Abstract:
According to the Protocol to the African Charter on Human and Peoples’ Rights establishing
the African Court on Human and Peoples’ Rights, the main function of the Court is to complement
the protective mandate of the already existing African Commission on Human and
Peoples’ Rights. Thus, complementarity was introduced into the framework of the African
human rights system. Since then, the concept of complementarity has also been brought into
play in the Protocol to the Statute of the proposed African Court of Justice and Human Rights.
Although the interim rules of procedure of the Court and of the Commission have sought to
give meaning to the concept of complementarity, there is still very little understanding of
how it will pan out in the system. Questions abound as to the exact implication it would have
on the existing mechanisms of the Commission. Almost nothing has been said or written
on its impact on the African Committee of Experts on the Rights and Welfare of the Child.
Against this background, this article argues that complementarity in the African human
rights system can be applied positively by adopting a normative approach that allows for the
prescription of what the system’s supervisory institutions should do and how they should
relate to each other in their work. The article argues further that the justifications for the
introduction of judicial organs can also be employed to prescribe complementary functions for
each supervisory institution. It concludes that applying complementarity positively would
require encouraging each institution to focus on its strengths with a view to strengthening
the overall effectiveness of the system.
