SA must allow access to African Court

‘The African Court on Human & Peoples’ Rights risks being under-used and receding into irrelevance. This is happening in a landscape increasingly inimical to rights and rights institutions. SA should signal to other states that it accepts independent judicial scrutiny of its human rights record as the logical end result of having helped create the African Court.’ This is the opinion of Professor Frans Viljoen from the Centre for Human Rights at the University of Pretoria, adding SA has fallen short in one key aspect when it comes to championing human rights on the continent: it has failed to sign up to accepting direct individual access to the court. Writing on The Conversation site, Viljoen notes SA formally accepted the African Charter on Human & Peoples’ Rights soon after 1994. Since then, it has made significant contributions to the charter monitoring body, the African Commission on Human & Peoples’ Rights. Viljoen notes SA was also one of the first states to accept the African Court’s jurisdiction in 2002. Today, 34 of the 55 AU member states have formally accepted the protocol, thereby agreeing to the court’s jurisdiction. However, Viljoen says SA falls short when it comes to the most crucial measure of the African Court – the acceptance of direct individual access. He notes a case by an individual or group against a state party to the charter can end up before the court in one of two ways:
* A case can reach the court indirectly, via the commission. This access route applies to all 34 states that have become party to the court protocol. However, this route has yielded a very small number of cases – three in total – being submitted to the court.
* A case can reach the court directly from an individual or NGO. But this is only possible if a state has made a declaration to accept the competence of individuals and NGOs with observer status with the commission to directly access the court. So far, the majority of cases handled by the African Court reached it along this avenue. Around 260 judgments have been delivered in respect of direct access cases.

Viljoen says of the 34 states parties accepting the court’s jurisdiction, only seven currently allow their nationals direct access to the court – Burkina Faso, Ghana, Guinea-Bissau, Malawi, Mali, Niger and The Gambia. While 12 states have made the optional declaration, five of them have subsequently withdrawn their optional acceptance of direct access to the court. While the reasons for withdrawal differ, a common thread is the aggravation of governments for being held accountable by the court for human rights violations. The consequence of these withdrawals has been a drop in the number of cases submitted to the African Court. In 2024, only 15 new cases were submitted. There were 66 in 2019. While Viljoen says it is not clear why SA has not yet accepted direct access to the court, he suggests two reasons for it to do so:
* Allowing direct access from SA courts to the African Court would serve to complement domestic human rights protection by allowing for redress and reparations beyond the national level; and
* Bolstering the effectiveness of the court is an investment in African institutions and will underscore SA’s full embrace of its African identity. If it accepts the court’s direct access jurisdiction, SA will become the AU member state with the largest population and economy to do so. Viljoen says there has never been a more opportune and important time for SA to make this declaration.

Full analysis on The Conversation site