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LAH372 Topic 8 Practice Questions
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TOPIC 8 ACTIVITY – CONTENTIOUS JURISDICTION
• Explain whether the African Court on Human and Peoples’ Rights has jurisdiction to
hear the cases described in the scenarios below. Your answer for each scenario should
cover all aspects of the Court’s jurisdiction – you must explain whether personal,
substantive, as well as temporal jurisdiction are present.
• How to answer:
• Do each aspect separately
• First, state the applicable legal principle/s
• Second, apply the principles to the facts
• Third, conclude whether the aspect of jurisdiction is present
• Finally, at the end, once you have dealt with all three aspects, conclude whether
jurisdiction in general is present.
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TOPIC 8 ACTIVITY SCENARIO 1
• Republic of Zambezi ratified the Protocol to the African Charter on Human and Peoples’
Rights establishing the African Court on Human and Peoples’ Rights (AfCHPR) on 1
January 2015. On 1 March 2016, Zambezi deposited a declaration under Article 34(6) of
the Protocol, accepting direct access to the Court by individuals and NGOs.
• In 2023, an individual from Zambezi, Ms. Amina, filed a case directly before the AfCHPR
against the Zambezian government. She alleges that in 2020, the government forcibly
evicted her community from ancestral land without compensation or alternative
housing to make way for a mining project. The evictions allegedly violated Article 14
(right to property) and Article 16 (right to health) of the African Charter, as well as
Article 15 of the Protocol to the African Charter on the Rights of Women in Africa
(Maputo Protocol), which Zambezi ratified in 2010. The evictions are ongoing, with the
community still displaced as of 2023.
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TOPIC 8 ACTIVITY SCENARIO 1 – MODEL ANSWER (1)
1. Personal Jurisdiction
Legal Principles: For the Court to have personal jurisdiction:
1. The respondent must be a state party to the Protocol to the African Charter on Human and
Peoples’ Rights.
2. For direct access by individuals or NGOs, the respondent state must have deposited a
declaration under Article 34(6) of the Protocol, accepting such access.
Application to the Scenario:
• In the scenario, the Republic of Zambezi ratified the Protocol on 1 January 2015, so it is a
state party to the Protocol and a permissible respondent.
• In the scenario, Zambezi deposited an Article 34(6) declaration on 1 March
2016, so individuals like Ms. Amina can bring cases directly against it.
• In the scenario, Ms. Amina (an individual) filed the case directly against Zambezi, so the
requirement for direct access under Article 34(6) is satisfied.
• Conclusion: Personal jurisdiction is present.
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TOPIC 8 ACTIVITY SCENARIO 1 – MODEL ANSWER (2)
2. Substantive (Material) Jurisdiction
Legal Principle: The Court’s substantive jurisdiction covers disputes involving:
1. The interpretation or application of the African Charter, the Court’s Protocol,
or other human rights instruments ratified by the respondent state.
Application to the Scenario:
• In the scenario, Ms. Amina alleges violations of Article 14 (right to property)
and Article 16 (right to health) of the African Charter, so these claims fall
within the scope of the Charter, which Zambezi has ratified.
• In the scenario, she also cites Article 15 of the Maputo Protocol (right to
sustainable development), so this instrument is applicable because Zambezi
ratified it in 2010 (before the alleged violations).
• In the scenario, the claims relate to forced evictions and displacement, so they
directly involve the interpretation and application of these ratified instruments.
• Conclusion: Substantive jurisdiction is present.
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TOPIC 8 ACTIVITY SCENARIO 1 – MODEL ANSWER (3)
3. Temporal Jurisdiction
Legal Principle: The Court has temporal jurisdiction over acts or facts
occurring after the Protocol entered into force for the respondent state (i.e.,
post-ratification). An exception exists for continuing violations (acts that
began pre-ratification but persisted afterward).
Application to the Scenario:
• In the scenario, Zambezi ratified the Protocol on 1 January 2015, so the
critical date for temporal jurisdiction is 2015.
