The Admissibility of Subregional Courts' Decisions before the African Commission or African Court

Author:Abdi Jibril Ali
Position:LLB (Haramaya University), LLM (University of Pretoria); Postgraduate Diploma (Åbo Akademi University)
Pages:241-272
SUMMARY

Some courts of Regional Economic Communities deal with human rights and they base their decisions on the African Charter on Human and Peoples’ Rights. Other subregional courts have directly or indirectly considered human rights matters. However, it is not clear whether the cases decided by subregional courts are admissible before the African Commission on Human and Peoples’ Rights or the African... (see full summary)

 
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T
HE
A
DMISSIBILITY OF
S
UBREGIONAL
C
OURTS
D
ECISIONS
BEFORE THE
A
FRICAN
C
OMMISSION
OR
A
FRICAN
C
OURT
Abdi Jibril Ali
Abstract
Some courts of Regional Economic Communities deal with human rights and
they base their decisions on the African Charter on Human and Peoples’
Rights. Other subregional courts have directly or indirectly considered human
rights matters. However, it is not clear whether the cases decided by
subregional courts are admissible before the African Commission on Human
and Peoples’ Rights or the African Court on Human and Peoples’ Rights.
Focusing on the Economic Community of West African States Court of Justice,
the East African Court of Justice, and the Southern African Development
Community Tribunal, I argue that the African Commission or the African Court
should not admit cases decided by subregional courts. First, accepting such
cases would overburden the African Commission and the African Court.
Second, the decisions of subregional courts are final according to the treaties
establishing them. Third, states should not be tried twice by international
institutions for the same violation. Fourth, decisions of subregional courts have
res judicata effect. Fifth, subregional courts are envisaged under Article 56(7)
of the African Charter. Finally, the African Court or the African Commission
can interpret the text of the African Charter to preclude the admissibility of
cases decided by subregional courts.
Key words
Admissibility, African Commission, African Court, subregional courts, res
judicata
DOI http://dx.doi.org/10.4314/mlr.v6i2.3
Acronyms and Abbreviations
RECs Regional Economic Communities
EAC East African Community
LLB (Haramaya University), LLM (University of Pretoria); Postgraduate Diploma
(Åbo Akademi University); Lecturer and Post-Graduate Programme Coordinator,
School of Law, Addis Ababa University; <abdeejibril@gmail.com>. The author is
very grateful to Professor Frans Viljoen and Assistant Professor Brooke I Glass-
O’Shea for their constructive comments. He also thanks the anonymous reviewers for
their comments. Any remaining errors are the author’s sole responsibility.
242
M
IZAN
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AW
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EVIEW
Vol. 6 No.2, December 2012
SADC Southern African Development Community
EACJ East African Court of Justice
ECOWAS
ICCPR
OP-CEDAW
Economic Community of West African States
International Covenant on Civil and Political Rights
Optional Protocol to the Convention on the Elimination of
Discrimination against Women
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Introduction
African states have established Regional Economic Communities (RECs) to
achieve increased trade and improved economic links.
1
RECs serve as the
building blocks for the economic integration of Africa.
2
While pursuing these
goals, they recognise the enhanced role of human rights, inter alia, as a means
to their economic development.
3
In the Algiers Declaration, African leaders
identified a political environment in which human rights are observed as a
precondition to economic growth.
4
They also recognised that conflict, one of the
obstacles to economic growth, may arise from the violation of human rights.
5
For these reasons and others, RECs are involved in human rights matters.
Treaties establishing the RECs recognise the promotion and protection of
human rights among their principles and different organs have been established
to achieve these objectives.
6
Some of these organs contribute to human rights
1 Frans Viljoen (2007), International Human Rights Law in Africa (Oxford: Oxford
University Press), p.495.
2 Art 88(1), Treaty Establishing the African Economic Community, adopted in 1991 in
