Protocol on Establishment of African Court on Human & Peoples' Rights

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
27 June 2002
PROTOCOL ON ESTABLISHMENT OF AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS

Chairperson: Mr.Mokoena

Document Handed out:
Report on Justice and Constitutional Development on Protocol on the Establishment of the African Court on Human and Peoples’ Rights (Third Amendment Draft) [See Appendix]

SUMMARY
The Committee deferred, until further notice, deliberations on the Bill proposing the establishment of the African Court on Human and Peoples Rights due to inconsistencies. More extensive briefing and workshops were required by the Select Committee to promote understanding of  the Bill.

MINUTES
The Chair stated that the Select Committee was not as well briefed as the Portfolio Committee on the Bill. He said that it was unfair for such an important Bill to be placed before the Committee at the eleventh hour for deliberation. He noted that there was no quorum in the house and blamed it on the confusion created by the haphazard manner in which Bills were placed before the Committee for passage. He then invited member’s views on whether to proceed in view of the quorum hitch.

Mr Mkaliphi (ANC) felt it was unfair for the Committee to be denied the benefit of a thorough briefing and workshop around the Report in the same way that the Portfolio Committee had been treated. He pointed out that the Bill was one that raised some issues of sovereignty to which members need a thorough briefing to get the sense of its spirit.

Mr. Mathee (NNP) inquired if  there was a possibility of conflict between the proposed African Court and the country’s Constitutional Court rulings

Mr. Allers admitted that there was a possibility of conflict but clarified that this possibility was a very remote one. The Chief State Law adviser understood this aspect and still approved  the Bill.

Mr. Maloyi (ANC) concurred with members’ concerns that this Bill was being rushed through the house without adequate briefing. He said there were areas of conflict in the Bill which would require some investigation but that this was not possible given time constraints.

Mr. Mathee (NNP) expressed concern that should a scenario of conflict he alluded to earlier materialise, it could have serious ramifications. He added that this was so in view of the fact that the country’s Bill of Rights was far more advanced than the African Charter for Human Rights on which premises the African Court is to be established. He warned that a situation where the country’s Constitutional norms are made subservient is entirely untenable.

The Chair agreed with Mr. Mathee's sentiments that indeed, the Country’s Human Rights Bill was far ahead of most African countries, some of which did not have anything resembling a Human Rights Charter. He pointed out that these issues must be discussed in detail to conform with the country’s Bill of Rights.

Mr. Allers said that he fully understood the concerns expressed by members and pointed out that it was because of the very same concerns that a detailed report had been submitted to the Portfolio Committee. He was also in agreement that the matter called for wide consultation and discussion.

Mr. Mkhaliphi (ANC) asked about the urgency attending the Bill.

Mr. Allers explained that the African Union – the body that would replace the OAU - would be launched in July and that it was intended that South Africa should show the way by adopting the Resolution to establish the African Court so that it could be seen to lead by example.

Mr. Maloyi (ANC) enquired about the number of African countries that have ratified the Bill so far.

Mr. Allers replied that he did not know the exact number but explained that as far as he was aware all the OAU member States were signatory to the African Charter on Human Rights.

The Chair observed that there was not enough time to deliberate on the Bill. He continued that members had expressed the view that they needed more time and a thorough briefing to comprehend the purport of the Bill before they could vote on its passage. He noted that the only urgency about the Bill was its timing that had to coincide with the launch of the African Union which meant it would not be fatal to the future passage of the Bill were it to be delayed.

The Chair invited members to pass a motion to defer deliberations on the Bill. The motion was moved by Mr Maloyi and seconded by Mr. Matthee.

The meeting was adjourned.

Appendix
THIRD AMENDED DRAFT PARLIAMENT

Report of the Portfolio Committee on Justice and Constitutional Development on the Protocol on the Establishment of the African Court on Human and Peoples' Rights:

The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Protocol on the Establishment of the African Court on Human and Peoples’ Rights referred to noting that:

1.       in terms of section 167(3)(a) of the Constitution of the Republic of South Africa, 1996 (the Constitution), the Constitutional Court is the highest court in all constitutional matters. The jurisdiction of the African Court on the other hand shall in terms of article 3(1) of the Protocol extend to all cases and disputes submitted to it concerning the interpretation and application of the African Charter, the Protocol and any other relevant Human Rights instrument ratified by the States concerned;

2.       in terms of article 7 of the Protocol the African Court shall only apply to provisions of the African Charter and any other relevant human rights instruments ratified by the States concerned;

3.       in terms of article 2 of the Protocol the African Court shall, bearing in mind the provisions of the Protocol, complement the protective mandate of the African Commission, conferred upon it by the African Charter;

4.       in terms of article 50 of the African Charter the African Commission can only deal with a matter submitted to it after making sure that all local remedies if they exist have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged. In other words a case relating to the protection of human rights in terms the African Charter will have to go through our court system before it can b dealt with by the African Commission and subsequently the African Court;

5.       if adopted, the Protocol will result in a dual system of protection of human rights, one in terms of the Constitution and the other in terms of the African Charter on Human and People's Rights;

6.       it will not be possible to appeal on human rights matters from the Constitutional Court to the African Court or from the African Court to the Constitutional Court;

7.       in terms of article 5 of the Protocol only the African Commission on Hum; and Peoples' Rights, State Parties and African Intergovernmental Organisations have direct access to the African Court;

8.       in terms of article 34(6) of the Protocol access to the African Court may extended to relevant Non Governmental organisations and individuals certain respects;

9.       from a literal reading of articles 28(2) and 30 of the Protocol and comparison thereof with section 167(3) of the Constitution, there may be a potential conflict;

10.   the possibility of a conflict actually happening is remote;

11.   in terms of section 231(4) of the Constitution international agreements only become law in the Republic when it is enacted into law by national legislation;

12.   if adopted, the Protocol will actually give the South African institutions opportunity to contribute to and influence the African Court in developing home-grown African human rights jurisprudence through the richness of our own human rights culture, Bill of Rights and jurisprudence. The two parallel systems will also compliment and not infringe on the sovereignty of each other; and recommends that-

the House, in terms of section 231(2) of the Constitution, approve the said Protocol.

The Committee further resolves that if the Executive at any stage makes declaration in terms of article 34(6) of the Protocol accepting the competence of the Court to receive cases under article 5(3), such a declaration shall first be tabled in Parliament for approval.