questions about the Malabo Protocol therefore concern how the transition from the current African Court to the expanded African Court will affect the human rights mandate of the Court.

Under the terms of article 7 of the Malabo Protocol, the Human and Peoples’ Rights Section of the expanded African Court “shall be competent to hear all cases relating to human and peoples’ rights.” Such cases include those relating to the interpretation and application of the African Charter on Human and Peoples’ Rights, the African Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. In addition, the Human and Peoples’ Rights Section has jurisdiction over cases involving “any other legal instrument relating to human rights” provided it has been ratified by the States Parties concerned.

Importantly, these provisions of Malabo Protocol do not alter the current human rights jurisdiction of the African Court, either with respect to its substantive jurisdiction or its jurisdiction over states.  First, the Malabo Protocol maintains the expansive human rights jurisdiction of the African Court over any human rights treaty ratified by the States concerned.  The Malabo Protocol therefore maintains the African Court’s expansive substantive jurisdiction – a much broader jurisdiction than that granted to similar regional human rights courts.  Second, the Malabo Protocol ensures the continued jurisdiction over any State that ratified the original African Court protocol.  Thus, the 30 members States of the current African Court will be subject to the human rights jurisdiction of the expanded African Court, regardless of whether they ratify the Malabo Protocol.

The Malabo Protocol also makes several changes to the provisions regarding access to the African Court’s human rights jurisdiction.  Some of these changes substantially expand access to the Court.  For example, the Malabo Protocol permits a number of new institutions – including the African Committee of Experts and National Human Rights Institutions – to have unfettered direct access the Court.  In addition, the Malabo Protocol permits a wider variety of NGOs to bring cases directly to the Court – no longer is this provision limited to NGOs with observer status before the African Commission, but now includes NGOs with observer status before the African Committee and other AU organs. This means that almost 50 bodies involved in the promotion and protection of human rights on the African continent, including many that have been highly involved in human rights litigation, may now bring human rights cases directly to the African Court.

Despite these positive changes, the access provisions have been among the most criticized in the Malabo Protocol due primarily to a single change in the provision regarding communications by NGOs and individuals.  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.  However, the Malabo Protocol specifies that such NGOs and individuals must be “African,” a qualification not currently required.  Legitimate concerns have been raised that this requirement may unintentionally exclude a large number of NGOs based in Africa, as well as prevent meritorious communications by non-African individuals whose rights have been violated in Africa and non-African NGOs.