Extraterritorial Enforcement of Human Rights

THE UNITED REPUBLIC OF TANZANIA
LS 110: HUMAN RIGHTS AND LEGAL AID
Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 1

CONTENT
THE EAST AFRICAN COURT OF JUSTICE [EACJ]
AND THE AFRICAN COURT ON HUMAN AND
PEOPLE’S RIGHTS [ACtHPR]:
 Composition, Legal status, Locus standi, Cause of

action and Jurisdiction.
And Procedure:
 in filing and prosecuting cases at EACJ and ACtHPR.

 For amicus at EACJ and ACtHPR
 For enforcement of Judgements

INSTRUCTION OBJECTIVES
To familiarize participants with the major

African (regional) human rights
enforcement mechanisms;
To provide a basic understanding of how

legal practitioners can use them in bringing
complaints.

QUESTIONS FOR CONSIDERATION
If later in your professional life you are

faced with a client alleging violations of his
or her rights under regional human rights
law, how would you respond?
Are you aware that regional law for the

protection of human rights could provide
guidance for solving the problem
concerned?
QUESTIONS FOR CONSIDERATION
Are you aware that the alleged victim might

ultimately bring his or her grievances to the
attention of the regional human rights courts or
tribunals?
Are you aware of any case(s) brought against

Tanzania before a regional organ on behalf of an
alleged victim of a human rights violation? If
so, what was the outcome of the case(s)?

Mr. Justice
GENERAL INTRODUCTION (Rtd) Robert
Vincent
Makaramba
REGIONAL INTERNATIONAL
COURTS (RICS) AND TRIBUNALS
SUBJECT MATTER DISTRIBUTION OF
ACTIVE INTERNATIONAL COURTS (ICS)
International Regional Economic Courts (IRECs) Court of Justice for the Common Market of Eastern and
Southern Africa (COMESA) (1998)
Court of Justice of the East African Community (EACJ)
(2001)
Southern African Development Community (SADC)
Tribunal (2005)
International Human Rights Courts (IHRCs) African Court on Human and Peoples’ Rights
(ACtPHR) (2006)
[SADC Tribunal can hear national appeals that can
involve human rights issues (abolished)
EACJ envisions adding a human rights jurisdiction in
the future
International Criminal Tribunals (ICTs) International Criminal Tribunal for Rwanda (ICTR)
(1994) & MICT- Special Mechanism at Arusha & The
Hague; ICTY
Special Court for Sierra Leone was a hybrid
international criminal tribunal
General Jurisdiction EACJ, SADC Tribunal (abolished)

THE FOUR ROLES OF INTERNATIONAL
COURTS (ICS)
International Law Enforcement

International Administrative
Review
International Constitutional
Review
International Dispute Settlement
INTERNATIONAL LAW ENFORCEMENT
The enforcement role involves ICs

reviewing the actions of states,
public bodies and in some cases
individuals to see if they cohere
with the requirements of
international law.

INTERNATIONAL LAW ENFORCEMENT
ICs primarily name a state practice

as legal or illegal, and secondarily
authorize remedies designed to
compensate victims and create costs
associated with illegal behavior
(international judicial oversight).

INTERNATIONAL ADMINISTRATIVE REVIEW
ICs with administrative review

authority hear challenges to the
decisions of administrative actors
in cases raised by individuals
whom the administration’s
decisions affect.

INTERNATIONAL ADMINISTRATIVE REVIEW
Depending on the standard of review, the

judge will be checking to make sure that
the administrative decision is faithful to
the law, that the administrative decision-
maker followed prescribed procedures,
and that the administrator had legally
defensible reasons for its decision.

INTERNATIONAL CONSTITUTIONAL REVIEW
Constitutional review authority is

the judicial authority to invalidate
laws and government acts on the
basis of a conflict with higher
order legal obligations.

INTERNATIONAL CONSTITUTIONAL REVIEW
In the international arena, the higher

order laws are usually the founding
treaties that “constitute”
supranational political systems and
they may also include basic rights
protections of member states.

INTERNATIONAL DISPUTE SETTLEMENT
International dispute settlement

via courts is the archetypical role
of ICs. Pretty much all
international treaties include
provisions for dispute settlement.

Usually the parties can choose non-

legalized dispute settlement (e.g.
arbitration, mediation, good offices), but a
specific body is named as final venue for
settling disputes regarding the agreement
(often the International Court of Justice or
a regional court).

International dispute settlement

can either be non-compulsory—
something that both parties must
agree to for the case to advance—
or compulsory.

Where ICs have compulsory

jurisdiction, dispute settlement can
become a tool used to enforce the
agreement and thus the IC’s dispute
settlement role can morph into an
enforcement role.

THE FOUR JUDICIAL ROLES DELEGATED TO ICS
International Courts Dispute Settlement Enforcement Role Administrative Constitutional

(Date created) Role Review Role Review Role
Court of Justice for
the Common
Market of Eastern X X X X
and Southern Africa
(COMESA) (1998)
East African
Community Court of
Justice (EACJ)
(2001)
African Court of
Peoples and X
Human Rights
(ACtPHR) (2005)

AFRICAN REGIONAL INTERNATIONAL COURTS,
TRIBUNALS, COMMISSIONS AND COMMITTEES
1. The East African Court of Justice [EACJ]

2. The African Court of Human And Peoples’
Rights [ACtHPR]
3. The African Commission for Human And
Peoples’ Rights [AComHPR]
4. The African Committee of Experts on the
Rights and Welfare of The Child
5. The Southern African Development
Committee Tribunal [SADC Tribunal]

THE EAST AFRICAN COURT OF JUSTICE
[EACJ]
Composition, Legal status, locus standi,
cause of action and Jurisdiction.
Procedure in filing and prosecuting cases.
Procedure for amicus
Procedure for enforcement of Judgements

CASE STUDY
 RASHID SALIM ADIY & 39,999 OTHERS v. THE ATTORNEY

GENERAL OF THE REVOLUTIONARY GOVERNMENT OF
ZANZIBAR & 2 OTHERSREFERENCE NO.9 OF 2016
Mr. Rashid Salim Adiy and 39,999 other persons (‘the

Applicants’) filed Reference Number 9 of 2016,
Rashid Salim Adiy & 39,999 Others vs The Attorney
General of the Revolutionary Government of Zanzibar
& 2 Others claiming inter alia that the purported
unification of the Republic of Tanganyika and the
Peoples Republic of Zanzibar to form the United
Republic of Tanzania is a nullity.

CASE STUDY
RASHID SALIM ADIY & 39,999

OTHERS v. THE ATTORNEY
GENERAL OF THE
REVOLUTIONARY
GOVERNMENT OF ZANZIBAR
& 2 OTHERS REFERENCE NO.9
OF 2016
CASE STUDY
Mr. Rashid Salim Adiy (“the First

Applicant”) is a natural person, and
describes himself as a resident of
Zanzibar, and a citizen of the United
Republic of Tanzania; while the 39,999
persons on whose behalf he brought the
Reference are similarly described as
residents of Zanzibar and citizens of the
United Republic of Tanzania.
CASE STUDY
First Instance Judgment: Verdict
For the reasons stated earlier in this ruling, we find and

hold that this Court does not have jurisdiction to
hear and determine the subject matter of the
Reference.
Further and in any event, it is also our finding that at

the time of filing the Reference, the same was time
barred. Accordingly, we hereby uphold both points of
law as raised by the Respondents.
CASE STUDY
On the question of costs, Rule 127(1) of the

Court's Rules of Procedure provides that 'costs
in any proceedings shall follow the event
unless the Court for good reasons otherwise
orders.'
In the instant case, misguided as the Reference

was in the circumstances, we are mindful that
it was brought in the public interest.
CASE STUDY
We accordingly exercise our

discretion under the said Rule
127(1) to order that each party
shall bear its own costs. It is so
ordered. [September 29, 2020].

CASE STUDY
APPLICATION NO. 05 OF 2019 (IN AN

INTENDED APPEAL), MEDIA COUNCIL OF
TANZANIA & 2 OTHERS v. THE ATTORNEY
GENERAL OF THE UNITED REPUBLIC OF
TANZANIA 9 th , June 2020
CONSOLIDATED APPLICATIONS NOs.3 AND 4

OF 2019 (IN AN INTENDED APPEAL), THE
MANAGING EDITOR MSETO & ANOTHER v.
THE ATTORNEY GENERAL OF THE UNITED
REPUBLIC OF TANZANIA [2 nd , June 2020].
CASE STUDY
In this regard, we must agree with

Counsel for the Applicant that, if the
Respondent had any good reason for
the delay in instituting the appeal,
then the Respondent cannot raise those
reasons in this Application under
review.

CASE STUDY
Having conceded that, the Respondent

did not institute the appeal in time, the
best the Respondent can do to remedy
that lapse, is to apply to Court to
extend time required for them to
institute the appeal. Rule 4 of the
Rules of this Court provides:

CASE STUDY
“...A Division of the Court may, for sufficient

reason, extend the time limited by these Rules or
by any decision of itself for the doing of any act
authorized or required by these Rules, whether
before or after the expiration of such time and
whether before or after the doing of the act,
and any reference in these Rules to any such
time shall be construed as a reference to such
time as so extended..."

CASE STUDY
However the Respondent, has filed

no such application for us to
consider so the reasons argued
before us for the delay in this
application are beside the point and
are irrelevant.

CASE STUDY
The Notice of Appeal dated and

lodged in this Court on the 11 th
April, 2019 is struck out with
costs awarded to the Applicant.
IT IS SO ORDERED

CASE STUDY
The above finding is sufficient for us

to dispose of this Application.
However, the Respondent has argued
to some length that, it has good
reasons why we should not strike out
the Notice of Appeal.

CASE STUDY
This Ruling arises from Application No 05

of 2019 filed by the Applicant under Rule
81 of the East African Court of Justice
(EACJ) Rules of Procedure, 2013
(hereinafter referred to as “the Rules of
this Court”) to strike out the Notice of
Appeal filed by the Respondent on the 11 th
April, 2019.

CASE STUDY
The Application, arises from the Decision of the

First Instance Division (hereinafter referred to as
“the Trial Court”) in Reference No. 02 of 2017
in which the Applicants challenged the
provisions of the Media Services Act as being in
violation of Articles 6 (d) and 7 (2) of the Treaty
for the Establishment of the East African
Community (hereinafter referred to as “the
Treaty”).

CASE STUDY
2. Judgment in Reference No 02 of

2017 was entered by the Trial Court in
favour of the Applicants. Being
dissatisfied with the said Decision, the
Respondents filed a Notice of Appeal
in this Court dated 11 th April, 2019.

CASE STUDY
At the Hearing of the Application, the

Applicants were represented by
Advocates Mr. Fulgence Massawe and
Mr. Jebra Kamole; and the Respondents
by Ms. Alesia Mubya Principal State
Attorney, Mr. Abubakar Mrisha,
Principal State Attorney and Mr.
Stanley Kalokola, State Attorney.
CASE STUDY
THE MANAGING EDITOR MSETO

& ANOTHER v. THE ATTORNEY
GENERAL OF THE UNITED
REPUBLIC OF TANZANIA
CONSOLIDATED APPLICATIONS
NOs. 3 AND 4 OF 2019 (IN AN
INTENDED APPEAL)

CASE STUDY
This Ruling arises from Consolidated Applications Nos

3 and 4 of 2019. Application No 3 was filed by the
Applicant under Rules 81 of the East African Court of
Justice (EACJ) Rules of Procedure, 2013 (hereinafter
referred to as “the Rules of this Court”) to strike out
Notice of Appeal filed by the Respondent on the 19 t h
July, 2018. Application No. 4 was filed by the
Respondent under Rule 84 (2) of the Rules of this Court
for extension of time to file an appeal out of time.

CASE STUDY
Both Applications arise from the Decision of the

First Instance Division (hereinafter referred to as
“the Trial Court”) in Reference No. 07 of 2016
which was filed under Articles 6 (d) and 7 (2) of
the Treaty for the Establishment of the East
African Community (hereinafter referred to as
“the Treaty”) challenging the Order issued by the
Minister of Information, Culture, Arts and
Sports of the United Republic of Tanzania to
suspend the publication of the Mseto Newspaper .

CASE STUDY
Judgment in Reference No. 07 of 2016

was entered by the Trial Court in
favour of the Applicants. Being
dissatisfied with the said Decision, the
Respondents filed a Notice of appeal
in this Court dated 19 th July, 2018.

CASE STUDY
The Application for Extension of Time

to lodge an appeal out of time is
denied and the Notice of Appeal dated
and lodged in this Court on the 19 th
July 2018 is struck out with costs to
the Applicant. IT IS SO ORDERED.

EACJ APPLICABLE LAWS
The Treaty for the Establishment of

the East African Community.
Chapter 8: Article 31 - The East

African Court of Justice.
Article 27: Jurisdiction of the Court.

EACJ APPLICABLE LAWS
The East African Court of Justice (EACJ)

Rules of Procedure, 2013 (repealed and
replaced) by the East African Court pf
Justice Rules of Procedure 2019, came
into force on 1 st day of February, 2020
vide Legal Notice - EAC/23/2020:
NOTICE OF COMMENCEMENT, Dated
this 15 th day of January, 2020

 THE EAST AFRICAN COURT OF JUSTICE RULES OF
PROCEDURE 2019
 https://
www.eacj.org/wp-content/uploads/2020/04/FINAL-PUBLISHED
-EACJ-RULES-OF-PROCEDURE-2019.pdf
 EAST AFRICAN COURT OF JUSTICE (EACJ) ADVOCATES

PRACTICING MANUAL
 https://
ealawsociety.org/wp-content/uploads/2020/09/SIMPLIFIED-MA
NUAL-FOR-THE-EAST-AFRICA-COURT-OF-JUSTICE.pdf

INTRODUCTION
The East African Court of Justice

(EACJ) hears cases on violations
of the rule of law, one of the
fundamental and operational
principles set out in the East
African Community Treaty.

