Faculty Scholarship

The Constitutive Act of the African Union, African Courts and the Protection of Human Rights: New Dispensation?

Joseph M. Isanga, Concordia University School of Law


During the process of setting up the African Union (AU) and the African Court of Human and Peoples’ Rights (ACH)—which is on course to being transformed into the African Court of Justice and Human Rights (ACJH)—the framers of these institutions’ constitutive instruments tried to learn from the best practices of the existing regional arrangements, such as the Inter-American and European human rights systems. Yet, more than ten years after the establishment of the AU, the organization continues to struggle with fully responding to human rights abuses in member states. Bogged down by technicalities, the ACH has not been able to tackle urgent human rights issues as it remains handicapped by instruments that do not allow it to proceed to the merits of most cases. The African Commission on Human and Peoples’ Rights (African Commission) remains largely insulated from the ACH because it has hardly taken advantage of the principle of complementarity with the latter. In the premises, this Article argues that on the whole, despite some notable achievements, the African human rights system remains inadequately equipped—from normative and procedural standpoints—to more effectively protect human rights, and that a number of radical, far-reaching reforms or amendments are imperative in order to present a more consistent, effective and comprehensive human rights protection regime. These reforms include, but are not limited to, the elimination of the requirement that states submit a separate declaration that allows individuals and non-governmental organizations (NGOs) access to the African courts, the merging of the African Commission with the ACH or ACJH, better financing of the African courts, expansion of the jurisdiction of an expanded African court, and amendments to the African Charter to provide for a better normative framework. Unless the African Union undertakes such radical changes, it will continue to engage in mere human rights rhetoric, which cannot constitute a genuinely new human rights dispensation or metamorphosis. [excerpt]