On September 28, 2020, the African Court on Human and Peoples’ Rights (AfCHPR) announced the publication of its revised Rules of Court, which entered into force on September 25. [AfCHPR Press Release] The new Rules replace those that had been in place since June 2010. See AfCHPR, Rules of Court (1 Sept. 2020). Currently, the 2020 Rules are available in English and French, and the Court has stated its intent to publish Arabic and Portuguese versions. [AfCHPR Press Release] The Court’s counterpart, the African Commission on Human and Peoples’ Rights (ACHPR), adopted new rules of procedure earlier this year. [IJRC: ACHPR Rules]
In several respects, the new Rules borrow from the AfCHPR’s counterparts in the Inter-American and European systems, including by adopting a pilot judgment procedure. The new Rules also explicitly incorporate a number of practices or requirements that have developed over the past decade, including with regard to the Court’s Legal Aid Scheme, the Court’s application and admissibility requirements, and States’ obligations of compliance. The new Rules also aim to make the Court more inclusive and representative, by requiring gender parity and representation of different regions and legal traditions in the Court’s bureau and Registry, and by expanding the Court’s list of official languages.
The new Rules add or move many provisions, which can make it cumbersome to compare the 2010 and 2020 rules. The AfCHPR’s 2010 Rules contained 76 provisions, while the 2020 Rules contain 93. See AfCHPR, 2010 Rules of Court (2 Jun. 2010). Both sets of rules are available in searchable PDFs, however, which will help readers find the provisions they are looking for. Readers should keep in mind that some terminology has changed, though; for example, the new Rules refer to the “judges” of the Court, rather than to its “members.” The remainder of this post identifies some of the more significant changes in the new Rules of Procedure, by parts.
Part I: General
The Court’s composition, bureau, and Registry are the primary topics in Part I. Rule 2(3) now specifies that judges terms “shall be six (6) years or any other applicable period in accordance with Article 15 of the Protocol” on the Establishment of the Court. With regard to incompatibility of other activities, the new Rule 5 prohibits judges from acting as legal advisers to governments at any level, whereas the prior version only applied to “national” governments.The new Rule 6 deals with all vacancies, and states that the Chairperson of the African Union Commission will decide the effective date of any vacancy.
Rule 2(4) requires judges to “participate in the deliberations of all cases” except when “the Court determines otherwise.” (Similarly, Rule 69(2), in Part IV, requires all participating judges to vote on the adoption of judgments; they cannot abstain.) Rule 9 now gives the President of the Court discretion in deciding whether to allow a judge to withdraw from hearing a particular case.
Chapter II of Part I now provides more detail on the role of the Court’s President and Vice President, their nomination, and election. Rule 11(2) specifies that the President must commit to being based at the seat of the Court (rather than working remotely). The duties of the President now include, in Rule 14(1)(e) conducting an annual performance review of the judges.
With regard to the Registry, Rule 16(2) requires gender parity and representation of different regions and legal traditions in the composition of the Registry and requires consideration of gender and language in the appointment of Registrar and Deputy Registrar. The previous rules had set out a five-year, renewable appointment for the Registrar, but the 2020 Rules do not mention any term of appointment.
Rule 21(2)(a) now requires the Registrar to publish the “General List” of cases before the Court on its website. Similarly, Rule 21(2)(q) adds a requirement that the Registrar publish on its website the list of States Parties to the Protocol, and of those States that have accepted the Court’s jurisdiction over individual and NGO complaints. That information is now available on the Court’s homepage, with additional details on the Declaration page of its website. Note that the “Status of Ratification” table linked to from the Basic Documents webpage is out of date, and does not reflect recent withdrawals. [IJRC: Withdrawals]
Rule 21(2)(i) now also requires the Registrar to manage the Court’s Legal Aid program, and Rule 21(2)(r) requires the Registrar to maintain a list of organizations and lawyers that can provide assistance to parties before the Court. This information is now available on the Court’s website. See AfCHPR, Lists of Lawyers.