Abuja, Nigeria and entered into force in 1994.
3 See Magdalena Sepúlveda et. al. (2004), Human Rights Reference Handbook (San
Jose: University for Peace), p.403; Oliver Christian Ruppel ‘Regional economic
communities and human rights in East and southern Africa’ in Anton Bösl & Joseph
Diescho (eds) (2009),Human Rights in Africa: Legal Perspectives on their Protection
and Promotion (Windhoek: Macmillan Education), p. 279. Respect for human rights
immensely contributes to economic development. See also Nneoma Nwogu (2007),
‘Regional integration as an instrument of human rights: Reconceptualizing ECOWAS,
Journal of Human Rights 345.
4 Declaration on the Political and Socio-economic Situation in Africa and the
Fundamental Changes Taking Place in the World (the Algiers Declaration), OAU Doc
AHG/Decl.1(XXVI), para 10 - 11.
5 Rachel Murray (2004), Human Rights in Africa: from the OAU to the African Union
(Cambridge: Cambridge university Press), p.126.
6 See Consolidated Text of the Treaty of the Southern African Development
Community (as Amended), art 4(c); Treaty Establishing the East African Community,
art 6(d); Treaty of ECOWAS, art 4(g); COMESA Treaty, art 6(e). These treaties were
reproduced in Solomon Ebobrah & Armand Tanoh (eds) (2010), Compendium of
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243
through setting standards.
7
Other organs of RECs such as subregional courts
can positively contribute to the protection of human rights. Subregional courts
are organs of RECs vested with judicial powers. Some of them have decided
human rights cases. Although it is advantageous to have as many institutions as
possible to enhance the promotion and protection of human rights, overlapping
judicial powers of organs raise concerns such as the possibility of divergent
conclusions on the same issues, duplication of efforts, and inefficient allocation
and use of scarce resources, particularly when different courts have jurisdiction
over the same case.
8
In Yogogombaye v Senegal, the African Court on Human and Peoples’
Rights (African Court) was confronted with issues that had already been raised
before the ECOWAS Community Court of Justice.
9
Such issues render the
discussion on admissibility of cases decided by subregional courts before the
African Court relevant. Although such a case has never been presented to the
African Commission on Human and Peoples’ Rights (African Commission), it is
important to discuss admissibility before it because the African Commission is
the main forum through which cases come to the African Court. So far, few
countries have made declarations under Article 34(6) of the African Court
Protocol and individuals or NGOs can bring cases to the African Court against
these states only. Cases against other states should come to the African Court
through the African Commission.
10
African Sub-Regional Human Rights Documents (Pretoria: Pretoria University Law
Press).
7 The supreme organs of the RECs adopt instruments that address human rights issues.
8 See Viljoen (2007), supra note 1, p. 501; Abdul Rahaman Lamin ‘African sub-
regional human rights courts: the ECOWAS Court of Justice, the SADC Tribunal and
the EAC Court of Justice in comparative perspective’ in John Akokpari & Daniel
Shea Zimbler (eds) (2008), Africa’s Human Rights Architecture (Fanele: Auckland
Park), p.239; Kithure Kindiki (2006) ‘The African Human Rights System:
Unnecessary Overlap or Useful Synergies?’ East African Journal of Peace and
Human Rights Vol. 12, p. 332.
9 Yogogombaye v Senegal (2009) AHRLR 315 (ACtHPR 2009). The case was brought
to the African Court to obtain suspension of proceedings instituted by Senegal in order
to charge, try and sentence Mr Hissein Habré, former Head of State of Chad who had
asylum in Senegal. The African Court declared the case inadmissible on the ground
that the applicant lacks standing. See also Hissein Habré v Republic of Senegal,
General Role No. ECW/CCJ/APP/07/08 Judgment No: ECW/CCJ/JUD/06/10, ruling
delivered on 18 November 2010. The same case was brought before the ECOWAS
Court of Justice on 6 October 2008 and was decided on 18 November 2010.
10 See African Commission on Human and Peoples’ Rights v the Great Socialist Libyan
People’s Arab Jamahiriya, Application No. 004/2011, ruling 2 September 2011. The
African Court rejected most cases on the ground that the respondent state did not
make declaration under art 34(6) of the African Court Protocol. See, for example,

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