INTRODUCTION
Established in 1999 and located

in Arusha, Tanzania, the court
hears cases from Burundi,
Kenya, Rwanda, Uganda,
Tanzania and now South Sudan
as well [DRC?!]
INTRODUCTION
EACJ:
Creature of statute: East African Community Treaty
Inaugurated November 2001, heard its first case in

2005.
 Has two chambers; First Instance Division (Trial

Court) and Appellate Division.
Sits in Arusha.
INTRODUCTION
Supra “judicial organ” of EAC.
Other organs of EAC:

 The Summit (Executive)
 The Council of Ministers (Executive)
 The Coordination Committee (Executive)
 The Sectoral Committees (Executive)
 The Legislative Assembly (Legislative), and
 The Secretariat (Executive)
EACJ COMPOSITION
Composition:
Maximum of 10 judges - First Instance Division and
5 Judges in Appellate Division
Registrar and
Supporting Staff .

EACJ COMPOSITION
 The Registrar is appointed by the Council of

Ministers.
The judges are appointed by the Summit, two

from each Partner State from among sitting
judges of the national courts of judicature or
from jurists of recognized competence who
qualify to hold such high office in the Partner
States.

INTRODUCTION
The Court may issue advisory

opinions regarding a question of law
arising from the Treaty.
Advisory opinions can be requested

by the Summit, the Council, or a
member state.
INTRODUCTION
Member states can bring cases

against each other and the EAC
institutions for breaches of the
Treaty, and the EAC Secretary-
General can bring similar cases
against member states.

LOCUS STANDI
The Court can be accessed directly by individuals.
The Treaty provides that, “any person who is

resident in a Partner State may refer for
determination by the Court, the legality of any Act,
regulation, directive, decision or action of a
Partner State or an institution of the Community on
the grounds that such Act, regulation, directive,
decision or action is unlawful or is an infringement
of the provisions of the Treaty” (Article 30).

LOCUS STANDI
Advocates must be entitled to

appear before a superior court
of a member state. Proceedings
before the Court consist of oral
hearings as well as written
pleadings.
LOCUS STANDI
There is no requirement that applications

exhaust domestic remedies before bringing
an application to the Court.
However, if an individual initiates a case

then they must lodge their complaint within
two months of the decision or action
complained of (Article 30(2) of the Treaty).

JURISDICTION
Adjudication and determination of disputes

arising from the Treaty are the major
functions of the Court.
The Treaty under Articles 27, 28, 29 and 30

sets out the jurisdiction of the Court to include
References by Partner States, References by
Secretary General and References by legal and
natural persons respectively.
JURISDICTION
Articles 27, 28, 29 and 30 -

References by:
 Partner States,
Secretary General, and
 Legal and natural persons.
EACJ JURISDICTION
Article 23 of the Treaty states that

the purpose of the Court is to
ensure the adherence to law in
the interpretation and
application of and compliance
with the Treaty.

EACJ JURISDICTION
Article 27 reiterates that the “Court shall initially

have jurisdiction over the interpretation and
application of this Treaty” and goes on to provide
that:
 “ The Court shall have such other original,

appellate human rights and other
jurisdiction as will be determined by this
Council at a suitable subsequent date.”
EACJ JURISDICTION
The Court primarily issues declarations as to

whether particular acts or pieces of legislation
infringe rights or provisions of the EAC
Treaty.
It has also recommended specific amendments

to legislation to bring it in conformity with the
Treaty, which also contemplates the Court
making financial awards.

EACJ JURISDICTION
The Court has not yet been given a human rights

jurisdiction. Fundamental and operational principles of
EAC in Articles 6 to 8 of the Treaty, include “good
governance including adherence to the principles of
democracy, the rule of law, accountability, transparency,
social justice, equal opportunities, gender equality, as
well as the recognition, promotion and protection of
human and peoples’ rights in accordance with the
provisions of the African Charter on Human and
Peoples’ Rights.”

EACJ JURISDICTION
Liberal construction:
Article 27(2) to the effect that the

said human rights jurisdiction was
suspended to a later date to be
determined by the Council.

EACJ JURISDICTION
Conservative / restrictive construction:
In order to exercise human rights

jurisdiction, the Court has to wait until
the Council of Ministers decides on a
date and concludes a protocol to that
effect.

EACJ JURISDICTION
Almost all cases that the Court has heard

under Article 6 (d) of the Treaty have a
bearing on human rights. E.g. Katabazi case
Katabazi case: Court would not abdicate its

responsibility of interpreting the Treaty,
much as it did not have human rights
jurisdiction per se.

EACJ JURISDICTION
The Court received its first

case in December 2005 and
issued a ruling in October 2006.
Cases are usually decided in
less than a year.

EACJ JURISDICTION
Many of these judgments concern the internal

workings of the East African Community.
However, in Katabazi v. Secretary General of
the EAC and Uganda, the court upheld a
complaint regarding violation of the rule of law,
and in doing so held that the mere fact that such
a complaint also raises human rights issues
does not exclude it from the jurisdiction of the
Court .

PROCEDURE IN FILING AND
PROSECUTING CASES AT EACJ
The Court translated its jurisdictions into

specific types of actions that an aggrieved
party may seek recourse through, namely:
applications,
references,
claims,
advisory opinions, and
arbitrations.
An application can be instituted by way

of Motion supported by an affidavit.
Hearing mainly inter-partes but can

hear ex-parte if irreparable injustice
may be occasioned and such order lasts
for 30 days

Cases in the First Instance Division begin
with the filing of a complaint before the
Court.
The person or institution filing the suit is

referred to as the Applicant or Claimant,
and the person or entity against whom the
case is filed is referred to as the
Respondent.
A claim or complaint should include:
(a) A Reference:
A Reference by a Partner State, the Secretary

General, or a legal or natural person (under
Articles 28, 29 and 30 of the Treaty) is instituted
by lodging in the Court a statement of reference.
See the Rules of Procedure for the contents.

(b) A Claim between the Community and its
Employees
A dispute between the Community and its

Employees under Article 31 of the Treaty is
instituted by presenting to the First Instance
Division a Statement of Claim.
See Rules of Procedure for contents.

 Filing Appeals in the Appellate Division
 Any person dissatisfied with a decision, order, or

judgment of the First Instance Division may as a
matter of right appeal to the Appellate Division and
the rules of procedure provide for all the necessary
requirements for instituting such an appeal.
 However, such a person may do so only if that

decision/judgment involves errors of law, lack of
jurisdiction or procedural irregularity.
Litigation Process
(a) Approachability of the Court:
EACJ can be accessed by legal and

natural persons without necessarily
passing through their respective
governments or exhausting local remedies
first. [See Article 30 of the Treaty]
Where a party wishes to access the

Court through an advocate, such
advocate is required to file with the
Registrar a certificate that he or she is
entitled to appear before a superior
court of a Partner State.

(b) Pleadings:
Pleadings must comply with the rules

requirements, e.g. to state in concise
form particulars of his claim including
the order sought by the applicant and the
forms have been provided. See rules 11,
25, 26, 32, 33, and 35.
Sessions and sittings of the Court are

conducted at its seat in Arusha. However,
the Court can still conduct sessions
outside Arusha (did so at the Commercial
Court in Dar es Salaam in 2014).
Sub registries have been established in

each capital city of a Partner State.
(d) Delay of Justice
Delay of justice through ex-parte

orders, adjournments, and
judgment on notice have been
addressed in its rules of
procedure.
(e) Witnesses
It is the responsibility of a party to bring

witnesses in support of his/her claim or
defence and the said party will also be
responsible for the witnesses’ expenses but
the Court can only upon request facilitate
the summoning of that particular witness
by issuing a summons.
Since some cases with assistance

of the Court, may be amicably
settled without necessarily going
through trial, the Court made a
provision for Court Annexed
Mediation in its Rules of
Procedure.
Arbitration
The Court can constitute itself into an

arbitration tribunal in exercise of its
arbitration power under Article 32of the
Treaty.
 The Court has formulated Rules of

Arbitration. An area effectively utilized.
PROCEDURE FOR AMICUS AT EACJ
 Amicus curiae procedure under Rule 60 of the

Rules of Court. 2019:
(1) At any stage of the proceedings, the Court

may, if it considers it desirable for the proper
determination of the case, invite or grant
leave to a Partner State, organization or person
to submit in writing any observation on any
issue that the Court deems appropriate.

PROCEDURE FOR AMICUS AT EACJ
(2) For the purposes of sub-rule(1),

leave to appear as amicus curiae may
be granted by the President or
Principal Judge, as the case may be
upon request in writing detailing
therein that person’s interest in the
matter.

P RO C E DURE FO R E N FO RC E M E N T OF E AC J J UD GE M E N T S
Court judgments are binding, although

they can be appealed to the Appeals
Chamber of the Court.
Article 38(3) requires member states and

the EAC Council to take immediately all
measures necessary to implement a
Court judgment .
Any award which imposes a

financial damages obligation will
be enforced through civil
procedure rules of the member
state where the judgment is
enforced.

Article 39 also allows the Court to

make binding interim orders.
There are no procedures to sanction

a party that fails to implement a
judgment against it.

PROCEDURE FOR ENFORCEMENT OF EACJ
JUDGEMENTS
 Costs and Fees
 Usually costs follow the event unless the Court for

good reasons orders otherwise.
 In EACJ if it appears that costs were incurred

improperly or without reasonable cause by reason of
any misconduct or default of the party and or
advocate, the Court may call on the advocate by whom
such costs had been incurred to show cause why such
costs should not be borne by the advocate personally .
PROCEDURE FOR ENFORCEMENT OF EACJ
JUDGEMENTS
The Court does not have the

execution machinery of its own
but it relies on the laws governing
execution of Court Decrees in a
respective Partner State where
execution is to be carried out.

THE AFRICAN COURT
ON HUMAN AND
PEOPLES’ RIGHTS
(ACTHPR)

THE AFRICAN COURT ON HUMAN AND
PEOPLES’ RIGHTS (ACTHPR)
 Composition, Legal status, Locus Standi, Cause of
Action and Jurisdiction.
 Procedure in filing and prosecuting cases at ACtHPR.
 Procedure for amicus curiae at ACtHPR.
 Procedure for enforcement of its Judgments.
 CONCLUSION

THE MAJOR AFRICAN HUMAN RIGHTS INSTRUMENTS
AND THEIR IMPLEMENTATION MECHANISMS
 African Regional Human Rights Treaties:
 The African Charter on Human and

Peoples’ Rights (The Banjul Charter)
 Protocol to the African Charter on Human

and Peoples’ Rights on the Rights of
Women in Africa (The Maputo Protocol)
THE MAJOR AFRICAN HUMAN RIGHTS INSTRUMENTS
AND THEIR IMPLEMENTATION MECHANISMS
 Protocol to the African Charter on

Human and Peoples’ Rights on the
Rights of Persons with Disabilities in
Africa (The Disability Protocol)
 African Charter on the Rights and

Welfare of the Child (The ACRWC)

AFRICAN REGIONAL HUMAN RIGHTS
IMPLEMENTATION MECHANISMS
The African Union (AU) formerly the

Organisation of African Unity (OAU))
adopts human rights treaties and
protocols .
The African Commission on Human

and Peoples’ Rights (AComHPR)
Special Mechanisms - Subsidiary special

mechanisms, including Special
Rapporteurs, Committees, and Working
Groups.
African Committee of Experts on the

Rights and Welfare of the Child
(ACERWC)
The African Court on Human and

Peoples’ Rights (African Court)
(ACtHPR)
The Protocol on Amendments to the

Protocol of the ACtHPR Statute (The
Malabo Protocol) (2014)
Proposed merge of existing

ACtHPR with the African Court
of Justice (ACJ) to create the
African Court of Justice and
Human Rights (ACtJHR).

THE AFRICAN COURT ON HUMAN AND PEOPLE’S
RIGHTS (ACTHPR) (THE AFRICAN COURT)
 Established through a Protocol to the African Charter

– the Protocol on the Establishment of an African
Court on Human and Peoples’ Rights (Art.1)
 Adopted in Ouagadougou, Burkina Faso, on 9 t h June

1998. Entered into force on 25 t h January 2004.
 Established in order to complement the protective

mandate of the Commission. Its decisions are final
and binding on state parties to the protocol.

