State Parties' Withdrawal of Direct Access to African Court of Human and Peoples Rights: The Need to Reinvigorate Complementarity

Abstract

This article analyzes the implications of the recent withdrawals of the declaration under article 34 (6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on African Charter on Human and Peoples’ Rights (African Court Protocol) on the activities of the Court and provides plausible recommendations. It argues that implications of the withdrawals include a decrease in the number of cases reaching the Court, compliance problems with judgments of pending cases, negative effect on the legitimacy of the Court, and more state parties being discouraged from accepting direct access declaration. As a solution to curb the impact of the withdrawals and in general, to improve the effectiveness of the African human rights system, the article suggests that there is a need for the purposive application of the complementarity relationship between the African Commission on Human and Peoples’ Rights and the Court. Accordingly, the Commission needs to adopt a duty-based but rebuttable referral approach for cases of non-compliance with its recommendations. It should develop purposive referral practices and refer cases to the Court frequently as this will help solve the challenges that arise from the recent withdrawals.