South Africa must urgently act to allow access to the African Court

Mail & Guardian

19-05-2025

Only 34 states have ratified the protocol, and only seven have deposited the declaration allowing nationals to submit cases directly to the African Court.
It has been 25 years since South Africa ratified the
Thirty-four states have ratified the protocol, and only seven states have deposited the declaration allowing nationals to submit cases directly to the African Court. These states are Burkina Faso, Ghana, Guinea-Bissau, Malawi, Mali, Niger and The Gambia.
In 2024,
While the constitutional court has tried to adjudicate human rights violations internally and other broader constitutional matters, some human rights matters may be delayed for hearing because of the burden of adjudication solely vested in the constitutional court.
South Africa needs to deposit the declaration under Article 34 (6) of the protocol. Looking into the achievements of the case of the
Centre for Human Rights,
Access to justice is critical to promoting and protecting human rights in Africa. When the protocol was established, it aimed to ensure that state parties can access the African Court for the benefit of their citizens.
First, a state can bring the case before the African Court if it has ratified the court protocol. Second, an organisation of a state party can bring a case to the African Commission only if it has observer status; the commission can refer the matter to the court. Last, an organisation or individual can bring the case directly to the court if a state has declared under
Neither South African organisations nor citizens can bring the case directly to the court because the government has not submitted a declaration allowing citizens direct access to the court.
Filing the declaration will not merely allow citizens and human rights organisations direct access to court, but will show South Africa's commitment to promoting and protecting the human rights of its citizenry at the regional level. This will display South Africa's willingness to collaborate with other African states to build strong human rights systems.
South Africa has a strong record for championing socio-economic rights in the region. Submitting the declaration before the African Court would potentially sustain its relevance in the African human rights system. Moreover, to declare a willingness to learn broadly from other human rights jurisprudence. Professor Frans Viljoen in
South Africa's identity lies not only in its people, culture, ethnicity, and diversity but also in its human rights systems. While the country is not unique in trying to address human rights issues, its disconnection from African human rights systems is becoming increasingly apparent. Submitting the declaration will help the country rebuild its identity and preserve its status of defending human rights, while restoring its relations under the African Human Rights Systems.
Individuals and NGOs lack direct access to the court due to not filing a declaration under 34(6) of the article, which infringes on the human rights framework, including access to justice for all. It deprives people of adequate knowledge about the court and reduces the court's accessibility to hear matters first-hand.
Allowing citizens and organisations direct access to the court would make the court's work more visible and known to citizens. Submission of the declaration would raise public awareness about the existence, functions, and accessibility of the African Court.
One significant way to ensure that people are included in the African human rights system is to guarantee the right to access justice. As a state party to the African Charter, South Africa should ensure that people have access to justice, including in the African Court. Notably, while national courts have a broad jurisdiction, which requires sufficient capacity to protect human rights, the African Court will work as a complementary pillar to the protective measures of the national courts when remedies have been exhausted or unavailable.
South Africa takes pride in ensuring justice to its people through an inclusive and accessible judicial system. Non-deposition of the declaration is a drawback of the efforts made to ensure that justice is accessible to South Africans. It also creates a gap between other member states who may be interested in listening to first-hand experiences of violations that affect South Africans. The reliance on state authority to be the voice and mediator of South African citizens reinforces a 'pick and choose' attitude on matters of human rights to be brought before the African Court.
NGOs have played a crucial role in South African human rights history. Therefore, giving direct access to NGOs would strengthen human rights protection on the continent while enhancing government accountability for any violations at the regional level. This could lead to more respect for human rights and improve the state's legal and policy framework.
The direct involvement of NGOs in the African Court could bring international attention to human rights issues in South Africa. It would strengthen the role of human rights organisations in advocating for reform and catalyse global solidarity and support for human rights causes in South Africa.
Take, for instance, the case of
The South African state must pursue its obligations to protect and promote human rights, which are central to its people. Given that South Africa is built upon a society shaped by its people's experiences, the country needs to ensure that its citizens have access to all available mechanisms for the protection of their fundamental rights, including direct access to the African Court.
Mondekazi Ntshele is a human rights lawyer and is currently studying human rights and democratisation in Africa at the University of Pretoria.