LEGAL STATUS OF THE COURT
The “African Court” is a continental

supranational judicial body that delivers
binding judgments on compliance with the
African Charter.
See article by Adamantia Rachovitsa, “On New

‘Judicial Animals’: The Curious Case of an
African Court with Material Jurisdiction of a
Global Scope”, Human Rights Law Review,
2019, 19, 255–289 doi: 10.1093/hrlr/ngz010
COMPOSITION OF THE COURT
The Court consists of 11 judges.
The Judges are elected by AU Assembly from

a list of candidates nominated by their
respective states members of the AU, in their
individual capacities, from among African
jurists of proven integrity and of recognized
practical, judicial or academic competence
and experience in the field of human rights.
The Judges are elected for a six year term,

renewable once.
Not two serving judges shall be nationals of the
same state.
Due consideration is also given to gender and
geographical representation.
Only the President of the Court holds office on
full time basis.
The other 10 judges work part-time.
The Judges of the Court elect a President and Vice

President of the Court who serve a two year term. They
can be re-elected only once.
The President of the work resides and works on a full-

time basis at the seat of the Court, while the other ten
(10) Judges work on a part-time basis.
The President is assisted by a Registrar who performs

registry, managerial and administrative functions of the
Court.
The first judges of the Court were sworn

in on 1 st July 2005.
The Court officially started its operations

in Addis Ababa, Ethiopia in November
2006, and in August 2007 it moved to its
seat in Arusha, the United Republic of
Tanzania.
JURISDICTION OF THE COURT
The Court’s jurisdiction applies only to states that

have ratified the Court’s Protocol.
The Court may entertain cases and disputes

concerning the interpretation and application of the
African Charter, the Court’s Protocol and any other
human rights treaty ratified by the state
concerned.
Specifically, the Court has two types of jurisdiction:

contentious and advisory.
The jurisdiction ratione materiae of the

African Court on Human and Peoples’
Rights (ACtHPR).
The African Court enjoys a distinctive

contentious jurisdiction which extends to
the interpretation and application of any
other relevant human rights instrument
ratified by the States concerned.
Argument:
If the Court extends its jurisdiction

over treaties other than the African
Charter on Human and Peoples’ Rights,
this will lead to jurisprudential chaos
and will undermine the formation of
the African corpus juris.
Article 3(1) of the Protocol to the

African Charter on Human and
Peoples’ Rights on the
Establishment of the African Court
on Human and Peoples’ Rights
(‘Protocol to the ACHPR’) reads:
“The jurisdiction of the Court shall extend

to all cases and disputes submitted to it
concerning the interpretation and
application of the Charter, this Protocol
and any other relevant Human Rights
instrument ratified by the States
concerned.”
[9 June 1998, OAU/LEG/EXP/AFCHPRIPROT(III)]

Article 7 of the Protocol to the ACHPR

(sources of law) reads in identical terms:
“The Court shall apply the provisions of
the Charter and any other relevant human
rights instruments ratified by the States
concerned.”
Its mandate therefore extends

to the interpretation and
application of any other relevant
human rights instrument ratified
by the States concerned.
“The ACtHPR deviates from the

‘prototype’ of the jurisdiction of a
human rights court/body. Its striking
features set it apart also from most
international courts,5 arguably
qualifying it as a new ‘judicial animal’
that introduces a variance in ‘judicial
genome mapping’”
Alter, Karen J., "The Multiple Roles of

International Courts and Tribunals:
Enforcement, Dispute Settlement,
Constitutional and Administrative Review"
(2012). Faculty Working Papers. Paper
212.
@ http://
scholarlycommons.law.northwestern.edu/faculty
workingpapers/212
A list of all judgments

of the ACtHPR is
available at:
www.african-court.org
Allowing complaints of violations of a variety of

human rights treaties to be brought before the Court
will lead to ‘jurisprudential chaos.’
A. The Anxiety of Forum Shopping
ACtHPR, Tanganyika Law Society and Legal and

Human Rights Centre and Reverend Christopher R.
Mtikila v United Republic of Tanzania Application
Nos 009 and 011/2011, 14 June 2013 – UDHR not a
treaty.
ACtHPR, Frank David Omary and Others v

The United Republic of Tanzania
Application No 001/2012, 28 March 2014 –
ACtHPR, Anudo Ochieng Anudo v United

Republic of Tanzania Application No
012/2015, 22 March 2018 - deprivation of
citizenship violated art. 15(2) of UDHR.
B. The Anxiety of Monitoring Other Human

Rights Treaties
In Anudo Ochieng Anudo, Tanzania was found to have

arbitrarily expelled the applicant in violation of Article
7 of the Charter and Article 14 of the ICCPR.
Tanzania’s systematic failure to protect various aspects

of the right to a fair trial led to a violation of Article 7
of the ACHPR and Article 14 of the ICCPR.
Is there a possibility for a regional international

court to monitor UN or other global treaties?
See Tanganyika Law Society and Legal and

Human Rights Centre and Reverend Christopher
R. Mtikila v United Republic of Tanzania, supra
n 27 at Separate Opinion of Vice-President
Fatsah Ouguergouz, para 16;
C. The Anxiety of Threatening African

Human Rights Law
ACtHPR, Association Pour le Progrès et la

Défence des Droits des Femmes Maliennes
(APDF) and The Institute for Human Rights and
Development in Africa v Republic of Mali
Application No 046/2016, 11 May 2018 at paras
9, 95, 125, 135.
The Court examined and decided alleged

violations of other treaties on human rights
without bringing the ACHPR into play.
It is the first case in which the Court decided a

complaint strictly on the basis of other treaties
on human rights without implicating the Charter.
In this instance, the Court found Mali in

breach of its obligations under CEDAW, the
Maputo Protocol and the African Charter on
the Rights and Welfare of the Child, without
making any effort propio motu to identify
relevant provisions of the Charter or to
link the Charter with the facts of the case
and the applicant’s submissions.
The Court may also render advisory

opinion on any matter within its
jurisdiction.
The advisory opinion of the Court may be

requested by the AU, member states of
the AU, AU organs and any African
organization recognized by the AU.
The Court is also empowered to

promote amicable settlement of
cases pending before it.
The Court can also interpret its

own judgment.
The temporal jurisdiction of the Court

extends to the time the Court Protocol entered
into force in respect of a particular state
except in cases of continuing violations.
The principle of continuing violation was

earlier endorsed by the African Commission
in Lawyers for Human Rights v Swaziland.
Communication 414/12-Lawyers for

Human Rights (Swaziland) v The
Kingdom of Swaziland
Available at https://
www.achpr.org/public/Document/file/E
nglish/achpr14eos_decis_414_12_swaz
iland.pdf
Lawyers for Human Rights

(Swaziland) v The Kingdom of
Swaziland
In Free Legal Assistance Group and

Others v Zaire Communication 25/89,
47/90, the Commission held that the
requirement to exhaust local remedies
should not apply literally where it is
impracticable or undesirable for the
Complainant to seize the local courts.
See also a discussion the doctrine of

continuing violation in “Continuing
Violations Doctrine,” Kyle Graham,
Santa Clara University School of Law,
(2007) at
https://digitalcommons.law.scu.edu/f
acpubs/21
/
 The doctrine of continuing violation

Badner vs. Banque Paribas 114 F.
Sup. 2d. 117, 134-35 (E.D.N.Y) 2000
Ledbetter v. Goodyear Tire &
Rubber Co.127 S. Ct.2162 (2007)
LOCUS STANDI BEFORE THE COURT
The Court may receive cases

filed by the African Commission
of Human and Peoples’ Rights,
State parties to the Court’s
Protocol, and African Inter-
governmental Organizations.
LOCUS STANDI BEFORE THE COURT
NGOs with observer status before the

African Commission and individuals can
also institute cases directly before the
Court as long as the state against which
they are complaining has deposited the
Article 34(6) declaration recognizing the
jurisdiction of the Court to accept cases
from individuals and NGOs.
WHO IS ENTITLED TO MAKE
SUBMISSIONS?
A submission can only be made in terms of Rule 33 of
the Rules, in accordance with Article 5 of the Protocol
as read with Article 34(6) by:
The Commission
State party before the Commission (either as Applicant

or Respondent)
State party whose citizen is a victim of a human rights

violation
CAUSE OF ACTION
African Intergovernmental Organization
An individual or NGO in terms of Article

34(6) of the Protocol
A State Party with an interest in a case

may apply to be allowed to join in,
according to Rule 53 of the Rules.
CAUSE OF ACTION
Admissibility criteria for cases brought

before the Court
Art 56 of the Charter lay down seven

admissibility requirements.
What are the seven admissibility

criteria? (Class Discussion)
CAUSE OF ACTION
Art 56 of the Charter lay down

seven admissibility requirements
cummulatively which must all be
met before a complaint can be
lodged with the
Court/Commission.
CAUSE OF ACTION
See Admissibility of complaints

before the African Court:
PRACTICAL GUIDE
Available at https://
www.refworld.org/pdfid/577cd89d
4.pdf
CAUSE OF ACTION
Admissibility Requirements
Art. 56(1): INDICATE THE AUTHORS
Art. 56(2): JURISDICTION
Art. 56(3):NON-INSULTING LANGUAGE
Art. 56(4): EVIDENCE OTHER THAN SIMPLY NEWS
 SOURCES
Art. 56(5):EXHAUSTION OF DOMESTIC REMEDIES
Art. 56(6):TIMELINESS
Art. 56(7): NO CONFLICTING SETTLEMENTS
CAUSE OF ACTION
The African Charter has no reasonable

period within which Complaints must be
submitted after the exhaustion of local
remedies.
Under the Inter-American Commission and

Court and the European Court, six months
seem to be the usual standard.
CAUSE OF ACTION
 In Michael Mujuru v Zimbabwe

Communication 308/05(2008) 25th
Activity Report, ACHPR. Para 109, where
a complaint was filed 22 months after
complainant fled Zimbabwe, no convincing
reason was put forth to explain such
delay.the Commission considered the
period to be unreasonable.
CAUSE OF ACTION
A case may be submitted to the Court:

Indirectly by the Commission;
Or directly where a State has made a

declaration under Articles 5(3) and
34(6) of the Protocol
CAUSE OF ACTION
 Submissions directly to the African

Court should address both the
admissibility and the merits of the case
in question, in compliance with
Article 56 of the Charter, as per
Article 6 of the Protocol and Rules 34
and 40 of the African Court’s Rules of
Procedure.
ADMISSIBILIT Y CRITERIA
Art.6 and 34(6) of the Protocol stipulates that, in

addition to the seven admissibility
requirements under Art. 56 of the Charter,
cases brought directly before the Court by
individuals and NGOs are admissible only when
the state against which the complaint is
brought has made a declaration under Art.
5(3) of the Court’s Protocol accepting the
competence of the court to receive such
complaints.
Nine (9) out of the 30 African states that ratified

the Protocol, issued declarations allowing for
individual applications; Algeria, Benin,
Burkina Faso, Cote d’Ivoire, The Gambia,
Ghana, Mali, Malawi, Rwanda, Tanzania and
Republic of Tunisia.
Rwanda and Tanzania withdrew their

declarations.
Discussion Point:
What are the legal ramifications

for Tanzania of withdrawal of its
declaration allowing individual and
NNGO applications to the African
Court?
CASE FILING AND PROSECUTING
PROCEDURE
 The Amended Rules of Procedure, 2020
TRANSFER OF CASES TO THE

COMMISSION (RULE 38(2)) - requires
the registrar to simply inform Applicants of
the Court's lack of jurisdiction, and may
advise them to approach the Commission.
PROCEDURE
COMMENCEMENT OF PROCEEDINGS (RULE
40(5) – where Applicants are unable to deliver
their Applications to the Court for some reason,
they can send advance certified copies via
electronic means, depending on when they can
deliver the original Application to the registry
before the date set by the Court.
PROCEDURE
CONTENTS OF AN APPLICATION IN
CONTENTIOUS CASES (RULE 41)
Require a comprehensive list of the

contents of Applications, including
personal and contact information, or details
of incorporation, where an Applicant is a
juristic person.
PROCEDURE
Require that documents and copies of laws

and judgments referred to in Applications
must be attached in a chronological
manner, or in the sequence mentioned in
the Application - to show that Applicants
have exhausted local remedies.
PROCEDURE
TIME LIMIT FOR PLEADINGS (RULE 44)
Respondent States now have 90 (not 60) days,

while an Applicant has 45 days to file its
response, if any.
Provide for time within which Applicants has to

file their Reply to the Respondent State's
Response.
PROCEDURE
CLOSE OF, AND AMENDMENT OF

PLEADINGS (RULES 46,47)
The time within which written pleadings

are deemed to be closed is when an
Applicant has submitted his/her Reply to
the Respondent State's Response.
PROCEDURE
CLOSE OF, AND AMENDMENT OF

PLEADINGS (RULES 46,47)
An Applicant is deemed to have elected

not to file a reply if he/she fails to do so
within 45 days, and the Court may no
longer be required to follow up for a reply.
PROCEDURE
 JUDGMENT IN DEFAULT (RULE 63)

 Safeguards for defaulting parties who may
apply to set aside the default judgment
upon good cause, provided the application
to set aside is filed within one year of the
default judgment, and of course after due
notice to the other party
PROCEDURE
 PILOT JUDGMENT PROCEDURE (RULE

66) - Pilot Judgment Procedure
 “Pilot judgment”, "judgment of the Court
that deals with a group of similar cases
which arise from identical causes of
action or problems of a systematic or
structural nature."
PROCEDURE
 The Pilot Judgment Procedure allows

the Court on its own motion, or upon
application, to initiate the procedure,
and adopt a single remedial measure
with respect to all similar cases against
the same Respondent.
PROCEDURE
 The Rules require the Court to seek the

prior consent of parties involved before
initiating the procedure, and after
considering a report from the Registrar on
specific Applications pending before it,
including the possibility of an amicable
settlement .
PROCEDURE
 Where the procedure fails because the

parties could not reach an amicable
settlement or where the Respondent State
fails to comply with the operative part of
the pilot judgment, the Court may proceed
with the individual cases which had been
adjourned, as if no judgment had been
given in the matter.
PROCEDURE
 FORCE MAJEURE, INHERENT POWER OF
COURT (RULE 89, 90)
 The Rules allow the Court to derogate from any

provisions of the Rules, in case of occurrences
which are beyond human control, and which
make strict compliance with the Rules or
procedures of the Court impossible.
PROCEDURE
 FORCE MAJEURE, INHERENT POWER