Part II: Internal Functioning of the Court
This section of the 2020 Rules of Procedure addresses the Court’s sessions and methods of work. Rule 24 now expressly allows the Court to hold virtual sessions due to “exceptional circumstances or force majeure.” Rule 26 now provides for the establishment of committees and working groups.
Rule 27 expands the list of official languages of the Court from those “of the African Union” to “Arabic, English, French, Portuguese, Spanish, Kiswahili and any other African language” and defines the working languages as Arabic, English, French, and Portuguese. This is in keeping with Article 11 of the Protocol on Amendments to the Constitutive Act of the African Union, which defines the same official languages; the Protocol has not yet entered into force, however. When any person appearing before the Court requires interpretation or translation, Rule 27(3) now provides that the Court will cover those costs.
Part III: Jurisdiction
While there are changes in the order of provisions in this section, the most significant change has to do with review of judgments. Rule 29(2)(e) allows the Court to review its own judgments, regardless of whether there is “new evidence” (as was previously required in 2010 Rule 26(1)(e)).
Part IV: Contentious Procedure
This section of the Rules largely reorganizes the content from the prior rules, but also contains important new rules on applications and admissibility requirements. It also adds new detail on the Legal Aid program, fact-finding, and communications with parties.
Rule 31(2) is more precise with regard to legal aid, authorizing the Court to provide “free legal assistance to any party at any stage of the proceedings” through its legal aid fund. Rule 32 (former Rule 30) now makes clear that the Court will not charge any fees in proceedings.
Rule 33(2) adds a reference to “special measures” the Court may request States to take in order to protect parties, witnesses, and others appearing before it. Parts 5 to 8 of Rule 41 also set out the procedure for applicants requesting anonymity.
Rule 36(4) now allows the Court to ask the Commission to conduct any necessary fact-finding or in situ investigations in cases to which the Commission is not a party.
Form and Content of Applications
The new Rules contain many new details on application requirements. Whereas the old Rule 34 only required applicants to file a “copy of the application containing a summary of the facts of the case and of the evidence,” the new rules add requirements regarding the form and content of applications. Rule 40(5) states that applicants must file their “original” application with the Registry and if they are unable to do so, must “file a certified copy, or scanned copy or electronic copy” and ensure the delivery of the original “before the date of set by the Court.” Additionally, Rule 40(3) now requires applicants to include “copies of any relevant documents” and domestic decisions related to the complaint and exhaustion of local remedies, when submitting their application.
Rule 41 now provides extensive detail on what information and documentation an application should include. It lists the specific information required, and indicates that the information “should be sufficient to enable the Court to determine the nature and scope of the Application without recourse to any other document.” Rule 41(3) requires applicants to submit copies of relevant domestic court decisions and other documents, including proof of observer status with the Commission where the applicant is a nongovernmental organization. In Rule 51(2) and elsewhere, the new Rules require parties to sign their pleadings and documents filed with the Court.
The new Rule 40(2) adds “ineffectiveness” as a second excuse for failure to exhaust domestic remedies, in addition to inordinate delay.
Rule 50 adds some language to the admissibility requirements listed in the old Rule 40. New Rule 50(2)(c) requires applications not to contain any disparaging or insulting language “directed against the State concerned and its institutions or the African Union.” Rule 50(g) clarifies that the non-duplication requirement applies to settled “cases” involving the same State(s), rather than “any matter or issues.”
Rule 48 adopts the “manifestly unfounded” language of the European Court of Human Rights to authorize dismissal of applications that are (clearly) without merit. In instances where an individual or NGO submits an application against a State that has not accepted the Court’s jurisdiction over such complaints, the Court will not register the application.
Timing and Processing
Rule 41(11) makes explicit that the “date of receipt” of any application will be the date on which the Registry receives an application form that satisfies the requirements of Rule 41; in other words, an incomplete application will not start proceedings or stop the clock for purposes of timeliness.
