The New African Union: Will It Promote Enforcement of the Decisions of the African Court of Human and Peoples' Rights?
Martorana, Carolyn Scanlon, The George Washington International Law Review
In July 2006, the first eleven judges of the African Court on Human and Peoples' Rights (African Court or Court) were sworn in during the Seventh Session of the Assembly of Heads of State and Government in Banjul, the Gambia.1 Even more recently, the African Court found a home in Arusha, in Tanzania.2 The African Court was established in 1998 pursuant to the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (Protocol) and, after achieving the required fifteen ratifications of African nations, entered into force on January 1, 2004. 3
The Court's precursor was the African Commission on Human and Peoples' Rights (Commission), which was created pursuant to the African Charter on Human and Peoples' Rights (Charter) in 1981. 4 The Commission was formally inaugurated in 1987, 5 and since its inception, it has served as the sole forum for African countries to bring their grievances under the Charter.6 The Charter sets forth the rights and duties of member states as well as individuals,7 focusing upon the protection of human and peoples' rights on the African continent by establishing bodies for that purpose and passing human rights legislation by the respective member states.8
The Commission, which was created to promote human rights and ensure their protection in Africa,9 has authority to interpret all provisions of the Charter.10 The Assembly of Heads of State and Government of the Organisation of African Unity (Assembly)11 choose the Commissioners. Often, the Commissioners also hold important government positions12 despite the Charter's provision that they must serve in their personal capacities,13 which could compromise their independence.14 Another shortcoming of the Commission is its inability to issue binding orders.15 Without these orders, the Commission merely pleads with nations to come into compliance with the Charter.16 Due to the Commission's lack of independence and lack of power to enforce its determinations under the Charter, the Organization of African Unity (OAU) eventually recognized the need for an independent judicial body with the authority to bind parties under the Charter.17 Thus, the OAU conceived the Court to complement, but not replace, the Commission.18
The Protocol gives the African Court the power to order reparations for human rights offenses19 committed in violation of the Charter or any other human rights instrument that the parties to a particular dispute have ratified.20 When the African Court begins its work, the Council of Ministers, an organ of the OAU, will monitor execution of the Court's judgments,21 and in cases of noncompliance with the Court's orders, the Court will identify recalcitrant states to the Assembly in its annual report.22
This Note will attempt to analyze the likelihood of compliance with the African Court's mandates once it begins hearing disputes, in light of African states' abandonment of the OAU for a new body, the African Union (AU).23 The AU provides a new framework for relationships between African nations centered around a more pan-Africanist theme, which the OAU did not emphasize.24 Part II provides background information about the AU, the Commission, and the Court. This Part also discusses the new institutions created by the AU, as well as those that were carried over from the OAU, particularly the Assembly and the Council of Ministers. Part II. B discusses the Commission and how the Charter contributed to its failure, and Part ILC identifies features of the Protocol that are significant departures from the Commission's regime.
Part III suggests that the Court, heralded as a much needed solution to the shortcomings of the Commission, may still face hurdles in enforcing its judgments if the benefits of membership to the AU do not provide enough incentive to ensure compliance. This Part will also discuss how, in cases where the offending party fails to comply with the Court's judgment, the matter will end up in the same hands as it would have in the days of the ineffective Commission: those of the Assembly. …