OF COURT (RULE 89, 90)
 The Rules also recognize the inherent

powers of the Court to adopt any procedure
or decision geared towards meeting the
ends of justice.
PROCEDURE
In accordance with Rule 19 of the Rules of
Court (the Rules), the Court adopted Practice
Directions as a guide to potential litigants.
All submissions and communications must be

submitted at the seat of the Court, Arusha (Art.
24 & 25 of the Protocol) either by post, email,
fax or courier.
PROCEDURE
All submissions, communications,

and cases are to be directed to the
Registrar (the Office): P.O. Box
5274 Arusha; fax: +255-732-97 95
03; email:
registry@african-court.org
PROCEDURE
Submissions must be in writing

and only one copy of the claim
is required by the Rules to be
submitted to the registry.
PROCEDURE
This copy must be in one of the official
languages of the Court, signed by the
applicant or representative, give the
details of the applicant and respondent
and specify the alleged violations and
order sought, as well as offer proof of
exhaustion of local remedies (Rule 34).
PROCEDURE
Upon receipt of a
submission, the Registrar
shall establish authenticity
thereof (Rule 25), register it,
and acknowledge receipt
(Rule 36).
PROCEDURE
The Registrar shall make necessary

copies and translations (Rule 25) and
shall transmit a copy to the other party,
to the President and Members of the
Court, as well as to other organs as
may be necessary (Rule 35).
PROCEDURE
The Registrar shall require the

parties to file their pleadings in
terms of the Rules (Rule 25).
And when these are concluded,

will notify the parties of the date of
hearing.
PROCEDURE
No statue of limitations applies as to
when a matter can be brought before the
Court.
The Rules set no limits save for a

reasonable time from the date local
remedies were exhausted” unless the Court
set a date [Rule 40(6)].
PROCEDURE
The Protocol in Art.3 extends the

Court’s jurisdiction “to all cases
and disputes submitted to it.” This
leaves the Court with a very wide
discretion as to when it may
receive submissions.
PROCEDURE
However, once a case is submitted, the
Registrar shall “upon receipt” [Rule 25(2)
(c)] transmit copies of it to the judges of
the Court [Rule 35(1)] and all relevant
p[arties in terms of Rule 35(2).
Much as there is no exact time period laid
down, the effect of Rule 25(2)(c) is to
stress on immediacy.
PROCEDURE
The Respondent and any other interested
party on the other hand as detailed in Rule
35, has very specific time limits to comply
with.
Upon receipt of the application, they must
notify the Registrar of their
representatives’ names and addresses
within 30 days [Rule 35(4)].
PROCEDURE
And within 90 days (unless otherwise ordered by
the Court), the Respondent must file his reply to
the application [Rule 37].
The Applicant shall be entitled to receive

acknowledgment of his application (Rule 36),
and to his application being copied, translated
and transmitted to the persons/organs entitled to
receive the same (Rules 25 and 35).
PROCEDURE
The Applicant shall be entitled to be notified of
any request for the Applicant to file further
documents or pleadings (Rule 39 and 41), and to
be informed of the date of a hearing (Rule 42) or
other disposal of his application (Rule 38).
The Applicant shall be obliged to comply with

the rules and any requests or directions by the
Court (Rule 41).
PROCEDURE
The Respondent shall be entitled to receive any
application against the Respondent and to be
accorded the opportunity to reply (Rule 35 and
Rule 37).
The Respondent shall also be entitled to be
notified of the date of hearing or any request,
order or direction of the Court and shall be
expected to comply therewith (Rules 39 and 41).
PROCEDURE FOR AMICUS CURIAE AT
ACTHPR
Amicus curiae, Latin for “friend of the
court”, is a procedural instrument common
before most international courts, tribunals,
and several quasi-judicial bodies and
commissions, including the African Court
on Human and Peoples’ Rights (ACtHPR)
and the African Commission on Human and
Peoples’ Rights (ACommHPR).
ACTHPR
Before the African Court, amicus curiae is
a procedural instrument at the court’s full
discretion that allows an individual or
organization to submit solicited or
unsolicited information and/or legal
opinions on matters of international law
to the court (Practice Directions 42 and
45).
ACTHPR
While amici curiae are not required to

be neutral bystanders, the African
Court has disregarded partisan views
[Umuhoza v. Rwanda 2016, para 38].
African Commission amicus curiae is

dominated by openly partisan briefs.
ACTHPR
The main function of amici curiae in
international disputes settlement is to convey
information to the deciding body to assist it in
rendering a fully informed decision of high
legal quality.
Amicus curiae often convey information and

perspectives the adjudicating institution may
otherwise not access.
ACTHPR
 Practice Directions 42-46 address amicus curiae
participation by establishing guidelines for participation
and the amici’s relationship to the Court and the parties .
 The Practice Directions stipulate:

Request to act as amicus curiae (Class Discussion)
 PD 42:
 PD 43:
 PD 44:
 PD 45:
 PD 46:
ACTHPR
The Practice Directions presupposed the
Court’s authority to admit amici curiae,
which may be anchored on the authority in
the Court’s evidentiary rules under
Article 26(2) of the Protocol which
stipulates that the Court “may receive
written and oral evidenced, including
expert testimony.”
ACTHPR
Rule 45 of the Rules of Court

elaborates Art. 26 thus: (Class
Discussion)
ACTHPR
The authority to receive amici curiae can
be regarded as implied in the ACtHPR’s
authority to devise its own Rules of
procedure in Article 8 and 33 of the
Protocol or, for legal submissions the
principle of jura novit curia – the court
examines the case under all relevant legal
perspectives and allows it to inform itself
on the relevant law from available sources.
ACTHPR
Amici curiae may be made by an

individual or organization (Practice
Directions 42, 45).
The term “organization” is not defined,

but it is broad to encompass
international organizations and
NGOs. (See Anudo v Tanzania case).
ACTHPR
Unsolicited submissions are subject to a request
for leave procedure (Practice Direction 42).
There are no forma guidelines for requests.
The sole, substantive requirement for requests

for leave is that the applicant shall specify “…
the contribution they would like to make with
regard to the matter.”
PROCEDURE FOR AMICUS CURIAE AT ACTHPR
At minimum, this requires that

submissions are relevant to the case at
issue and fall within the scope of the
court’s jurisdiction for it to be able to
consider them (Practice Direction 45
for solicited amicus curiae).
The ACtHPR has full discretion over its

decision to admit amici curiae (Practice
Direction 43).
However, the Court must weigh the potential

benefits of amicus curiae participation with
possible negative effects, particularly on the
parties’ due process rights (Umuhoza v Rwanda).
ACTHPR
Successful applicants are notified by the
Registrar and furnished with the
application and case pleadings “relevant to
the matter for which the request for amicus
curiae has been made” (Practice Direction
44). There are no formal or substantive
limitations regarding the length, form, or
language of submissions.
ACTHPR
The Court maintains flexibility as submissions
both oral and written may be permitted at any
stage of the proceedings (see Konate v Burkina
Faso).
The parties assume an ancillary role in regard of

the participation of amici curiae. According to
Practice Direction 46, they are informed of
briefs and receive copies (Anudo v Tanzania
case, para 25.
ACTHPR
The practice directions do not

extend to them a right to veto
participation of an amicus curiae –
in Umuhoza v Rwanda case an
objection against the admission of
an amicus curiae was rejected.
An applicant cannot bring a case and

at the same time apply for leave to
make amicus curiae submissions.
See Request for Advisory Opinion by

the Socio-Economic Rights and
Accountability Project (SERAP), para
17,
AMICUS CURIAE PROCEDURE AT AFRICAN
COMMISSION FOR HUMAN AND PEOPLES’ RIGHTS
The Legal Framework
Communications Proceedings – 2010

Rules of Procedure, Rule 99 (16)
State Report Proceedings – Rule 74(2) and

(3) of Rules of Procedure
ACTHPR
Amici curiae are subject to judicial

discretion and obtain no formal status in
the proceedings, including formal
rights.
They are typically driven by a certain

interest in the case and are usually
partial.
AMICUS CURIAE PROCEDURE AT AFRICAN
COMMISSION FOR HUMAN AND PEOPLES’ RIGHTS
African Court on Human and People’s

Rights, http://en.african-court.org/
International Justice Resource Center,

Advocacy before the African Human Rights
System: A Manual for Attorneys and
Advocates:
http://www.ijrcenter.org/wp-content/uploads
/2016/11/Advocacy-before-the-African-Hum
an-Rights-System.pdf
PROCEDURE FOR ENFORCEMENT/IMPLEMENTATION
OF JUDGMENTS
The African Court in finalizing cases has made a range

of orders providing reparations for victims of the
violations found. These have included:
The payment of compensation (Zongo et al v, Burkina

Faso Ruling on Reparations para 111 – murder of a
journalist.
Release of an individual from detention (Alex Thomas v

Tanzania Interpretation of Judgment)
ENFORCEMENT/IMPLEMENTATION OF
JUDGMENTS
Guarantees of non-repetition such as
amendment of legislation Konate v Burkina
Faso para 176(8); AFDF and IHRDA vs Mali
para 135 (x)
Activity Report of the African Court 2018
Interim Report of the African Court on Non-

Compliance
ENFORCEMENT/IMPLEMENTATION OF
JUDGMENTS
Ensuring implementation is a
multi-faceted process, requiring
a multi-dimensional approach
which recognizes the specificity
and complexities of individual
cases.
Citation: V Lando ‘The domestic impact of the
decisions of the East African Court of Justice ’
(2018) 18 African Human Rights Law Journal 463-
485
http://
dx.doi.org/10.17159/1996-2096/2018/v18n2a2
https://
www.ahrlj.up.ac.za/images/ahrlj/2018/Chapter%20
Lando%202_2018.pdf
TASKS: ASSIGNMENT/GROUP
11.00-
DISCUSSION/FEEDBACK 12.30pm -
SESSION:
ESSENTIAL SKILLS &PRACTICAL ACTIVITIES
– PLEADINGS AND SUBMISSIONS
What kind of pleadings?

Applications and Submissions
Class activity: Drafting pleadings
Applications
Submissions
Application for leave to presnt Amicus
curiae submissions
Amicus curiae briefs
THANK YOU FOR YOUR End of
Instruction
ATTENTION!
AFRICAN COURT ON HUMAN AND
PEOPLES’ RIGHTS
RULES OF COURT 1 September 2020
https
://www.african-court.org/en/images/Basic%2
0Documents/Rules_of_Court_-_
25_September_2020.pdf
Entered into force on September 25, 2020

.
INSTRUCTION SESSION 4
– THE AFRICAN
COMMISSION ON
HUMAN AND PEOPLES’
RIGHTS
CONTACT
31 Bijilo Annex Layout, Kombo North

District
Western Region P.O. Box 673 Banjul
The Gambia
Tel: (220) 441 05 05, 441 05 06
Fax: (220) 441 05 04
E-mail: Au-Banjul@Africa-Union.Org
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TANZANIA BEFORE THE COMMISSION
Decisions on Communications
53/90 Albert T. Capitao Vs Tanzania, Session:15th
Ordinary Session. Date: April 18 to April 27, 1994
Final Decision
1. The Commission decides that local remedies have

not been exhausted as required by Article 56 of the
Charter and Rule 114 of the Rules of Procedure and
declares the communication inadmissible.
409/12 Luke Munyandu Tembani and

Benjamin John Freeth (represented by Norman
Tjombe) /Angola and Thirteen Others
 Angola Botswana Democratic Republic of

the Congo Lesotho Malawi Mauritania
Mozambique Namibia Seychelles South
Africa Eswatini Tanzania Zambia Zimbabwe.
The Complainant alleged that the First

Victim, a Zimbabwean, had acquired a
registered title to agricultural land in
1995, in which he invested considerable
resources on farming facilities, and that
he has now been deprived of his title and
forced to leave the same, consequent
upon an executive action by the
Government of Zimbabwe.
This matter was taken to the

Tribunal of the SADC (the Tribunal),
which made a ruling in favour of the
First Victim, upholding the latter’s
contention that the deprivation of his
land was in conflict with Zimbabwe’s
Treaty obligations and hence in
violation of international law.
The Complainant submitted that the judgement of

the Tribunal has not been complied with by
Zimbabwe, and that this has been the case with
other judgements handed down by the Tribunal
against Zimbabwe, including the award in favour of
what has now been termed the Campbell applicants,
which was issued by the Tribunal in the case of Mike
Campbell (PVT) Limited and Others v. The Republic of
Zimbabwe Case No. SADC (T) 11/08) (the Campbell
Case).
.
The Second Victim was one of the Campbell

Applicants, who now acts on behalf of the
Campbell applicants in the present
Communication.
The Complainant alleged that by a decision taken

by the SADC Summit, comprising the Respondent
States as decision-makers, between 16 to 17
August 2010 (the “First Decision”), the Tribunal
has now been suspended and its decisions cannot
be enforced.
The Victims sought to address this issue of

suspension by filing an application to the Tribunal in
March 2011, seeking a declaration inter alia that the
SADC Summit was bound to support and facilitate
the continued functioning of the Tribunal; however,
the Tribunal could/has not been convened to deal
with these matters because it is suspended by virtue
of a further decision (the “Second Decision”) taken
by the SADC Summit (and allegedly by implication,
the Respondent States) on 20 May 2011.
The Complainant alleged violations of Articles 7

and 26 of the African Charter.
Art. 7:1. Every individual shall have the right to

have his cause heard. This comprises:
a) The right to an appeal to competent national

organs against acts of violating his fundamental
rights as recognized and guaranteed by
conventions, laws, regulations and customs in
force;
Art. 26 - States parties to the present

Charter shall have the duty to guarantee
the independence of the Courts and shall
allow the establishment and
improvement of appropriate national
institutions entrusted with the promotion
and protection of the rights and
freedoms guaranteed by present Charter.
In his original Complaint, the

Complainant prayed that:
a. the Commission should refer

the Communication to the African
Court on Human and Peoples’
Rights (the Court):
The Complaint dated 27 July 2011, was received at

the Secretariat on 28 December, 2011 and
processed for seizure consideration.
During its 11 t h ExtraOrdinary Session held in Banjul,

the Gambia, from 21 February 2012 to 01 March
2012, the Commission was seized of the
Communication and decided not to refer the
Communication to the Court because it does not
meet the requirements for referral as provided for
the Commission’s Rules of Procedure.
The Complainant was further invited to submit

his arguments on the Admissibility of the
Communication against the fourteen (14)
states before the Commission.
Notes Verbale were sent to all the fourteen

