“Recognition” by the African Union as a locus standi requirement in advisory opinions before the African Court: An analysis of NGOs’ access to justice under the African regional human rights system

  • Annika Rudman

The contributions of civil society, through public interest litigation, is an important mechanism to protect, promote and fulfil the rights elaborated upon in the proliferation of Bills of Rights in African constitutions as well as in regional human rights instruments. Used to advocate for social justice and social change, public interest litigation often advances the cause of disadvantaged groups without the capacity to challenge the injustice done to them. Therefore, it is an essential component of the right of access to justice, both domestically and regionally. This chapter focuses on how Non-Governmental Organisation (NGO) participation at the African Court on Human and Peoples’ Rights (Court or African Court) has been diminished by narrowly interpreting the locus standi requirement of NGOs to hinge on the recognition by the African Union (AU) Commission; importantly, as argued in this chapter, relocating a principally legal issue to a political entity namely the AU Executive Council. This analysis furthermore relates to the broader question of whether the AU, through its member states, is currently attempting to dismantle its human rights-related accountability mechanisms altogether. Against the backdrop of the austere conditions laid down in articles 5(3) and 34(6) of the Court Protocol, barring most NGOs from directly approaching the African Court in contentious matters, the main objective of this chapter is to analyse the premises on which the African Court based its decisions in the Request for Advisory Opinion by Socio-Economic Rights and Accountability Project (SERAP) and the Request for Advisory Opinion by the Centre for Human Rights of the University of Pretoria and the Coalition f African Lesbians (Coalition of African Lesbians) to deny access to the advisory process. To this end, this chapter aims to explore the nature of Article 4(1) of the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s
Rights and its relation to the rules and practices of the AU Commission. To provide some context the chapter offers a brief insight into the importance of public interest litigation on the regional level and the centrality of NGO participation in this regard. The chapter further sets out the feasibility of public interest litigation before the African Court by interrogating different ways of accessing the
court, expressly focusing on the advisory jurisdiction and the outcomes in SERAP and Coalition of African Lesbians.

Keywords: Public interest litigation; locus standi; advisory opinion; access to justice; African Court on Human and Peoples’ Rights; African Union Commission; African Commission on Human and Peoples’ Rights

Speculum Juris Volume 35
Issue : 
Issue 1