More Questions than Answers? Advisory Opinions Before the African Court

 

*** UPDATE***

I hope you enjoy reading the following post, first published on 13 December 2017.  I have received an overwhelmingly positive response to this piece, mostly asking how African NGOs can now obtain either observer status or sign a memorandum of understanding with the African Union. With this in mind, I have now written to the African Union in my capacity as founder of this website and as a member of the African Court’s List of Counsel (pro bono), to see what further information it can provide. If and when I receive a response that I can share, I will post it here. In the meantime enjoy the post! OW (12 January 2018)


In this post, I want to review the African Court’s recent decisions on advisory opinions, and the rather ambiguous situation we now find ourselves in.

For context, many readers will be familiar with the African Court’s power to consider applications from individuals, NGOs, the African Commission (or another African Union member state in theory) alleging that a member state has violated the African Charter or other international human rights instruments. These applications take the form of “X v. Member State” and are referred to on the African Court’s website as “contentious proceedings”. But the African Court has another less examined role; the power to issue advisory opinions. This power is found in Article 4 of the African Court Protocol. These applications might rightly be considered as non-contentious, since they are not against a member state per se, but rather an application to the African Court seeking to clarify a matter of law, or perhaps to seek the African Court’s position on a certain issue.

The ACERWC used the advisory opinion route to seek clarification from the African Court on its status. Photo Credit: acerwc.org

This advisory opinion power has been used sparingly. In 2014 the African Committee of Experts of the Rights and Welfare of the Child (ACERWC) took this avenue to ask the African Court whether it fell within the definition of “African Intergovernmental Organizations” that can submit cases under Article 5(e) of the African Court Protocol. In its Advisory Opinion the African Court confirmed that indeed it was an intergovernmental organization, and that it could indeed bring cases- a very important development indeed.

In September this year however the African Court issued four decisions on requests for advisory opinions that severely limit those who can make use of this avenue. These decisions were all rendered on 28 September 2017 (Association Africaine de Defense des Droits de l’Homme, The Centre for Human Rights, Federation of Women Lawyers Kenya, Women’s Legal Centre, Women Advocates Research and Documentation Centre, Zimbabwe women Lawyers Association, The Centre for Human Rights, University of Pretoria (CHR) & The Coalition of African Lesbians (CAL), and Rencontre Africain pour la Défense des Droits de l’Homme (RADDHO)).  In all four cases, NGOs were hoping to engage the African Court on various issues of human rights law. I am not proposing to go into the issues themselves since, for the reasons set out below, the African Court never got to consider the merits, but the decisions do set out the issues in a fair amount of detail, if readers would like to read up on them.

For the purposes of this post, what was important is that in all four cases the African Court said the same thing; in order for an NGO to have standing to request an advisory opinion, the NGO must be recognised by the African Union. Crucially, observer status before the African Commission on Human and Peoples’ Rights is not enough. This tranche of decisions is nothing new, since it follows the May 2017 SERAP decision, but what these four decisions have done is to solidify the African Court’s position with little prospect of movement in the foreseeable future.

Given the importance of these four decisions, alongside the SERAP decision, it’s worth looking at the issue a little more closely. Article 4(1) of the African Court Protocol lists four types of entities that can bring a request for a advisory opinion before the African Court: (1) Member States; (2) the African Union; (3) any of its organs; and (4) any African organisation recognised by the African Union.

All the applicants in the latest batch of cases were NGOs, and they all argued that they fell within the fourth category, as “African organisation[s] recognised by the African Union” and were therefore entitled to request an advisory opinion from the African Court. The African Court broke this term down into three sections: (1) “African”; (2) “Organisation”; and (3) “recognised by the African Union”. The African Court saw little problem with the “African” element; NGOs registered in Africa, and working on African issues seem to generally fulfil this. It also held that the term “organisation” could indeed include NGOs as well as intergovernmental organisations. It all came down to the third part, “recognised by the African Union”.

The African Court has now made its position on Article 4 of the African Court Protocol clear.

In all four cases, the NGOs sought to interpret the term in a wide sense, arguing that since they had observer status before the African Commission they satisfied this definition. Put simply, the African Commission is an African Union organ, ergo any NGO with observer status before the African Commission is “recognised by the African Union”.

Not so said the African Court. It found that observer status before the African Commission was not the same as recognition by the African Union. It considered that these are two different matters, and that obtaining the former cannot equate to the latter. These decisions, and the SERAP decision before it, can therefore be seen as the African Court interpreting the phrase “recognition by the African Union” narrowly. Whatever the pros and cons of this interpretation, the reality is that the position is now clear and is unlikely to change in the near future.

Now, the big question is, how does one gain ‘recognition from the African Union’? This is where things become a little less clear. In the SERAP decision, followed in these latest four decisions, the African Court stated that recognition of NGOs by the African Union is through the granting of Observer Status or the signing of a Memorandum of Understanding between the African Union and those NGOS (SERAP Decision, para. 64). But I cannot find anything to suggest how this can be done. I managed to find a 2005 AU Executive Council memo that mentions observer status before the African Union here (see paras. 45-50) but apart from this I have yet to find anything concrete.

The ability to petition the African Court for advisory opinions is crucial. It allows NGOs to approach the African Court on important issues without the need to satisfy prohibitive access issues. It does away with the contentious nature of more familiar X v. Y applications against specific member states. In short, it has a vital role to play. The African Court has chosen to interpret the key phrase on recognition before the African Union narrowly, and there is not much that can done about this right now. What must be done now is determine as quickly as possible how NGOs can comply with the requirements the African Court has set out- namely how to get Observer Status or sign a Memorandum of Understanding with the African Union. The problem is, there seems to be no information on how to do this. Any readers who can help shed light on how NGOs can be granted such status with the African Union are encouraged to contact me and I will be happy to update this post or put up a new guest post with the information. This issue is important and clarity is required sooner rather than later, lest NGOs lose this important avenue to approach the African Court.

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