Bridging the gap in individual access to the African Court : the role of the African Commission

Abstract

This mini-dissertation explores how the African Commission on Human and Peoples’ Rights can effectively bridge the growing gap in individual access to the African Court on Human and Peoples’ Rights. The Court was established to complement the protective mandate of the African Commission and provide binding judicial remedies for human rights violations, yet most Africans remain unable to access it directly because their governments have not deposited the optional declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment on an African Court. The research adopts a qualitative doctrinal methodology which analyses legal instruments such as the African Charter, the Protocol, the 2010 and 2020 Rules of Procedures of the African Commission and African Court, alongside relevant case law and scholarly literature. The findings reveal that while Article 5(1)(a) of the Court Protocol empowers the Commission to refer cases to the Court on behalf of victims, this mechanism has been severely underutilized, with only three case referrals to date. The study further finds that the replacement of Rule 118 (2010) with Rule 130 (2020) of the Commission’s Rules of Procedure has narrowed the scope for referrals, restricting them to the pre-admissibility phase and thereby weakening the principle of complementarity that underpins the African human rights system. A comparative analysis with the Inter-American system demonstrates that strategic and structured referrals can significantly enhance access to justice and institutional synergy The study concludes that revitalizing the Commission’s referral function through clearer procedural guidelines, enhanced institutional capacity, and renewed political will is essential to preserve the African Court’s existence amid declining state acceptance of individual access. Strengthening this mechanism will ensure that the African human rights system remains genuinely accessible to all Africans and that the promise of justice enshrined in the African Charter is effectively realized.