This is a short piece highlighting the significance of ‘observer status’ for NGOs considering bringing a case before the Court.
This site regularly refers to the important Special Declaration (see Articles 5(3) and 34(6) of the Protocol) which allows individuals and relevant NGOs with observer status to apply directly to the Court. Too often we tend to pass over the ‘with observer status’ caveat for NGOs. This caveat however is crucial for NGOs considering bringing a case before the Court. ‘Observer status’ is a separate standing granted by the African Commission on Human and Peoples’ Rights and must be applied for in addition to any in-country registration. We have seen in the recent case of Mtikila and others v. Tanzania (as well as others) that when NGOs make applications before the Court, the first thing the Court will do is enquire about the status of the NGO with the Commission. From this we can see that being registered within your own country is not enough, and applications made by NGOs without observer status will fall at the first hurdle.
How an NGO obtains observer status is set out on the Commission’s website and can be found here. The application process appears straightforward in terms of requirements if not the quantity of paperwork. The requirements and other important details are found in the Resolution on the Criteria for Granting and Enjoying Observer Status to Non-Governmental Organizations Working in the field of Human and Peoples’ Rights which can be found in full here.
The general requirements are that the NGO should (i) have objectives and activities in consonance with the fundamental principles and objectives enunciated in the OAU Charter and in the African Charter on Human and Peoples’ Rights; (ii) be organisations working in the field of human rights; and (iii) declare their financial resources.
If these general requirments are fulfilled, the NGO must provide: (i) a written application addressed to the Secretariat stating its intentions, at least three months prior to the Ordinary Session of the Commission which shall decide on the application, in order to give the Secretariat sufficient time in which to process the said application; and (ii) its statutes, proof of its legal existence, a list of its members, its constituent organs, its sources of funding, its last financial statement, as well as a statement on its activities.
The website also contains an interesting list of NGOs with observer status before the Commission, and therefore also before the Court. It is worth noting that this list includes several “rest of the world” NGOs i.e. NGOs based outside of Africa including 12 from France, 19 from the United Kingdom and 17 from the United States, including heavyweights such as Amnesty International and Human Rights Watch/Africa.
Based on the wording of the Special Declaration, these “rest of the world” NGOs appear to have the authority to bring cases relating to purple countries before the Court. This authority is potentially significant for future cases and the development of human rights protection in Africa; not only does this significantly increase the number of prospective applicants, but it also adds significant potential resources and experience. As an example, an application regarding breaches of the Charter in Ghana could be brought by Amnesty International (as long as other admissibility requirements such as exhaustion of local remedies are met). One possible wrinkle is the word ‘relevant’ contained in Article 5(3) of the Protocol (“The Court may entitle relevant non governmental organizations (NGOs) with observer status before the Commission….to institute cases directly before it…”). Whether the Court would find an international NGO such as Amnesty International ‘relevant’ to any particular country is an interesting point the Court may well have to address.
The ACtHPR Monitor is keen to post advice and tips from NGOs who have gone through the process of applying and obtaining observer status, or connect NGOs who would be willing to provide advice or mentoring to NGOs who are considering going through the same process. If you would be willing to assist please Contact Us.
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