(14) Respondent States, informing them about
the Complaint and attaching the same.
The Complainant submitted its arguments on

the Admissibility of the Communication in the
official languages of all the Respondent
States, and these were transmitted by the
Secretariat to all the Respondent States, by
Notes Verbales.
The Commission considered the Admissibility

of the Communication and declared the same
admissible.
The Secretariat informed the

Complainant and the Respondent States,
respectively, of the decision on
Admissibility, and the Complainant was
requested to forward his arguments on
the Merits within sixty (60) days of
notification, in accordance with Rule 108
(1) of the Commission’s Rules of
Procedure.
The States were also requested to

forward their written submissions on
the Merits and/or observations on
the Complainant’s submission within
sixty (60) days of notification, in
accordance with Rule 108 (1) of the
Commission’s Rules of Procedure.
The Secretariat received the Complainant’s response

to the submissions on the Merits by Respondent
States, in line with Rule 108(2) of the Commission’s
Rules of Procedure.
The Complainant forwarded to the Secretariat for its

reference, a judgment handed down by the
Constitutional Court of South Africa against
Zimbabwe, on 27 June, 2013.
The Commission considered the Merits of the
Communication.
 The Law on Admissibility
 All the criteria for Admissibility enumerated under Article 56

of the African Charter; namely:
 56(1) – That the Communication clearly indicates the names

and identities of the applicants , as well as that of their
authorized legal representative.
 56(2) – That the Communication clearly establishes all four

ratione jurisdiction is required for the Commission to have the
competence to consider the complaint, being personal,
material, temporal and territorial jurisdiction .
 56(3) – That the Complaint has not been written in a

disparaging language aimed at the Respondent States, and
the language used in the same is entirely appropriate,
concise, clear and competently sets out the cause of
complaint.
 56(4) – That it is not based on mass-media reports, but

instead, is fully supported by direct evidence, including
objective and reliable official records. He further asserts that
the evidence supporting the Communication is reliable,
indisputable, objective and independent.
56(5) – That the applicants have fully

satisfied the requirement to exhaust
domestic remedies, seeing that there is no
prospect of achieving any domestic remedy.
They compare the facts of the present
Communication to those of Sir Dawda K
Jawara vs. The Gambia [Communication
147/95 & 149/96 - Dawda K Jawara vs. The
Gambia (2000) ACHPR, paras 31- 34.]
 56(6) - the applicants have lodged this Communication duly,

sought to expedite its processing by the Secretariat and
Commission, and complied with every Rule, directive or request
by the Commission within the required time.
 56(7) - the suspension of the Tribunal (the ground of the

complaint) has still not been lifted, despite the Expert Report’s
recommendations and the public outcry by NGOs, SADC lawyers’
associations and even the international community.
 That there is no provision under either the African Charter or

the UN Charter which authorises the paralysis of the Tribunal, or
the perpetuation of the paralysis, nor is there any lawful
mechanism whereby the complaint can be “settled”.
 Preliminary Objection raised by Tanzania regarding the

Commission’s jurisdiction ratione personae and ratione
materiae.
 Whether, as an organ of the AU, the Commission can

determine a complaint filed against another subregional
organ and its members and consequently, whether it has a
mandate to proceed to issue an order against SADC and its
member States
 The referenced articles deal with criminal law procedures and

national courts, as opposed to the SADC Tribunal which is a
sub-regional organ of the Community.
Relying on the decision of the African Court in

the case of Femi Falana vs. The African Union
Application No.001/2011, Tanzania contended
that neither SADC nor its organs which have
been joined in the Communication are parties
to the African Charter to be able to invoke the
jurisdiction of the Commission or mandate to
deal with the Communication .
In view of the reasoning above, the

African Commission finds no
violation of Articles 7 and 26 of the
African Charter by the Respondent
States.
 22 October to 5 November 2013
333/06 Southern Africa Human Rights

NGO Network And Others / Tanzania,
Session:47th Ordinary Session, Date:May
12 to May 26 , 2010
The Complainants alleged that the

decision of the Tanzanian Court of Appeal
is a violation of Article 4 of the African
Charter.
The Complainants requested the African

Commission to declare that the Court of
Appeal’s decision violates Article 4 of
the African Charter and that the
circumstances of death penalty
executions in Tanzania by hanging
violates other relevant articles and other
international norms against torture
recognized by the African Commission.
On 22 n d June 1994, the High Court of Tanzania

rendered a decision in the case of R v. Mbushuu alias
Dominic Mnyaroje and Kalai Sangula, (the Mbushuu’
case) where it found that the death penalty in
Tanzania is unconstitutional on the grounds that the
way the sentence is executed (by hanging) violates
the right to dignity of a person as protected under
Article 13(6)(d) of the Constitution of the United
Republic of Tanzania and constitutes an inherently
cruel, inhuman and degrading treatment outlawed by
Article 13(6)(e) of the same.
Hon. Justice Mwalusanya

sentenced the accused persons
(Mbushuu alias Dominic Mnyaroje
and Kalai Sangula) to life
imprisonment instead of the
compulsory capital punishment
for the crime of murder.
The Tanzanian Government appealed the decision

of the High Court before the Court of Appeal.
On 30 th January 1995, the Hon. Justices of the

Court of Appeal: Makame, Ramadhan and Lubuva
overturned the High Court decision rendered by
Justice Mwalusa and found that the death penalty
is constitutional because it is saved by claw back
clauses provided in the Tanzanian Constitution .
The Court of Appeal held that the death penalty is

permissible under international human rights
instruments, has effective deterrence effect, is
accepted by the public, is economically cheaper to
execute than to serve a life imprisonment and is
compatible with the Constitutions and practices of
other State Parties to the African Charter.
The Court further held that in the event of a conflict

between domestic law and international law, the
domestic law prevails. [30 t h January 1995].
HUMAN AND PEOPLES’ RIGHTS
78. In view of the foregoing, the African

Commission decides:
That this Communication does not comply

with Article 56(6) of the African Charter, and
therefore declares it inadmissible;
 Done at the 47th Ordinary Session, held from
12th to 26th May 2010, in Banjul, The
Gambia.
243/01 Women's Legal Aid Center (On Behalf Of

Sophia Moto) / Tanzania, Session:36 t h Ordinary
Session, Date: November 23 to December 07 , 2004
157/96 Association Pour La Sauvegarde De La Paix

Au Burundi / Kenya, Uganda, Rwanda, Tanzania, Zaire
(DRC), Zambia, Session:33 r d Ordinary Session,
Date:May 15 to May 29, 2003
53/91_8AR Alberto Capitao / Tanzania, Session:17 t h

Ordinary Session, Date: March 13 to March 22 , 1995
AFRICAN COMMISSION ON HUMAN AND
PEOPLES’ RIGHTS
The African Commission on Human and
Peoples’ Rights, was created under art. 30 of
the African Charter “to promote human and
peoples’ rights and ensure their protection in
Africa.”
 It was inaugurated on 2 nd November 1987.
Its secretariat is located in Banjul, The Gambia.
COMMISSION’S LEGAL STATUS
The Commission acts as a quasi-judicial

body, reviewing complaints lodged by
states, individuals or non-governmental
organizations (NGOs) regarding
violations of the African Charter.
It is primarily individuals and NGOs that

use the individual complaint process.
The Commission has twofold

function, first, of promoting human
and peoples’ rights, and, second, of
protecting these rights (art. 30),
including the right to receive
communications both from States
and from other sources.
The State complaints procedure has

only been used once to date.
The Commission has the power to

check whether countries are meeting
their legal obligations to protect
human rights, as set out in the
Charter.
State Parties have the duty to protect the

human and peoples’ rights of their
populations, under the African Charter.
Complaints (called “communications”) related

to corporate misconduct can only be filed
where a State has failed to protect particular
rights under the Charter.
Where a corporation is state-

owned (either in whole or in
part), a communication can be
filed against a State for its
role in a corporation’s alleged
violations.
A State may also be held

responsible for human rights
violations perpetrated by third
parties in which it has no stake,
such as corporations, if it can be
proven that the State has failed to
protect its citizens from the acts of
private actors.
COMMISSION’S COMPOSITION
The Commission consists of 11

members, who are elected for a
six-year term by the African Union
Assembly from experts
nominated by State Parties to the
Charter to serve in their personal
capacity.
LOCUS STANDI BEFORE THE COMMISSION
Who can bring a complaint?

States Parties to the African Charter (Articles 47
to 54) (See, e.g., D. R. Congo v. Burundi, Rwanda
and Uganda [to date only inter-state cases have
been decided by the African Commission]).
Individuals and NGOs (Article 55)
Ordinary citizens, a group of individuals or NGOs
NGOs do not need observer status

with the mission to file a complaint.
The author of the communication

need not be related to the victim(s)
of the abuse but the victim(s) must
be mentioned.
Cases need not be submitted by lawyers;

however, the Commission has noted that legal
representation can be useful.
The complainant need not travel to the

Commission to submit their Communication or
argue their case; the case can be handled
entirely through written submissions.
Article 104 of the Rules of

Procedure of the Commission states
that the Commission may, either at
the request of the author of the
communication or at its own
initiative, facilitate access to free
legal aid to the author in connection
with the representation of the case.
Against whom can a complaint be brought?

Any state party to the African Charter
 Concluded at Nairobi on 27 June 1981
Registered by the Organization of African
Unity on 28 December 1988.
53 member states of the African Union (“AU”)
have ratified the Charter; Morocco withdrew
from the AU.
 Signed by H.E. Miss FATUMA TATU NURU, Ambassador

Extraordinary and Plenipotentiary of the United Republic of
Tanzania to Socialist Ethiopia (31/5/82).
 Came into force on 21 October 1986, i.e., three months after

the receipt by the Secretary -General of the Organization of
African Unity of the instruments of ratification or adherence
of a simple majority of the member States of the
Organization, in accordance with article 63 (3):
 The URT deposited its Instrument of Ratification on 9 t h March,

1984
Main reference documents when submitting a

communication:
The African Charter on Human and Peoples ‟
Rights (Banjul Charter ‟ , @
http://www.achpr.org/files/instruments/achpr/banju
l_charter.pdf
).
Rules of Procedure of the African Commission
@
http://www.achpr.org/files/instruments/rules-of-pro
cedure2010/rules_of_procedure_2010_en.pdf
Other international treaties, conventions and

regional jurisprudence, which are relevant to
the complainant's case.
See Article 61 of the Charter
See for further legal instruments that might

be applicable subject to their ratification by
the relevant state:
http://www.achpr.org/instruments/
 Working languages
Any communications submitted to the

Commission must be in one of the
African Union ‟ s working languages ,
which “shall be, if possible, African
languages, Arabic, English, French and
Portuguese.”
JURISDICTION
Interpret the provisions of the Banjul Charter

and the supplementary protocols through
issuing General Comments, Thematic
Resolutions, Guidelines or Principles.
All General Comments adopted so far to the

Charter and the Maputo Protocol have made
special reference to women and people with
disabilities.
JURISDICTION
Review State Reports to monitor compliance

with states’ human rights obligations and
issue Concluding Observations.
States are required to submit a report to the

African Commission every two years on the
measures they have taken to implement the
Banjul Charter and any additional protocols
the state has ratified.
JURISDICTION
The African Commission will review

the report and adopt concluding
observations that acknowledge the
progress made, express concern
about possible human rights
violations, and offer
recommendations to improve
compliance.
JURISDICTION
Hear Individual Complaints (or Communications).