Regarding communication with parties, Rule 40(7) now requires the Registrar to acknowledge receipt of the application and inform the applicant of missing information or documentation “as soon as possible.” Similarly, Rule 41(10) allows the Court to request additional information, within a specified time, from the applicant. Relatedly, Rule 38(2) now requires the Court to notify applicants that they may file their applications with the Commission, when it receives applications against States that have not accepted its jurisdiction.Rule 42(1) requires the Court to transmit all pleadings “to the other party and all other relevant participants to the case” (emphasis added).
With regard to deadlines, Rule 44 changes prior Rule 37 by giving States 90 days (instead of 60) to respond to an application. Rule 44 also adds a 45-day window for the applicant to reply to the State’s response. It also imposes clearer, fixed requirements for requesting and granting extensions. Rule 45 now addresses how the Court will deal with pleadings that are filed out of time. Rules 46 and 47 establish whether and when a party may present new or amended written submissions after the State’s reply and applicant’s response. Rule 61 adds language to prior Rule 53, regarding time limits on States’ requests to intervene in a case. Rule 63(2) now allows the Court to set aside a judgment entered in default when the defaulting party shows “good cause” within a year.
On hearings, new Rule 52 allows the Court to schedule hearings without consulting the parties, and expands on prior Rule 43 regarding when it may hold hearings in camera (privately). New Rule 54 combines and modifies prior rules 44 and 47 regarding the conduct of hearings. Rule 58(2) gives parties 21 days to correct the transcript of hearings.
Rule 59 clarifies the requirements and process for adopting provisional measures (interim measures). Rule 59(1) now specifies that the Court may adopt provisional measures “in case of extreme gravity and urgency and where necessary to avoid irreparable harm to persons” and “pending determination of the main Application.” Rule 59(6) specifies that provisional measures orders “shall be binding on the parties concerned.”
Rule 65 expands the reasons for the Court to strike out an application from its list, and allows applicants to request the restoration of an application in “exceptional circumstances.”
Pilot Judgment Procedure
Rule 66 authorizes the Court to establish a “pilot-judgment procedure” where multiple applications “reveal the existence of a structural or systemic problem” in a particular State. The procedure would give priority to the pilot applications, and allow the Court to suspend (adjourn) its consideration of similar applications “pending the adoption of the remedial measures” required by the pilot judgment.
Timing of Judgment & Its Enforcement
Rule 67 now requires the Court to complete deliberations “within two consecutive ordinary sessions of the Court following the close of pleadings.”
The new Rules of Procedure add a Chapter VI on Enforcement of Decisions of the Court. New Rule 80(1) requires States to “fully comply with the decisions of the Court and guarantee their execution within the time limits set by the Court.” Rule 81 requires States to report back to the Court on their compliance, and authorizes the Court to obtain information from other sources and hold a hearing in order to evaluate compliance. Pursuant to Rule 81(4), the Court must report non-compliance to the African Union Assembly of Heads of State and Government.
Part V: Advisory Procedure
This section deals with the Court’s advisory jurisdiction. Rules 82 through 88 largely replicate the old rules 68 through 74.
Part VI: Miscellaneous
Rule 89 introduces a force majeure exception to implementation of the new Rules of Procedure.
Rule 90 states that the Rules shall not “limit or otherwise affect the inherent power of the Court” to take the action “necessary to meet the ends of justice.”
Finally, Rule 93 specifies that all pending cases will be processed according to the new Rules of Procedure, while allowing parties to make new submissions in order to comply with the Rules.
For more information on the African human rights system, visit IJRC’s Online Resource Hub. For an overview of African countries’ human rights obligations, use IJRC’s country factsheets. IJRC’s guide on exhaustion of domestic remedies analyzes the requirement to pursue local remedies, under the AfCHPR’s jurisprudence and prior Rules of Procedure. To stay up-to-date on international human rights news, visit IJRC’s News Room or subscribe to the IJRC Daily.