272
Mizan Law Review
Vol. 6 No.2, December 2012
Conclusion
African Human rights architecture has become substantially different from other
regions of the world since subregional courts have ventured into human rights
matters.207 Human rights mandate of these courts is now clear from their
constitutions and decisions although such decisions have had bad consequences
for the courts in some instances. However, the relation of subregional courts
with the African Commission and the African Court is not clear. In particular, it
is not clear whether cases decided by subregional courts are admissible before
the African Commission or the African Court.
Cases decided by subregional courts have not yet been submitted to the
African Commission or the African Court. The main reason seems to be that the
involvement of subregional courts in human rights matters is a recent
phenomenon and the number of cases entertained by these courts is very few. As
a result, the African Commission or the African Court has not decided on the
admissibility of cases from subregional courts. Still, Yogogombaye v Senegal
hints that such submission is inevitable and will be made in the near future.
Consideration or revision of subregional courts’ decisions by the African
Commission or the African Court might have advantages such as ensuring
uniform interpretation of the African Charter. However, the legal basis for
referring cases from subregional courts to the African Court or the African
Commission is shaky. There is not sufficient legal basis for establishing
hierarchical structure between the continental human rights bodies and
subregional courts.
Admitting cases that have already been decided by subregional courts would
have repercussions. it would overburden the African Commission and the
African Court as these continental human rights bodies have little time to deal
with cases. it would put the defendant state in a difficult position, as the
decisions of these courts are final according to treaties establishing them. it
would result in trying the defendant states twice by international institutions for
the same violation. It would contradict the principles of res judicata. It would
contradict some decisions of the African Commission. Therefore, the African
Commission and the African Court should not admit cases that have already
been decided by subregional courts.
_________ ■
207
The ECOWAS Community Court of Justice has clear human rights mandate. The
SADC Tribunal ruled that it has human rights mandate. The East African Court of
Justice upheld human rights despite suspension of its human rights jurisdiction.