NGOs and individuals can file individual complaints
alleging violations of the rights protected in the
Banjul Charter, as well as the Maputo Protocol, and
the Disability Protocol.
The African Commission will examine the facts and

review arguments of parties to determine whether
there has been a violation and, if so, will recommend
what the state must do to remedy the victim.
JURISDICTION
In the context of individual complaints, the African

Commission can:
facilitate friendly settlements (negotiations

between the victim and the state to reach an
agreement);
call on the state to take Provisional Measures,

while the case is pending before the African
Commission, to prevent irreparable harm to the
victim or victims of the alleged violation; and
JURISDICTION
make a determination to treat the complaint

as an Emergency, where there is evidence of
serious or massive violations of human and
peoples’ rights or of a situation that presents
the danger of irreparable harm.
In such cases, the Commission may issue

Urgent Appeals to communicate time-sensitive
information requesting state authorities to
take urgent interventions.
JURISDICTION
Conduct missions in African Union (AU)

member states to investigate and disseminate
information. The African Commission conducts
two types of missions:
Protective missions, which typically include

on-site visits, for example to investigate
specific facts relating to a pending individual
complaint or allegations of massive and
serious human rights violations; and
JURISDICTION
Promotional missions, undertaken by

the African Commission or its Special
Mechanisms to sensitize States about
the role of the Banjul Charter, encourage
states to ratify the Banjul Charter or
other human rights instruments, or to
persuade non-reporting states to comply
with their reporting obligations.
COMMUNICATION FILING PROCEDURE
 What is the procedure for bringing a

complaint?
The complainant sends a “letter of

introduction” of a complaint in which
he/she/they include a brief description of the
facts, attempts to exhaust domestic remedies,
contacts and other information contained in
Rule 93(2) of the Rules of Procedure .
The letter of introduction of complaint is

sent to the Secretariat of the
Commission, which is based in Banjul,
The Gambia.
It is sufficient to send the communications by

email, however, it is advisable to also send a
hard copy by regular mail.
Contacts:
Secretary, African Commission on

Human and Peoples ‟ Rights
Kairaba Avenue P.O. Box 673 Banjul
The Gambia Fax: +220 4392 962
Email: au-banjul@africa-union.org
Should the complainants not receive

an acknowledgment, it is advised to
follow up and request
acknowledgment of receipt.
After registering the Communication,

there are three main stages.
1. SEIZURE
Seizure is the action by which the

Commission decides to consider a
Communication (Rule 93).
 For a communication to be seized by the

Commission it must fulfill the following
requirements:
1. Seizure Requirements

Signed (if submitted online, then scan signature and
send by email) – note that the complainant can
request anonymity;
Against States that are parties to the Charter;
Reveal a prima facie violation of the Charter (reveal

incidents that upon initial observation reveal a
violation of human rights, rather than general
statements about human rights situation in country ).
2. Informing Parties
If the Commission decides to be seized, the

Secretariat will inform the complainant and the
state concerned.
Note: the state is only now informed of the existence

of the communication.
The communication is then deferred for

consideration on admissibility.
PROVISIONAL MEASURES
According to Rule 98 of the Rules of Procedure, “at

any time after the receipt of a Communication and
before a determination on the merits, the
Commission may, on its initiative or at the request of
a party to the Communication, request that the State
concerned adopt Provisional Measures to prevent
irreparable harm to the victim or victims of the
alleged violation as urgently as the situation
demands.”
What constitutes a risk of irreparable harm is

decided on a case by case basis.
For example: In Egyptian Initiative for
Personal Rights & Interights v. Egypt
(334/06), the Complainants requested
provisional measures, in order to put a hold on
the execution of a death sentence until the
case before the Commission is considered.
A death sentence is an example of irreparable
harm.
The request for provisional measures

is independent of a decision on the
substance, as its purpose is to protect
rights at the time the request is made.
It does therefore not imply a decision

of the Commission on the substance of
the case.
ADMISSIBILITY
1. Process of Admissibility (Rule 105 of the
Rules of Procedure + Article 56 of the African
Charter)
Once the communication is seized, the

Commission will request the complainant to
present evidence and arguments on
admissibility within two months.
The state party has two months from

the time it is notified of the complaint's
admissibility submission to submit its
arguments on admissibility in response.
Upon receiving the state's submissions,

the complainant may comment on
those submissions within a month.
2. Admissibility based on the Charter:
Article 56 of the Charter sets out

seven criteria for admissibility.
It is essential that all seven criteria

are met.
The seven criteria for admissibility

under art. 56 of the Charter:
3. Article 56(1): Indicate authors even if

the latter request anonymity,
Name and address of author (and not
necessarily the victim) must be provided.
Is there a need to justify request for
anonymity? NO!
Reasons for anonymity are not required.
Loss or lack of proper contact may

result in communication being
declared inadmissible or closed
altogether (See, e.g., Comm. Krishna
Achutan and Amnesty International
v. Malawi(62/92), Dioumessi and
Others v. Guinea(70/92), Joana v.
Madagascar (108/93)).
What happens if contact re-

established?
Commission can reopen a closed

communication or a communication
that had been deferred sine die
(adjourned indefinitely). Eg. Riffaat
Makkawi v. Sudan (311/05).
4. Article 56(2): “Compatible with

the Constitutive Act of the AU or with
the present Charter”:
Communication must specifically
address violation of rights
guaranteed in Charter; cannot be
just vague statements about general
political situation in a country.
Alleged facts must have occurred

after the ratification of the Charter
by the state against whom the
complaint is submitted (except in the
case of violations that continued to
be perpetrated after the entry into
force of the Charter, such as
enforced disappearance).
5. Article 56(3)“Are not written in disparaging

or insulting language directed against the
State concerned and its institutions or to the
AU:”
Ligue Camerounaise des Droits de l'Homme v.
Cameroon (65/92): Communication
inadmissible because of statements such as:
“regime of torturers”; “government
barbarisms”; “Paul Biya must respond to
crimes against humanity.”
6. When submitting a

communication to the Commission,
language used should therefore be
neutral, and not aim at undermining
the integrity/ status/ reputation of a
person or an institution (such as a
particular ministry or government).
7. Article 56(4) “Are not based exclusively on news

disseminated through the mass media”:
Author must investigate and ascertain truth of facts.
Media reports can be used, though not exclusively, and

must be accompanied / substantiated by other
material.
Evidence substantiating the allegations should be

annexed to communication, including affidavits, court
judgments, eyewitness/expert reports, reports of NGOS
and international organisations (AU, UN, EU etc).
8. Article 56(5): “Are sent after exhausting local

remedies, if any, unless it is obvious that this
procedure is unduly prolonged.”
Note that this is the most critical criterion for

admissibility; most cases fail because of lack of
exhaustion**
“Local remedies” are any judicial/legal

mechanisms put in place at the domestic level to
ensure the effective settlement of disputes .
9. Article 56(5):

What does “exhaustion” of local remedies mean?
Before bringing a dispute to the Commission, the
complainant must have utilized all the legal or judicial
avenues available domestically to resolve the matter .
Case is inadmissible if pending before the national

courts, complainant fails to show that he/she made
effort to appeal, or if the complainant chooses to apply
for clemency instead of taking the matter to the
courts.
Local remedies must be actually

attempted: complainant cannot rely
on past or other experiences for not
attempting.
Must submit information on all the

steps taken to exhaust local
remedies; however:
10. Article 56(5):

 Local remedies must be “available, effective and
sufficient”
A remedy is = “available” if the petitioner can pursue it

without impediment.
A remedy is = “effective” if it offers a reasonable

prospect of success.
A remedy is = “sufficient” if it is capable of redressing

the complaint.
These criteria have been set out in

many different cases from the
Commission and are now well
established.
The leading authority on these criteria

is the case of Sir Dawda K. Jawara /
Gambia (The) 147/95-149/96).
11. Article 56(5)

Who has the Burden of Proof?
Complainant has the burden to prove that local remedies

exist and have been exhausted.
Burden then shifts to the state, which must show why

remedies have not been exhausted and how the remedies
are available and can be used to solve complaint before
Commission.
General statements are not enough – specific proof is

required
Article 19 v Eritrea:
“Whenever a State alleges the failure by the
Complainant to exhaust domestic remedies, it
has the burden of showing that the remedies
that have not been exhausted are available,
effective and sufficient to cure the violation
alleged, i.e. that the function of those
remedies within the domestic legal system is
suitable to address an infringement of a legal
right and are effective….”
“…When a State does this, the

burden of responsibility then shifts
to the Complainant who must
demonstrate that the remedies in
question were exhausted or that the
exception provided for in Article
56(5) of the African Charter is
applicable.”
12. Article 56(5) – Exceptions:

Only available, effective and
sufficient remedies need to be
exhausted.
Exceptions to the exhaustion of

local remedies rule:
Ouster of Jurisdiction of Courts

Ouster: where state has adopted laws that oust (i.e.
exclude or nullify) the jurisdiction of ordinary courts,
local remedies are found to be non-existent (e.g.
129/94 – Civil Liberties Org v Nigeria: government
enacted laws ousting the jurisdiction of courts in
Nigeria to adjudicate legality of any decree. The
Commission held that “since the decrees complained
of oust the jurisdiction of the courts to adjudicate
their validity, it is reasonable to presume that local
remedies will not only be prolonged but are certain
to yield no results.”)
Unduly Prolonged Remedies (e.g. – appeal

pending for 12 years; case going on for 5
years)
In general, jurisprudence from

the InterAmerican Commission
and Court for Human Rights as
well as the African Commission
suggest that the term “unduly
prolonged” does not indicate a
precise timeframe or duration.
The time that elapses since domestic

procedures are initiated together with the
circumstances of the case and their relation
to each other decide if the prolongation from
the state's side is to be seen as unjustifiable.
See Enga Mekongo v Cameroon (59/91) – 12

years pending; Oudjouriby Cossi Paul v Benin
(199/97) - case going on for 5 years.
Element of Fear – fleeing one's

country
Element of Fear: where complainant

has fled in fear from the country or
where alleged violation took place
and could therefore not exhaust
domestic remedies.
See Communication MAY be declared admissible

(see, e.g., Ouko v. Kenya(232/99); Rights
International v. Nigeria (215/98); Jawara v. The
Gambia (147/95).
BUT… contrast these cases with Mr. Obert Chinhamo

v Zimbabwe (307/05) and Michael Majuru v.
Zimbabwe (308/05) – where Commission ruled that
complainants did not demonstrate element of fear
and decided Communication inadmissible for lack of
exhaustion of domestic remedies.
Situation of Serious or Massive Violations:

complainant must demonstrate nature and scope
of violation(s) – must show, for example, that the
victims are so many and the crimes are so
serious or massive (widespread) that it is
basically impractical to bring them before courts.
This has happened in quite a few cases – e.g.

cases against Sudan, Zaire (now Democratic
Republic of Congo), and Rwanda).
Note: the underlying rationale for 56(5) is for

the state to have ample notice of (an) alleged
violation(s) and be given an opportunity to
remedy it.
If the state had ample notice and time yet
failed to take steps to remedy the violation,
this could undermine the availability,
effectiveness or sufficiency of domestic
remedies. (see, e.g. Article 19 v. Eritrea
(275/03)).
13. Article 56(6): “Are submitted within a reasonable

period from the time local remedies are exhausted, or
from the date the Commission is seized with the
matter”
Advisable to submit as soon as possible.
Previously the Commission had been lenient with

interpreting the “reasonable time” requirement, where
cases were considered admissible within a spectrum
that ranged from several months to 16 years. The
Commission treated cases on their own merits
depending on reasons given for their delay.
In Michael Majuru v. Zimbabwe (308/05)

the Commission stated that;
“The provisions of other international
regional instruments like the European
Convention on Human Rights and
Fundamental Freedoms and the Inter-
American Convention on Human Rights,
are almost similar and state that they „...
may only deal with the matter...”
“….within a period of six months from the date

on which the final decision was taken ‟, after
this period has elapsed the [European/ Inter-
American] Court/Commission will no longer
entertain the communication.”
In this case, the Commission considered that

a 22 months delay in bringing the case before
the Commission was outside a “reasonable
time ‟ period.
14. Article 56(7):

“Do not deal with cases which have been
settled by those States involved in accordance
with the principles of the Charter of the United
Nations, or the Constitutive Act of the AU or
the provisions of the present Charter.”
Communications that have been finalized by

some other international mechanism similar
to the Commission = inadmissible.
E.g. Amnesty International v. Tunisia

(69/92)
Communications still pending before
another adjudicating body = inadmissible.
E.g. Mpaka-Nsusu v. Zaire(15/88):

communication already been referred to
UN Human Rights Committee.
Commission will, however, consider

communications that have been
discussed by non-judicial international
bodies, such as UN special rapporteurs
E.g. Bakweri Land Claims Committee v
Cameroon (260/02)
E.g. SHRO & COHRE v Sudan (279/03
and 296/05)
15. Revision of Decision on

Admissibility
If Commission declares a

communication inadmissible,
complainant can reintroduce it to
the Commission for review.
Rule 107(4) If the Commission has declared a

Communication inadmissible this decision
may be reviewed at a later date, upon the
submission of new evidence, contained in a
written request to the Commission by the
author.
For example – when reason for declaring
inadmissible has been rectified or where
complainant believes Commission made a
mistake.
16. Amicable Settlement (Rule 109)
Once a communication is declared

admissible, the Commission puts itself at
disposal of parties to facilitate friendly
settlement.
This can occur at any stage in proceedings.
If friendly settlement is reached, a report

containing terms of settlement is presented
to the Commission. Matter is then closed.
The Commission strongly encourages

friendly settlement of the dispute. If parties
express willingness to settle the matter
amicably, then the Commission will appoint
a Rapporteur to facilitate.
Settlement can only be made:

1) in compliance with human rights; and
2) with full cooperation of both parties.
This is important because an imbalance

of power between two parties can steer
complainant to accept something that is
not to their advantage.
Revised Rules of Procedure –

Commission is now compelled
to make it publicly known how
the settlement fulfills the two
requirements above.
17. Declared Admissible? What

Next?
When a Communication is declared
admissible, and is not settled
amicably, the Commission will invite
the complainant to make
submissions on the merits within 60
days.
MERITS:
1. Definition and process: Article 46
2. Timing and procedure (Rule 108)
3. Applicable laws and principles
4. Types of evidence accepted
5. Practical advice for drafting
communication on merits
Ensure that all allegations are well supported

and based on specific facts.
Clearly specify the rights that are violated

with reference to the African Charter.
Conduct thorough research on Commission

case law and other int ‟ l human rights
jurisprudence dealing with the relevant rights.
6. Hearings at the Commission:

(Rule 99 (4)):
REMEDIES
REMEDIES
1. Description
In order to encourage the Commission to specify a
remedy, complainants must clearly request a remedy
and justify why it is appropriate.
Advisable to request specific remedies for later follow

up on their implementation by the state.
Include remedies that will not only deal with the

individual case at hand, but will address a more
systemic, structural flaw.
REMEDIES
2. Types of remedies/ forms of

reparation
Remedy/form of reparation requested
must depend on the nature of the
violation and the different types of harm
inflicted on the complainant, as well as
the structural reasons which have led to
such harm (e.g. legal structure, policies,
discrimination)
REMEDIES
Forms of Reparation include:

1. Restitution: restore complainant to original
situation before violation. Includes: restoration of
liberty, citizenship, return to one ‟s place of residence,
restoration of employment and return of property.
2. Compensation: economically assessable damages

for moral, material or other forms of harm
Advisable to ask for a specific amount, factoring in
inflation during the years the communication is
considered.
REMEDIES
3. Rehabilitation: for instance (access to) medical

and/ or psychological care as well as legal and social
services.
4. Satisfaction: can include broad range of

measures, for instance a retrial in case of wrongful
conviction; obligation to carry out an independent
and thorough investigation and prosecution of those
responsible for the violation (s); apology from State/
from authority in question; publication of ACmHPR ‟ s
ruling; building of monuments; granting citizenship)
REMEDIES
5. Guarantees of non-repetition: remedies that contribute

to prevention of further occurrence of similar violations.
 Structural changes (e.g. repeal of decrees/laws that are

for instance a barrier to accountability (such as amnesty
laws or immunity provisions) or reforming electoral
laws);
Request state to investigate, prosecute and punish

perpetrators – for torture related violations, consult the
Istanbul Protocol; for extra-judicial killings, consult
Minnesota Protocol.
REMEDIES
1. What if a state fails to respond?

