www.ccsenet.org/jpl Journal of Politics and Law Vol. 4, No. 2; September 2011 ISSN 1913-9047 E-ISSN 1913-9055 120 Comparative Evaluation of the Challenges of African Regional Human Rights Courts Dr. Timothy Fwa Yerima Senior Lecturer and Acting Dean of Law, Kogi State University, Anyigba-Nigeria E-mail: tfyerimah1@yahoo.com Received: March 14, 2011 Accepted: April 14, 2011 doi:10.5539/jpl.v4n2p120 Abstract Recent developments in Africa have witnessed the establishment of African Court of Human Rights and African Court of Justice; and the eventual merger of the two Courts as the African Court of Justice and Human Rights. The Courts were established to compliment the protective mandate of African Commission on Human Rights. The establishment of African Human Rights Courts has catapulted scholars into considering whether the option is better for African human rights system or whether it was taken impetuously. The question is imperative in view of the problems that besiege the African Commission. This article considers the foreseeable hurdles that the African Court of Human Rights and the merged Court are likely to face. It points out that the African human rights system was built on a shaky foundation and suggests ways for revamping the system. Keywords: African Charter, African Commission, African Court, AU, Economic Rights, Human Rights, Political Rights, OAU 1. Introduction The establishment of the African Human Rights Court had long been overdue. This was not because the European and Inter-American human rights systems had, over many decades ago, established a Human Rights Court in their respective continents; but for the reason that Africa has been known for its egregious violation of human rights (Anyangwe C:1998). However, that African Human Rights Courts are established at the 24th hour does not depict that the idea of establishing a Human Rights Court in Africa is novel. In fact, the idea was sold since 1961, but was flatly turned down. It was felt that Africa was not matured enough to establish such a Court (Law of Lagos: 1961). Even if this reason was justified in 1961, it could not have been justified in 1981, when the African Charter on Human and Peoples’ Rights (OAU Charter: 1986) was adopted under the auspices of the Organization of African Unity. It was hoped that Africa would follow the example of its European and Inter-American counterparts that established a Court and a Commission, but to no avail. The Charter established only African Commission on Human and Peoples’ Rights, with a tripartite mandate. Since 1987, when the Commission was constituted, it has been severely criticized as a toothless bulldog that only barks but cannot bite because the decisions of the Commission are not binding on State Parties (Udombana N. J.: 2000). Secondly, African States are still tied to the apron string of the much –vaunted principles of state sovereignty and reserve domain. Financial predicaments also frustrate many activities of the Commission, among others.(Wachira G. M.: 2006). Since the African Charter was adopted, the African human rights system has been relegated to a ramshackle structure that was built on a shaky foundation. One measure adopted to overcome some of the problems was the adoption of the Protocol establishing the African Human Rights Court by the African Heads of State and Government in 1998. In 2000, they also adopted the Constitutive Act of the AU to replace the OAU Charter (AU Constitutive Act: Art. 33). The Act created the African Court of Justice as the judicial organ of the AU. However, concern over the proliferation of enforcement bodies in Africa brought to the fore the question whether the establishment of the Courts was “a needful duality or a needless duplication”(Udombana N. J.: 2003). The question was answered in 2005, when the suggestion made by the former Head of State of Nigeria, President Olusegun Obasanjo to merge the two Courts as one Court was accepted with a warm arm. This culminated to the adoption of the Protocol and Statute of the African Court of Justice and Human Rights (Merged Court) in 2008. The moment the Protocol comes into force, it shall replace the African Human Rights Court Protocol and the Protocol of the African Court of Justice; (Protocol of the Merged Court: Art. 1) and any reference to the African Court of Justice under the AU Constitutive Act shall be read as referring to the merged Court (Protocol of the Merged Court: Arts. 1&3) But it was in December 2010 that the African Human Rights Court delivered its maiden decision in Michelot Yogogombaye v. The Republic of Senegal (2009). The scenario in the African human rights system was likened to digging the grave of a child not yet born.