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Material jurisdiction

Commentary

Commentary type: Procedure

Procedure: Jurisdiction

Jurisdiction: Material jurisdiction

Commentary: The Court has jurisdiction to hear all cases concerning the interpretation of the African Charter, the Protocol and any other human rights instrument ratified by the respondent state (Lohé Issa Konaté v Burkina Faso, application 004/2013, order of provisional measures, 4 October 2013 para 35; African Commission on Human and Peoples’ Rights v Libya, Merits, Application 002/2013, 3 June 2016, para 53; Actions Pour la Protection des Droit de L’homme (APDH) v The Republic of Cote D’Ivoire , application 001/2014, Judgement, 18 November 2016, para 47; African Commission on Human and Peoples’ Rights v Kenya , application 006/2012, Judgement, 26 May 2017, para 51). The only pertinent issue that the Court need to consider in ascertaining whether it has material jurisdiction in accordance with article 3(1) of the Court’s Protocol and rule 26(1)(a) of the Rules of Court is whether the application alleges violation(s) of the African Charter, the Protocol or any other human rights instrument ratified by the respondent state (African Commission on Human and Peoples’ Rights v Kenya , application 006/2012, Judgement, 26 May 2017, para 51).

The Court retains jurisdiction where the alleged violations are violations of rights protected under the Charter and other ratified human rights instruments even if the applicant does not cite the specific provisions of the Charter or other human rights instrument ratified by the respondent state which they allege to have been violated (Peter Joseph Chacha v The United Republic of Tanzania , application 003/2012, judgment, 28 March 2014 para 114; Wilfred Onyango Nganyi & 9 others v Tanzania v The United Republic of Tanzania , application 006/2013, judgment, 18 March 2016 para 57).

If the Court finds a violation of the African Charter in relation to a particular situation it will not consider violations of corresponding provisions of other human rights treaties by the state concerned (Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania, application 009/2011; Reverend Christopher R. Mtikila v The United Republic of Tanzania, application 011/2011, judgment, 14 June 2013, para 123; Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso, application 013/2011, judgment, 28 March 2014, para 157). The same applies with regard to a finding that a provision of the African Charter has not been violated when another human rights treaty guarantees the right in the same manner (Zongo, para 170). Where another treaty provides for more detailed protection the Court may consider it read together with the relevant provision of the African Charter. Thus the provision on protection of journalists in article 66(2)(c) of the Revised ECOWAS Treaty was read together with the freedom of expression provision in article 9 of the Charter in Zongo.

An application can be based on provisions of the Universal Declaration of Human Rights as there are corresponding provisions in the African Charter and other human rights treaties (Frank David Omary and others v The United Republic of Tanzania, application 001/2012, ruling, 28 March 2014, paras 73 and 76)

Date modified: Aug 30, 2017

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002/2013 The African Commission on Human and Peoples' Rights v Libya

53. With respect to the Court's material jurisdiction (ratione materiae), Article 3(1) of the Protocol provides that "the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant human rights instrument ratified by the States concerned."

Contentious cases

001/2014 Actions Pour la Protection des Droit de L'homme (APDH) v The republic of Cote D'Ivoire (Judgement)

47.Article 3(1) of the Protocol provides that "the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the State concerned".

Contentious cases

006/2012 African Commission on Human and Peoples’ Rights v the Republic of Kenya

51. The Court notes that Article 3 (1) of the Protocol and Rule 26 (1) (a) of its Rules govern its material jurisdiction regardless of whether an Application is filed by individuals, the Commission or States. Pursuant to these provisions, the materia I jurisdiction of the Court extends "to al l cases and disputes submitted to it concerning the interpretation and application of the Charter, [its] Protocol and any other relevant human rights instrument ratified by the States concerned". The only pertinent consideration for the Court in ascertaining its material jurisdiction in accordance with both Article 3(1) of the Protocol and Rule 26 (1) (a) of its Rules is thus whether an Application relates to an alleged violation of the rights protected by the Charter or other human rights instruments to which the Respondent is a Party. In this vein, the Court has held that "as long as the rights allegedly violated are protected by the Charter or any other human rights instruments ratified by the State concerned, the Court will have jurisdiction over the matter''.

Contentious cases

003/2012 Peter Joseph Chacha v The United Republic of Tanzania

114. As long as the rights allegedly violated are protected by the Charter or any other human rights instrument ratified by the State concerned, the Court will have jurisdiction over the matter. In the instant case, the Applicant alleges violation of his right to equal protection of the law and equality before the law, the right to the respect of the dignity inherent in a human being and to the recognition of his legal status, the right to liberty and security of the person and not to be arbitrarily arrested or detained , the right to a fair trial, the right to property and the right to the independence of the Courts and the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the Charter.

Contentious cases

006/2013 Wilfred Onyango Nganyi & 9 others v Tanzania v The United Republic of Tanzania

57. The Court overrules the Respondent's objection that its jurisdiction has not been invoked simply because the Applicants have only cited ongoing cases against them within the national judicial system and have not mentioned the Protocol, the Charter, or any other relevant human rights instruments ratified by the Respondent. The Court has held in previous cases involving the same Respondent, that is, Application 003/2012, Peter Chacha v United Republic of Tanzania delivered on 28 March 2014 and Application 001/2013, David Frank Omary v. United Republic of Tanzania delivered on 28 March 2014, that as long as the rights alleged to have been violated are protected by the Charter or any other human rights instrument ratified by the State concerned, the Court will have jurisdiction over the matter.

Contentious cases

009/2011 & 011/2011 Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R. Mtikila v The United Republic of Tanzania

123.The Court, having considered the alleged violations under the relevant provisions of the Charter, does not, however,deem it necessary in this case to consider the application of these treaties.

Contentious cases

013/2011 Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso - (Judgment)

157. The Court, having made the finding that the Respondent has violated article 7 of the Charter, does not need to consider the allegations made in the same vein by the Applicants pursuant to articles 2(3) and 14(1) of the ICCPR, or article 8 of the Universal Declaration of Human Rights. B) Allegation on the violation of the right to equal protection of the law and to equality before the law

Contentious cases

013/2011 Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso - (Judgment)

170. In substance, Article 14 (1) of the ICCPR guarantees in the same manner as article 3 of the Charter the right to equality, especially before Courts and tribunals. The Court having ruled on the alleged violation in relation to article 3 of the Charter, does not deem it necessary to make a ruling on the same allegation in relation to article 14 (1) of the ICCPR.

Contentious cases

001/2012 Frank David Omary and others v The United Republic of Tanzania

73. The Court recognizes however that although the Declaration is not a treaty that should be ratified by States for it to enter into force, it has attained the status of customary international law and a grund-norm. 1 It represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone, and that everyone is born free and equal in dignity and rights.2 It was proclaimed as the common standard of achievement for all peoples and all nations, and over the years, has inspired the development of human rights instruments at national, regional and global levels. One such instrument is the Charter. Article 60 of the Charter empowers the Court to "draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organizatio t-Afr" an Unity, the Universal Declaration of Human Rights, ... ".

Contentious cases

001/2012 Frank David Omary and others v The United Republic of Tanzania

76. The Court notes that all the rights alleged by the Applicants to have been violated by the Respondent, are guaranteed in the Charter, notably: the right not to be discriminated against (Article 2 and 3 ) , the right to an effective remedy (Article 7), the right to work and fair remuneration (Article 15), the right to life and personal integrity (Article 4); and with respect to the International Covenant on Economic, Social and Cultural Rights (ICESCR) which the Respondent ratified on 11 June 1976, the right to an adequate standard of living is guaranteed under Article 11.

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