It is not unusual for States to ignore
communications and refuse to
cooperate with the Commission.
In this case, the Commission relies

on the facts at its disposal to reach a
final decision.
REMEDIES
2. Withdrawal of
communication
A complainant may decide to

withdraw a communication at
any stage of the proceedings.
ENFORCEMENT
3. Rulings of the Commission

Recommendations/Decisions are made after
consideration of the facts submitted by author, state
party's observations (if any) and proceedings before
Commission.
The recommendations remain confidential until they are

adopted by the Assembly of Heads of State of the
African Union at its annual meeting (Article 59).
Parties then receive a letter from the Secretariat of the

Commission with the decision.
ENFORCEMENT
The Commission is a quasi-judicial body and

some states have in the past argued that the
Commission’s final recommendations are
therefore not legally binding.
Commission usually requires the state to

inform it, within 180 days, of the measures
taken to implement the recommendations.
ENFORCEMENT
It is left to the complainant to develop a strategy to

ensure enforcement which can include a variety of
steps outlined further below. It is important to keep
the Commission informed about the status of
implementation in the respondent state.
It can be helpful to request the Commission to

inform you about the date in which the respondent
state was notified, which authority in the respondent
state was notified and to possibly send the decision
to other bodies/authorities in the respondent state.
ENFORCEMENT
Institutions best placed to facilitate

enforcement at the national level include:
Government/Executive: to engage relevant

national institutions to address specific
reparation measures such as obligation to
investigate and prosecute; compensation;
rehabilitation; apologies; law reform
proposals; erection of monuments etc.;
ENFORCEMENT
Courts: for freeing detainees for

example;
Parliament: for legislative amendments

and changing laws;
National human rights institutions – for

recommendations on compliance.
ENFORCEMENT
Complainants can also go back to the

Commission in cases of non-compliance- for
instance by filing a separate complaint using
Article 1 or use the state reporting procedure
of the Commission under Article 62 to raise
failure of compliance.
Media – Can be a tool of advocacy directed at

the concerned executive bodies to comply with
the Commission's decision and implement it
COMPLAINT PROCEDURES
SUMMARY
 1. Complaints (or “communications”) to the Commission
alleging violations of the African Charter by a State.
 2. Issuance of letter of acknowledgement by Commission’s
Secretariat
 3. Summary of the complaint prepared and presented for
consideration by the 11 Commissioners.
 4. Commissioners decide by majoritry rule whether they will
consider it after determining whether there are any
allegations of violations of the African Charter or whether it
has been properly submitted according to the provisions in
Article 55 of the Charter.
 5. Once the decision has been made, the communication will
be considered at the Commission’s next session.
SUMMARY
6. The Secretariat will inform the parties and the
complainant has a further three months to submit
additional comments on admissibility.
7. The Commission may also ask complainants to

respond orally at this stage.
8. If the communication is deemed admissible, the

complaint will then be forwarded to the relevant
State Party, which is subsequently asked to respond
to the communication within three months.
SUMMARY
9. At any stage of the communication, the
Commission can offer to facilitate a friendly
settlement of the dispute (similar to
mediation) at the request of any of the parties
involved.
10. If both parties are willing to settle the

dispute amicably, a Rapporteur will be
appointed.
SUMMARY
11. If a settlement is reached, the terms of
settlement are presented to the Commission at its
session and the case is considered closed. If no
agreement can be reached, a report is submitted to
the Commission and a decision will be made on the
admissibility or merits of the case.
12. After a communication has been declared

admissible, or if an amicable settlement cannot be
reached or is unsuccessful, the substantive issues of
the case will be examined, including any responses by
the complainant and the State.
PREPARATION BEFORE FILING THE
COMPLAINT
 Consider who the person and/or entity
responsible for the rights violations is. The African
Commission can only hear communications for
violations of rights by State Parties to the African
Charter.
 Document exactly how the State is responsible for

the human rights violations. Did the State fail to
prevent, remedy, investigate or punish those
responsible for the violation, or did it support,
contribute to, or was it complicit in the violation ?
PREPARATION BEFORE FILING THE
COMPLAINT
Determine what human rights have been violated
and whether these fall within the African Charter.
Check whether the violation occurred in one of the

African States that have ratified the African Charter.
 Check whether all domestic legal remedies have

been exhausted. If not, explain why.
 It may help to have legal assistance or an

experienced NGO help with the communication.
WRITE THE COMMUNICATION
There are a number of guidelines

when submitting a communication
to the Commission.
The communication should include:

(see also Rule 93 of the Rules of
Procedure):
 The name and details of the complainant(s).
Specify if the complainant wants their details

to remain confidential.
 The name of the State and the titles of the

government authorities who have committed
the violation.
A description of the facts causing the violation,

including the date, time and place.
Be precise and do not base facts exclusively on media

reports.
Attach further supporting evidence like photos or video

footage, if available.
 If possible, a list of the provisions of the African Charter

that have been violated. If it is unclear, do not mention
any.
 Names and contact details of witnesses.
 Provide evidence that local remedies have been

exhausted, or an explanation as to why not.
 Information as to whether the communication has

been, or is being, considered before any other
international human rights body.
 If the matter is urgent – explain the urgency of the

situation.
T H E W H O , W H AT, W H E N , W H E R E , A N D W H Y O F F I L I N G A C O M P L A I N T
Who: Any person who feels that their rights

under the African Charter have been violated
may file a complaint (or “communication”).
Any ordinary citizen, group, NGO and State

Parties to the African Charter.
A complaint can only be brought against a

State that has ratified the African Charter –
minus Sudan and Morocco.
THE WHO, WHAT, WHEN, WHERE, AND
WHY OF FILING A COMPLAINT
What: A complaint must describe a
violation of rights as set out in the
African Charter, or the Maputo Protocol.
When: A complaint should be submitted

in a reasonable time (ideally as early as
possible) after the violation has occurred
and after all available local remedies
have been pursued.
Where: The complaint should be

submitted to the Secretariat of
the African Commission based in
The Gambia, either via mail or
electronically at:
au-banjul@africaunion.org
Why: Submitting a complaint to

the African Commission allows
complainants to raise issues
relating to civil, economic,
social and cultural rights, as
well as labour-related issues
and rights.
Complaints are likely to raise awareness of an
issue nationally, regionally and internationally
and could result in the Commission making a
formal recommendation to a State Party to
improve a situation or to recommend provisional
State measures to avoid irreparable damage.
It could help to resolve a dispute between you

and a State Party and indirectly address the role
of companies in the violation by the State.
YOU MUST SUBMIT YOUR COMPLAINT
You must submit the communication in writing,

addressed to the Secretary or Chairman of the
African Commission on Human and Peoples’
Rights at the following address:
The African Commission on Human and Peoples’

Rights No 31 Bijilo Annex Layout Kombo North
District, Western Region P.O. Box 673 Banjul,
The Gambia T + 220 441 05 05; 441 05 06 F +
220 441 05 04 au-banjul@africa-union.org
DISCUSSION/ 15:30-
16:00 pm -
FEEDBACK
AFRICAN COMMITTEE OF
EXPERTS ON THE RIGHTS AND By Mr. Justice
(Rtd) Robert V.
WELFARE OF THE CHILD Makaramba
[ACERWC]
SYNOPSIS
Composition, Legal status and

mandate/functions.
LEGAL STATUS
Draws its mandate from articles 32-

46 of the African Charter on the
Rights and Welfare of the Child,
which was adopted by the Heads of
State and Government of the OAU on
11 th July 1990 and came into force
on 29 th November 1999.
COMPOSITION
The Charter provides for the

Establishment of an African
Committee of Experts on the
Rights and Welfare of the
Child consisting of 11
members.
COMPOSITION
The Committee consists of 11 members of high

moral integrity, elected by the Assembly of
Heads of States and Governments of the African
Union for a renewable term of five years.
They serve in their personal capacity.
The Committee elects its own Bureau for a

period of two years with the possibility of re-
election.
COMPOSITION
 The Bureau of the committee consists of a chairperson, two

Vice Chairpersons, a Rapporteur and a Deputy Rapporteur.
 Chairperson: Hon. Joseph Ndayisenga
 1 s t Vice-chair: Hon. Azza Ashnawy
 2 n d Vice-Chair: Hon. Sidiokou Aissatou Allasane Maulaye
 Rapporteur: Hon. Kombo Hermine
 2 n d Rapporteur: Hon. Maria Mapani-Kawimbe
MANDATE/FUNCTIONS
(a) To promote and protect the rights enshrined in

this Charter and in particular to:
(i) collect and document information,

commission inter-disciplinary assessment of
situations on African problems in the fields of the
rights and welfare of the child, organize meetings,
encourage national and local institutions concerned
with the rights and welfare of the child, and where
necessary give its views and make
recommendations to Governments;
MANDATE/FUNCTIONS
(ii) formulate and lay down principles and

rules aimed at protecting the rights and
welfare of children in Africa;
(iii) cooperate with other African,

international and regional Institutions and
organizations concerned with the
promotion and protection of the rights
and welfare of the child.
MANDATE/FUNCTIONS
(b) To monitor the implementation and

ensure protection of the rights enshrined in
this Charter.
(c) To interpret the provisions of the

present Charter at the request of a State
Party, an Institution of the Organization of
African Unity or any other person or
Institution recognized by the Organization of
African Unity, or any State Party.
MANDATE/FUNCTIONS
(d) Perform such other task as

may be entrusted to it by the
Assembly of Heads of State and
Government, Secretary-General
of the OAU and any other organs
of the OAU or the United Nations.
REPORTING PROCEDURE
1. Every State Party to the present Charter shall

undertake to submit to the Committee through the
Secretary-General of the Organization of African
Unity, reports on the measures they have
adopted which give effect to the provisions of
this Charter and on the progress made in the
enjoyment of these rights:
(a) within two years of the entry into force of the

Charter for the State Party concerned: and
(b) and thereafter, every three years.
REPORTING PROCEDURE
2. Every report made under this Article shall:
(a) contain sufficient information on the

implementation of the present Charter to provide
the Committee with comprehensive understanding
of the implementation of the
Charter in the relevant country; and
(b) shall indicate factors and difficulties, if any,

affecting the fulfillment of the obligations contained
in the Charter.
REPORTING PROCEDURE
3. A State Party which has

submitted a comprehensive first
report to the Committee need not,
in its subsequent reports submitted
in accordance with paragraph I (a)
of this Article, repeat the basic
information previously provided .
COMMUNICATIONS
1. The Committee may receive

communication, from any person, group or
nongovernmental organization recognized
by the Organization of African Unity, by a
Member State, or the United Nations relating
to any matter covered by this Charter.
2. Every communication to the Committee

shall contain the name and address of the
author and shall be treated in confidence .
INVESTIGATIONS BY THE COMMITTEE
1. The Committee may, resort to any

appropriate method of investigating any
matter falling within the ambit of the present
Charter, request from the States Parties any
information relevant to the
implementation of the Charter and may
also resort to any appropriate method of
investigating the measures the State Party
has adopted to implement the Charter.
2. The Committee shall submit to each

Ordinary Session of the Assembly of Heads
of State and Government every two years, a
report on its activities and on any
communication made under Article 44 of
this Charter.
3. The Committee shall publish its

report after it has been considered by
the Assembly of Heads of State and
Government.
4. States Parties shall make the

Committee’s reports widely available to
the public in their own countries.
35 th Ordinary Session (Virtual) of the African

Committee of Experts on the Rights and
Welfare of the Child (ACERWC) from 31 August
to 08 September 2020.
Register in advance for this webinar:

https://zoom.us/webinar/register/WN_ESY
LBu7BQHylYsjBPJv0DQ
By Mr. Justice
THE SADC TRIBUNAL (Rtd) Robert V.
Makaramba
SYNOPSIS
Composition, Legal status, locus standi, cause

of action and Jurisdiction.
THE SADC TRIBUNAL
The SADC Tribunal was a court and the highest

policy institution of the Southern African
Development Community.
It was housed in the Turnhalle building in

Windhoek, the capital of Namibia.
Although established on paper since 1992,

members of the Tribunal were only appointed
during the SADC Summit in 2005.
MANDATE
The SADC Tribunal is currently suspended.

