The Prohibition of Torture and Ill-treatment in the African Human Rights System:
A HANDBOOK FOR VICTIMS AND THEIR ADVOCATES
and these bodies are able to adjudicate on violations of international human rights
treaties in addition to the African Charter.307
Article 56(7) stipulates that complaints should not have been ‘settled by the States
involved in accordance with’ the UN Charter, the African Charter and the AU
Constitutive Act. Rule 93(2) of the Commission’s Rules of Procedure further obliges the Secretariat of the Commission to give in any case ‘an indication that the
complaint has not been submitted to another international settlement proceeding’.
In other words, communications may be addressed to two or more bodies simultaneously, but only if no human rights body has yet finalised (‘settled’) the matter.308
Several factors may determine the choice of forum, including requirements of
standing and access, the probable duration of the proceedings, the extent to which
domestic remedies have been exhausted, the case strategy, the resources available
to the author and the legal questions at issue. The African Commission would
be preferred, for instance, if the party instituting the case is not necessarily the
victim or acting on the instruction of the victim. This does not necessarily mean
that victims do not go to the African Commission in their own name or will not be
successful before it. Rather, it is because standing requirements are much more
generous under the African Charter than under many other international instruments. Similarly, the ECOWAS Court of Justice and the EAC Court of Justice may
be the preferred forum for victims in States falling under the jurisdiction of these
bodies as their admissibility requirements do not include exhaustion of domestic
remedies.
The African Commission may conduct oral proceedings to hear arguments and live
testimony. Respondent States are in most cases represented by their own lawyers
and diplomatic agents at these hearings. A live hearing provides an opportunity
to engage the respondent State in resolving the issues, but may also be expensive
and time-consuming because of travel and associated costs. By contrast, the proceedings before the UN human rights bodies are conducted exclusively in writing,
which is more affordable and time-efficient.
The African Commission has a more extensive set of rights and guarantees than
the other systems of human rights supervision to which African States subscribe,
and parties seeking pronouncements on economic, social and cultural rights may
find it more adapted to a flexible case strategy. Ultimately, parties seeking to introduce a human rights complaint will be guided by their prospects for success
and full remedies.
307 See Part A, Section VI above for more detailed information on the sub-regional courts of justice.
308 See, e.g., ACHPR, Haregewoin Gebre-Sellassie & IHRDA (on behalf of former Dergue Officials) v. Ethiopia,
Comm. No. 301/05, 52nd Ordinary Session (7 November 2011), paras. 114-117.
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