• In the scenario, the forced evictions began in 2020 (after ratification) and are
ongoing as of 2023, so the alleged acts occurred entirely post-ratification.
• Even if the evictions had started before 2015 (which they did not), in the
scenario, the community remains displaced as of 2023, so this would qualify
as a continuing violation, triggering jurisdiction over the post-2015 period.
• Conclusion: Temporal jurisdiction is present.
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TOPIC 8 ACTIVITY SCENARIO 1 – MODEL ANSWER (4)
Final Conclusion
• All jurisdictional requirements (personal, substantive, and temporal) are
satisfied. The African Court on Human and Peoples’ Rights has
jurisdiction to hear Ms. Amina’s case.
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TOPIC 8 ACTIVITY SCENARIO 2
• Republic of Mwamba ratified the Protocol to the African Charter on Human and
Peoples’ Rights (establishing the African Court) on 1 June 2020. However, Mwamba
has not deposited a declaration under Article 34(6) of the Protocol, meaning it does
not accept direct access to the Court by individuals or NGOs. Mwamba is a party to
the African Charter on Human and Peoples’ Rights, but has not ratified the African
Charter on the Rights and Welfare of the Child (ACRWC).
• In 2023, a regional NGO filed a case directly before the African Court against
Mwamba. The NGO alleges that since 2018, the Mwamban government has been
systematically expelling children from minority ethnic groups from public schools,
violating Article 11 (right to education) and Article 3 (non-discrimination) of the
African Charter on the Rights and Welfare of the Child (ACRWC).
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TOPIC 8 ACTIVITY SCENARIO 2 MODEL ANSWER (1)
1. Personal Jurisdiction
Legal Principle: For direct access by NGOs or individuals, the
respondent state must have:
[Link] the Court’s Protocol, and
[Link] an Article 34(6) declaration allowing direct access.
Application to the Scenario:
• In the scenario, Mwamba ratified the Protocol in 2020, so it is a
state party to the Protocol.
• However, Mwamba has not deposited an Article 34(6)
declaration, so NGOs cannot file cases directly against it.
• Conclusion: Personal jurisdiction is not present.
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TOPIC 8 ACTIVITY SCENARIO 2 MODEL ANSWER (2)
2. Substantive (Material) Jurisdiction
Legal Principle: The Court’s substantive jurisdiction covers disputes involving
the ACHPR, the Court’s Protocol, or other human rights instruments
ratified by the respondent state.
Application to the Scenario:
• In the scenario, the NGO cites violations of the ACRWC (right to education
and non-discrimination).
• However, Mwamba has not ratified the ACRWC, so the Court cannot
adjudicate claims under this instrument.
• While Mwamba is bound by the ACHPR (which also protects non-
discrimination and education in Articles 2 and 17), the NGO’s claims explicitly
rely on the ACRWC, which is irrelevant here since Mwamba is not a party to it.
• Conclusion: Substantive jurisdiction is not present.
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TOPIC 8 ACTIVITY SCENARIO 2 MODEL ANSWER (3)
3. Temporal Jurisdiction
Legal Principle: The Court has temporal jurisdiction over:
[Link] occurring after the Protocol entered into force for the state, or
[Link] violations that began pre-ratification but persisted post-
ratification.
Application to the Scenario:
• In the scenario, Mwamba ratified the Protocol in 2020. The expulsions
began in 2018 (pre-ratification) but continued until 2023.
• Since the policy of expelling children remained in force post-2020, this
constitutes a continuing violation. The Court can exercise
jurisdiction over the post-2020 period.
• Conclusion: Temporal jurisdiction is present.
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TOPIC 8 ACTIVITY SCENARIO 2 MODEL ANSWER (4)
Final Conclusion
• While temporal jurisdiction exists due to the continuing violation,
the absence of personal and substantive jurisdiction means the
Court cannot hear this case.
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QUESTIONS ?
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THANK YOU
ENKOSITHANK YOU
ENKOSI
RE A LEBOGA
RE A LEBOGA
DANKIE
DANKIE