This information therefore pertains to the
court’s mandate as originally designed and
carried out until late 2010.
Charged with ensuring Member States’

compliance with the SADC Treaty and
subsidiary instruments, the SADC Tribunal
also has competence to hear individual
complaints of alleged human rights violations.
JURISDICTION
In March 2003, at its meeting in,

the SADC Council of Ministers
approved the operationalization
of the SADC Tribunal in light of
the provisions of Article 4 of the
Protocol on Tribunal and Rules of
Procedure Thereof.
JURISDICTION
 Ar ticle 14: Basis of Jurisdiction
 Pur suant to Ar ticle 14 of the Protocol on Tribunal, the Tribunal shall

have jurisdiction over all disputes and all applications referred to it in
accordance with the Treaty of SADC and the Protocol which relate to:
 a) the interpretation and application of the Treaty;
 b) the interpretation, application or validity of the Protocols, all

subsidiar y instruments adopted within the framework of the
Community, and acts of the institutions of the Community;
 c) all matters specifically provided for in any other agreements that

Member States may conclude among themselves or within the
community and which confer jurisdiction on the Tribunal.
JURISDICTION
Article 15: Scope of Jurisdiction

1. The Tribunal shall have jurisdiction over disputes
between States, and between natural or legal
persons and States.
2. No natural or legal person shall bring an action
against a State unless he or she has exhausted all
available remedies or is unable to proceed under the
domestic jurisdiction.
3. Where a dispute is referred to the Tribunal by any
party the consent of other parties to the dispute
shall not be required.
JURISDICTION
Article 16: Preliminary Rulings

1. Subject to the provisions of paragraph 2 of this
Article, the Tribunal shall have jurisdiction to give
preliminary rulings in proceedings of any kind and
between any parties before the courts or tribunals of
States.
2. The Tribunal shall not have original jurisdiction but
may rule on a question of interpretation, application
or validity of the provisions in issue if the question is
referred to it by a court or tribunal of a State for a
preliminary ruling in accordance with this Protocol.
JURISDICTION
Article 17: Disputes between States and

Community
Subject to the provisions of Article 14 of this

Protocol, the Tribunal shall have exclusive
jurisdiction over all disputes between the
States and the Community. Such disputes may
be referred to the Tribunal either by the State
concerned or by the competent institution or
organ of the Community.
JURISDICTION
Article 18: Disputes between Natural or Legal

Persons and Community

Protocol the Tribunal shall have exclusive jurisdiction
over all disputes between natural or legal persons
and the Community. Such disputes may be referred
to the Tribunal either by the natural or legal person
concerned or by the competent institution or organ of
the Community.
JURISDICTION
Article 19: Disputes between Community and

Staff

Protocol the Tribunal shall have exclusive
jurisdiction over all disputes between the
Community and its staff relating to their
conditions of employment.
JURISDICTION
Article 20: Advisory
The Tribunal shall have jurisdiction

to give advisory opinions, which may
be requested by the Summit or by
the Council in terms of paragraph 4
of Article 16 of the Treaty.
JURISDICTION
 Article 21: Applicable Law

 The Tribunal shall:
 (a) apply the Treaty, this Protocol and other Protocols that
from part of the Treaty, all subsidiary instruments adopted by
the Summit, by the Council or by any other institution or organ
of the Community pursuant to the Treaty or Protocols; and
 (b) develop its own Community jurisprudence having regard to

applicable treaties, general principles and rules of public
international law and any rules and principles of the law of
States.
MANDATE
SADC is headquartered in Gaborone, Botswana.
SADC promotes further socio-economic

cooperation and integration, and political and
security cooperation among 15 southern
African states, namely: Angola, Botswana,
Democratic Republic of Congo, Lesotho,
Madagascar, Malawi, Mauritius, Mozambique,
Namibia, Seychelles, South Africa, Swaziland,
Tanzania, Zambia, and Zimbabwe.
MANDATE
The SADC Tribunal used to sit in Windhoek, Namibia

and had jurisdiction over disputes among SADC
Member States as well as between individuals or
corporations and Member States.
Article 4 of the SADC treaty requires SADC and its

Member States to act in accordance with the
principles of human rights, democracy, and the rule of
law.
The SADC Tribunal operated according to the Protocol

on Tribunal and the Rules of Procedure.
SADC TRIBUNAL DECISIONS SINCE 2007
Bach's Transport (Pty) Ltd v Democratic Republic of

Congo (SADC (T) 14/2008) [2010] SADCT 6 (11 June
2010)
Campbell and Another v Republic of Zimbabwe

(SADC (T) 03/2009) [2009] SADCT 1 (5 June 2009)
Fick and Another v Republic of Zimbabwe (SADC (T)

01/2010) [2010] SADCT 8 (16 July 2010)
Kanyama v SADC Secretariat (SADC (T) 05/2009)

[2010] SADCT 1 (29 January 2010)
Kethusegile-Juru v Southern African Development

Community Parliamentary Forum (SADC (T)
02/2009) [2010] SADCT 2 (5 February 2010)
Kethusegile-Juru v Southern African Development

Community Parlimentary Forum (SADC (T) 02/2009)
[2010] SADCT 7 (11 June 2010)
Mike Campbell (PVT) Limited and Another v Republic

of Zimbabwe (2/07) [2007] SADCT 1 (13 December
2007)
Mike Campbell (Pvt) Ltd and Others v Republic of

Zimbabwe (2/2007) [2008] SADCT 2 (28 November
2008)
Mondlane v SADC Secretariat (SADC (T) 07/2009)

[2010] SADCT 3 (5 February 2010)
Mtingwi v SADC Secretariat (1/2007) [2008] SADCT

3 (27 May 2008)
Nixon Chirinda and Others v Mike Campbell (Pvt)

Limited and Others (09/08) [2008] SADCT 1 (17
September 2008)
Swissbourgh Diamond Mines (Pty) Ltd and Others v

Kingdom of Lesotho (SADC (T) 04/2009) [2010]
SADCT 4 (11 June 2010)
Tembani v Republic of Zimbabwe (SADC (T) 07/2008)

[2009] SADCT 3 (14 August 2009)
United Peoples’ Party of Zimbabwe v SADC and

Others (SADC (T) 12/2008) [2009] SADCT 4 (14
August 2009)
United Republic of Tanzania v Cimexpan (Mauritius)

Ltd and Others (SADC (T) 01/2009) [2010] SADCT 5
(11 June 2010)
Zimbabwe Human Rights NGO Forum v

Republic of Zimbabwe (SADC (T) 05/2008)
[2009] SADCT 2 (1 January 2009)
Database last updated: 16 August 2012

Most recent decision: 16 July 2010
Number of decisions: 16
See: http://www.saflii.org/sa/cases/SADCT/
SUSPENSION OF SADC TRIBUNAL
The Tribunal has ruled that it has jurisdiction to hear

human rights complaints, but its exercise of this
competence led to an SADC-ordered review of the
Tribunal’s role and functions in 2010, resulting in the
suspension of its activity.
The SADC Summit of Heads of State and Government

agreed in August 2012 to create a new court with a
mandate limited strictly to the adjudication of inter-
State disputes arising from the SADC Treaty and its
protocols, rather than international human rights
norms.
In 2014, nine States signed the

revised Protocol on the tribunal,
which would explicitly limit the
Tribunal’s jurisdiction, but the
instrument has not received the
ratifications needed for its entry into
force, despite the urging of the SADC
Summit.
In Mike Campbell (Pvt) LTD and 79 Others v.

Zimbabwe, Case No. SADC (T) 2/2007, Main Decision
of 28 November 2008 (Case no. 2 of 2007), a
Zimbabwe national claimed that his basic rights had
been violated as a result of the expropriation without
compensation of his private property.
See also Barry L.T. Gondo and Others v. Zimbabwe,

Case No. SADC (T) 05/2008, Main Decision of 9
December 2010, (Case no. 5 of 2008).
United Republic of Tanzania v Cimexpan

(Mauritius) Ltd and Others (SADC (T) 01/2009)
[2010] SADCT 5 (11 June 2010)
http://
www.saflii.org/sa/cases/SADCT/2010/5.html
Rule 33, an application shall state, inter alia
particulars of the Applicant, the nature of the
claim, together with a succinct statement of
facts and the relief or order sought by the
Applicant.
In Cimexpan v. Tanzania, Case No. SADC (T) 01/2009 ,

Main Decision of 11 June 2010 (Case no. 1 of 2009), the
Tribunal considered claims of torture in connection with
the applicant’s deportation.
The court determined that the applicant had not

exhausted legal remedies and that he had failed to
substantiate his claims of ill-treatment .
In resolving such cases, the SADC Tribunal has looked to

common principles of international human rights law,
rather than applying one specific human rights treaty.
WITHOUT THE SADC TRIBUNAL, “LEGITIMACY OF

SADC COMMUNIT Y IN JEOPARDY” – TANZANIAN HIGH
COURT
Tanzania’s high court has come out strongly on the

human rights implications of suspending the
Southern African Development Community Tribunal,
the regional court originally set up to consider
disputes between states as well as between
individuals and states.
In a landmark decision the court said that

without the tribunal, “the rule of law in the
internal management of SADC and its
institutions would be nothing but a pipe
dream.”
The new decision by the Tanzanian court

follows a judgment by South Africa’s highest
court finding Pretoria had unlawfully backed
the demise of the Tribunal.
The SADC Lawyers Association, that has been
helping coordinate regional challenges to the
suspension of the tribunal, has welcomed the
new Tanzanian judgment and says that
because the Presidents who supported the
suspension are no longer in power, the time
has come to consider re-establishing the
Tribunal with its original mandate.
The Tanzanian challenge was brought by

the Tanganyika Law Society, and
followed a decision by the SADC Lawyers’
Association that its member Bars across
the region should challenge the
legitimacy of their respective
government’s assent to the disbanding
of the Tribunal.
See MISCELLANEOUS CIVIL CAUSE NO.

23 OF 2014. TANGANYIKA LAW SOCIETY
vs MINISTRY OF FOREIGN AFFAIRS AND
INTERNATIONAL COOPERATION OF THE
UNITED REPUBLIC OF T ANZANIA, THE
ATTORNEY GENERAL OF THE UNITED
REPUBLIC OF T ANZANIA [S.A. LILA PJ;
A.K. MUJULIZI, J. & S.B. BONGOLE J.]
dated 4th June 2019
 The High Court of Tanzania recently ruled on the same

matter. It ruled as follows:
• The suspension of the operations of the SADC Tribunal was

inimical to the Rule of law, which is a foundational principle
of the SADC regime.
• Under the principle of separation of powers, it is premature

for the Court to rule on the legality of the process which is
still in the territory of the Executive pending presentation to
the Legislature of Tanzania.
In the absence of a functional Tribunal the legitimacy

of SADC as a Community and international personality
is in jeopardy. The Tanzanian Government should be
advised to consider a review of its position.
Pending reopening doors of the suspended SADC

Tribunal, the High Court of Tanzania has inherent
powers to entertain all adjudicative disputes between
individuals and legal persons against the Government
of Tanzania in matters arising out of the SADC Treaty.
 South Africa withdraws its Signature from the Decision to abolish the
SADC Tribunal [13 Sep 2019]
 In 2011, the leaders of the Member States of the Southern African

Development Community (SADC) decided to abolish the SADC
Tribunal; after a ruling against one of the SADC Member States in a
case involving a private applicant.
 President Zuma of South Africa supported that decision. In December

2018 the South African Constitutional Court ruled that his participation
in that decision was unconstitutional, unlawful and irrational.
 The same finding applies to his signature of the subsequent SADC

Protocol, which provides for a new Tribunal, but without the power to
hear applications by individuals. Only inter-state applications will be
entertained in SADC. The new Protocol is not yet in force.
The South African Constitutional Court invoked

International Law as well as the South African
Constitution in support of its ruling.
It found that the amendment procedures applicable to

the SADC Tribunal Protocol had been violated through
the procedure in which the South African President
participated.
The Court also held that the President lacked the

authority to sign away the fundamental right of access
to justice, provided for in the South African Constitution.
The Constitutional Court then

formulated a unique remedy: “We cannot
withdraw the President’s signature. But,
we may direct him to withdraw his
signature to the Protocol…. Whoever the
President happens to be will be directed
to withdraw the President’s signature to
the Protocol.”
Law Society of South Africa and Others v

President of the Republic of South Africa and
Others [2018] ZACC 51.
Tanganyika Law Society versus Ministry of

Foreign Affairs and International Cooperation
of the United Republic of Tanzania and the
Attorney General of the United Republic of
Tanzania, 4 June 2019.

Extraterritorial Enforcement of Human Rights

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Extraterritorial Enforcement of Human Rights

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THE UNITED REPUBLIC OF TANZANIA

LS 110: HUMAN RIGHTS AND LEGAL AID

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 1

 Composition, Legal status, Locus standi, Cause of

 in filing and prosecuting cases at EACJ and ACtHPR.

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 2

To familiarize participants with the major

To provide a basic understanding of how

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 3

If later in your professional life you are

Are you aware that regional law for the

Are you aware that the alleged victim might

Are you aware of any case(s) brought against

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 5

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 7

International Law Enforcement

The enforcement role involves ICs

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 9

ICs primarily name a state practice

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 10

ICs with administrative review

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 11

Depending on the standard of review, the

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 12

Constitutional review authority is

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 13

In the international arena, the higher

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 14

International dispute settlement

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 15

Usually the parties can choose non-

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 16

International dispute settlement

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 17

Where ICs have compulsory

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 18

International Courts Dispute Settlement Enforcement Role Administrative Constitutional

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 19

1. The East African Court of Justice [EACJ]

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 20

Procedure in filing and prosecuting cases.

Procedure for amicus

Procedure for enforcement of Judgements

 RASHID SALIM ADIY & 39,999 OTHERS v. THE ATTORNEY

Mr. Rashid Salim Adiy and 39,999 other persons (‘the

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 23

RASHID SALIM ADIY & 39,999

Mr. Rashid Salim Adiy (“the First

First Instance Judgment: Verdict

For the reasons stated earlier in this ruling, we find and

Further and in any event, it is also our finding that at

On the question of costs, Rule 127(1) of the

In the instant case, misguided as the Reference

We accordingly exercise our

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 28

APPLICATION NO. 05 OF 2019 (IN AN

CONSOLIDATED APPLICATIONS NOs.3 AND 4

In this regard, we must agree with

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 30

Having conceded that, the Respondent

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 31

“...A Division of the Court may, for sufficient

Friday, December 1, 2023 (c) 2020 Mr. Justice R.V. Makaramba 32