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submission as an applicant, the Commission alleged that violent suppression of
demonstration by aerial bombardment and excessive use of heavy weapons and
machine guns against the population resulting in death and injuries amounts ‘to
serious violations of the right to life and to the integrity of persons, freedom of
expression, demonstration and assembly.’142 The Court ordered provisional
measures against Libya on its own motion as the Commission did not make a
request to that effect.143
As long as direct access to the African Court by individuals and NGOs is
limited and the Commission’s referral of cases remains discretionary, the
solution to the massive backlog before the African Court is a distant possibility.
Even more so, individuals and NGOs may bring cases that have already been
decided by subregional courts to the African Commission with the hope of
accessing the African Court. One may also optimistically assume that many
African states will make declarations to allow individuals and NGOs to access
the African Court. Under either scenario, there would be pressure on the
resources of the African Court and the African Commission.
Africa should thus prudently use its regional human rights institution and
scarce resources. Africans need to learn a lesson from the European Court of
Human Rights, which has become ‘a victim of its own success’ in recent years
as it ‘faces a docket crisis of massive proportions.’144 Narrowing the
admissibility criteria has been taken as one of the steps to reform the European
Court.145 It is, therefore, submitted that the African Commission and the African
Court should not admit cases decided by subregional courts because such cases
unnecessarily consume their scarce time and resources.
Any assumption that sub-regional courts might be subject to more local
interests and open to manipulation is not supported by evidence. This
assumption is not plausible because experience, on the contrary, shows that
neighbouring countries are more concerned about human rights violations at
their doorsteps. in fact, African governments with records of human rights
violations rather incline towards opposing the human rights jurisdiction of
subregional courts. These courts have been a challenge to states in the
subregions. As evidenced by restructuring of East African Court of Justice and
suspension of the SADC Tribunal, various African states are reacting to the
42
Ibid, para 2.
para 9.
144 Laurence R Helfer (2008), ‘Redesigning the European Court of Human Rights:
Embeddedness as a deep structural principle of the European human rights regime’
The European Journal of International Law 125, Vol. 19, p. 125.
145 Philip Leach (2009), ‘On reform of the European Court of Human Rights’
European Human Rights Law Review 725, Vol. 6, p. 728.
143 Ibid,