AMNESTY INTERNATIONAL
AI Index: AFR 01/004/2004 (Public)
22 January 2004

Embargo Date: 22 January 2004 00:01 GMT

Amnesty International welcomes the entry into force of the Protocol to the
African Charter on Human and Peoples' Rights Establishing an African Court
on Human and Peoples' Rights (the Protocol) after the Union of Comoros
became the 15th state to ratify the Protocol on 26th December 2003.

According to the provision of Article 34(3), "the Protocol shall come into
force thirty days after fifteen instruments of ratification or accession
have been deposited." The ratification by Comoros has thus paved the way
for the entry into force of the Protocol on 25 January 2004 and for the
establishment of the Court. Other states that have ratified the Protocol
are: Algeria; Burkina-Faso; Burundi; Côte d'Ivoire; Gambia; Lesotho;
Libya; Mali; Mauritius; Rwanda; Senegal; South Africa; Togo; and Uganda.

Once it has been established, the Court will consider cases of human
rights violations referred to it by the African Commission on Human and
Peoples' Rights (African Commission) established pursuant to the African
Charter on Human and Peoples' Rights (African Charter) and states parties
to the Protocol and, where a state party accepts such a jurisdiction, by
individuals and non-governmental organizations (NGOs). Unlike the African
Commission, the African Court possesses the authority to issue a binding
and enforceable decision on cases brought before it.

The entry into force of the Protocol is an extremely positive step towards
demonstrating African governments' commitment to realise the spirit and
letter of the African Charter and ensure the protection of human rights in
Africa. The establishment of an independent, effective, and efficient
African Court would make a vital contribution to the efforts to strengthen
the African regional human rights system, and could stimulate positive
change throughout Africa. Furthermore, the Court would provide the
platform for the articulation of international legal principles at the
regional level, as well as direction and precedents for domestic courts.
It would allow victims of human rights violations or their representatives
access to a robust institution that is capable of holding states parties
accountable to their obligations both under the African Charter and the
Protocol as well.

Now that the Protocol has entered into force, the next critical stage is
the nomination and election of judges and the establishment of a fully
functional Court. Amnesty International calls on states nominating a
candidate for judge to take measures to ensure the nomination of the
highest qualified candidates by fulfilling the criteria set out in the
Protocol, including that of individual competence, independence, and
impartiality and "adequate gender representation." States parties should
conduct transparent processes, including consultation with civil society.
Similarly, the drafting of the Court's rules of procedure by the judges
should be transparent and open to participation of civil society.
Consultations with competent NGOs should be held on these issues as well
as any other operational aspects regarding the establishment of the Court.
Amnesty International further calls on:

* African governments that have not yet done so to ratify the Protocol
without further delay. In addition, states - including those that have
already ratified - should make declarations allowing individuals and NGOs
direct access to the Court.
* African governments to review their legislation and practice, to ensure
that these are in full conformity with the Protocol and the African
Charter.
* African governments to ensure that the Court is allowed to function
independently, impartially and effectively, and to develop its own case
law. African governments should cooperate fully with the Court, including
by according high priority to the prompt compliance with the judgments and
decisions of the Court.
* African governments to ensure that interested people are given the
opportunity to be heard and to be represented by legal counsel of their
choice. Also, parties and witnesses who appear before the Court should be
protected and not face retribution.
* African governments to provide the essential resources, including
funding to the Court once established. African governments should also
provide adequate resources to the African Commission and ensure that a
practical framework be instituted that effectively enable the Court and
the African Commission to establish a constructive and complementary
relationship.
* African governments to take into account other practical requirements to
achieve an effective and efficient Court, including by ensuring that the
Court is located in a place that will meet its operational and
infrastructural needs.

Background

The Protocol to the African Charter on Human and Peoples' Rights
Establishing an African Court on Human and Peoples' Rights was adopted by
the Assembly of Heads of State and Government of the Organization of
African Unity (OAU), now the African Union, at its 34th Ordinary Session,
June 1998, in Ouagadougou, Burkina-Faso. The African Court's principal
function is to consider allegations of violations of the human rights,
including civil and political rights and economic, social and cultural
rights guaranteed under the African Charter, the Protocol and relevant
human rights instruments. Only the following entities have the right of
direct access to the Court: the African Commission; the state party which
has lodged a complaint to the Commission; the state party against which a
complaint has been lodged at the Commission; the state whose citizen is a
victim of human rights violations; and African Intergovernmental
Organizations. Individuals and NGOs can only have direct access to the
Court if a state party to the Protocol also makes a declaration accepting
the competence of the Court to receive such cases.

