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Complementarity between the Commission and Court

3.1 Referral of cases

  • Cross-referral of cases between the Commission and the Court is a dominant feature of the complementary relationship between the two institutions. The procedure for cross-referrals was adopted in 2010 with the harmonisation of the rules of procedure of the two institutions. The experiences of all the first 3 cases referred to the Court served to highlight the technical inadequacies and practical uncertainties in referring cases to the Court. Among others, it was initially erroneously thought that one aspect of a case could be referred to the Court while the Commission continues adjudication of the rest. The roles of the original complainants and the victims who submitted the complaint to the Commission was unclear. In the absence of a structured working relationship with the original complainants, it was also realised that there was no mechanism for the Commission to collect additional evidentiary materials or to verify the evidence submitted by the original complainant. The Commission was also wary about lack of resources for attending oral hearings, which are becoming a common feature of the Court’s modus operandi. Owing to the technical inadequacies and these practical challenges, one of the three cases (Application 004/11 – ACHPR (Arab Spring) v Libya) was thrown out for failure to diligently prosecute. This outcome gravely eroded the Commission ’s own confidence and resolve to refer and prosecute cases before the Court. 
  • The project’s intervention with respect to referrals entailed analysis of the existing legal framework to identify problematic areas, as well as the practical challenges faced by the Secretariat. As a solution, and with a view to facilitating referral of more cases, the project team of three experts spearheaded the development of Guidelines on Referral of Cases, stipulating: the factors to be considered and the practical steps to be taken when referring and prosecuting cases before the Court as well as clarifying the roles of the Commission/Commissioners, original complainants, experts and witnesses; and the need to allocate funds for oral hearings as necessary. The experts’ team also made suggestions on how to implement the relevant rules of procedure concerning referral of cases which rules have provided clarity and common understanding between the two institutions on the cross-referral of cases.
  • Simultaneously there has also been on-going dialogue between the two institutions to resolve problems hindering the cross-referral of cases in the context of the complementary relationship. The team of three experts has contributed by facilitating this dialogue through research and provision of legal opinions on the attendant issues. With these efforts the main technical and practical issues hindering referral of cases have been ironed out. Subject to whether a State impleaded before the Commission is a party to the Protocol establishing the Court, the stage is set for smooth referral of cases.

3.2 Prosecution of pending cases

  • Application 006/12 – ACHPR (Ogiek) v Kenya: This case was brought to the Commission by the Minority Rights Groups and others non-governmental organisations on behalf of members of the Ogiek indigenous community living in the Mao forest in Kenya mainly for their expulsion from lands on which they had lived for generations. The Commission referred the matter to the Court in 2012, after the Respondent state failed to comply with its request for interim measures. In March 2013, the Court issued an order for provisional measures. In November 2014, the Court heard the merits of the case. In March 2015, having deliberated on the merits, the Court initiated an amicable settlement process.
  • Application 002/13 – ACHPR (Saif Gadafi) v Libya: This case was filed before the Commission in 2012 by a lawyer representing Mr. Saif Gadafi for the violation of the latter’s fair trial rights. In January 2013, the Commission referred the case to the Court, requesting for provisional measures. In March 2013, the Court issued the measures. The measures were however not complied with. The Commission then proceeded to file several submissions, the latest being a request made on 15 May 2015 for the Court to issue a default judgment following the Respondent state’s failure to enter defense.
  • The project contributed greatly to the efficient prosecution of cases referred to the Court, through timely drafting, and submissions of pleadings, and other applications on both procedural and substantive issues. The legal experts implementing the project either contributed to or headed the legal teams of the Commission prosecuting the cases, by providing technical legal support to the Commissioner Rapporteurs in charge of the cases.Within the context of complementarity, the Commission may be requested by the Court to present submissions on any request for an advisory opinion filed by any of the entities permitted to do so. The project team of experts conducted research and prepared the Commission’s submissions on a request for an advisory opinion filed to the Court by the African Committee of Experts on the Rights and Welfare of the Child (The Committee of Experts) on whether the Committee can submit cases to the Court.
  • Within the context of complementarity, the Commission may be requested by the Court to present submissions on any request for an advisory opinion filed by any of the entities permitted to do so. The project team of experts conducted research and prepared the Commission’s submissions on a request for an advisory opinion filed to the Court by the African Committee of Experts on the Rights and Welfare of the Child (The Committee of Experts) on whether the Committee can submit cases to the Court.
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