The African Court will operate side by side with the African Commission,
and not replace the Commission. Indeed, as the Preamble to the Protocol
makes clear, "the attainment of the objectives of the African Charter on
Human and Peoples' Rights requires the establishment of an African Court
on Human and Peoples' Rights to complement and reinforce the functions of
the African Commission on Human and Peoples' Rights."

The African Charter which came into force on 21 October 1986 has been
ratified by all the OAU (AU) member states. The only mechanism created
under the Charter to supervise state parties' compliance is the African
Commission. While the African Commission has an elaborate promotional
mandate under the African Charter, it does not possess sufficient
protective powers. In fact, neither the Charter nor the Commission
provides for enforceable remedies, or a mechanism for encouraging and
tracking state compliance with decisions that the Commission makes.
Despite some positive development in the Commission's individual complaint
mechanism, the decisions it renders are non-binding, and still attract
little, if any, attention from governments of member states. For several
years Amnesty International has campaigned for ratification of the
Protocol and believes its entry into force is a significant development in
the protection of human rights in the continent. Amnesty International
will continue to push for a regional wide ratification of the Protocol and
for the establishment of a fully effective and efficient Court. Since the
success of the African Court will to a large extent depend upon the
operational efficiency of the African Commission, Amnesty International
will continue to seek for the strengthening of the Commission as well.

PRESS RELEASE
The National Society for Human Rights (NSHR) in Namibia

AFRICAN COURT WELCOME

The National Society for Human Rights (NSHR) in Namibia
has welcomed the establishment of the African Court on Human and People's Rights as a significant instrument to end serious and rampant human rights violations as well as impunity on the continent. The court came into force on Sunday, January 25 2004 after more than five years of waiting to get the necessary 15 ratifications.

The 15 Members States of the newly instituted African Union (AU) that have ratified the protocol on the establishment of the court are Algeria, Burkina Faso, Burundi, Gambia, Libya, Lesotho, Mali, Mauritania, Rwanda, South Africa, Senegal, Togo, Uganda, Ivory Coast and the Comoro Islands.

“Our own Namibia has yet to ratify this important tool and we urge Parliament to do so as soon as possible”, said NSHR Head Paralegal Officer, Petrus Festus, this afternoon.

The principal of objective of the Court is to protect and uphold basic human rights as enumerated in the African Charter on Human and Peoples’ Rights. AU Members States have committed themselves to respect for human rights of all, good governance and respect for the rule of law.

“Hence, we are keeping our fingers crossed in the hope that this court will fulfill its mandate and become a judicial forum for all victims of human rights violations on the continent. However, for this to happen it isconditio sine qua nonthat this court be truly independent and impartial in discharging its functions. To this effect, there are many persons in Africa and beyond who are competent in the field and are of international repute so as to make the court a genuine instrument for the defense and protection of victims of continuing widespread human rights abuses. Also, for it to live up to its name, this court must be directly accessible to all humans and peoples, including both individuals and groups claiming to be victims of human rights abuses,”said Phil ya Nangoloh, NSHR executive director.

For additional comment, please call Phil ya Nangoloh or Petrus Festus at Tel: +264 61 236 183 or +264 61 253 447 (during office hours), or Mobiles: +264 811 299 886 (for Phil) and +264 812 434 162 (for Petrus)

PRESS RELEASE

25TH JANUARY 2004 :
A TURNING POINT IN THE HISTORY OF THE AFRICAN SYSTEM FOR THE PROTECTION OF HUMAN AND PEOPLES’ RIGHTS

The Protocol to the African Charter on Human and Peoples’ Rights establishing an African Court on Human and Peoples’ Rights, which was adopted in Ouagadougou, Burkina Faso, in 1998 by the Conference of the Heads of State and Government of the Organization of African Unity, currently African Union, has just received a new impetus.

On 26th December 2003, Comoros Islands deposited their instrument of ratification of this Protocol. Pursuant to the provisions of its Article 34.3, the Protocol shall enter into force 30 days following the deposit of the 15th instrument of ratification.

Thus, 25th January 2004 will mark the coming into force of the aforementioned Protocol.

There is no doubt that the long awaited establishment of the African Court on Human and Peoples’ Rights will strengthen the existing mechanism for the protection of human and peoples’ rights in Africa.
The African Commission is pleased with this memorable advent and hails the significant contribution it has received from the States Parties and the community of the defenders of human rights, who spared no efforts to move forward the process of formulation, adoption and ratification of this invaluable instrument.

The African Commission urges Member States of the African Union and all its partners to take necessary steps to facilitate the setting up and effective functioning of the Court.

The African Commission on Human and Peoples’ Rights makes an urgent appeal to the States Parties that have not yet ratified the said Protocol to do so as expeditiously as possible in order to give this important human rights protection instrument a really pan African scope.

Banjul, 23rd January 2004