AbstractCivil society has become a vital actor in the litigation of the African human rights system, thereby re-ordering African politics. Not only do its representatives act as litigants, but they also appear before the African judicial and quasi-judicial bodies as amici curiae. The present study therefore explores the process, practice and impact of the amicus device in the litigation before the African Commission, the African Court and the African Children’s Rights Committee. Despite the commitment of these bodies to a bilateral model of litigation, private actors as well as states have nevertheless begun to forge for themselves a role as non-parties in their litigation.
However, the study notes that the amicus regulatory frameworks of the African judicial and quasi-judicial bodies are underspecified, incomprehensive and therefore inadequate for the effective management and control of third parties. Proper regulation of amicus participation would ensure that the interests of third parties in ventilating their opinions and the procedural rights of the parties are balanced. Regulation would also ensure that amici curiae do not place themselves in the way of a timely, cost effective and efficient resolution of disputes.
The present study establishes that the amicus curiae has two principal functions in the African human rights system: First, it assists the African judicial and quasi-judicial mechanisms with factual information and legal arguments in the resolution of disputes. Despite the fact that amicus participation in the African system remains modest, a review of relevant cases shows that the African Commission and the African Court have begun to rely on amicus submissions in decision-making. The African Children’s Committee merely recapitulated or summarised the submissions filed by the amicus curiae without referencing them at the evaluative part of the opinion, making the impact of the submission difficult to ascertain.
Second, the study establishes that amici curiae may help to overcome the democratic legitimacy deficit that haunts the African judicial and quasi-judicial bodies, by introducing the diverse views of African audiences into the decision-making processes of these mechanisms. However, the study notes that at present, the majority of third party intervenors before the African system are non-African NGOs which are naturally ill-suited to represent the interests of the African publics. African human rights civil society should therefore stand at the cutting edge of this third-party initiative to alleviate these ‘outsider concerns’.
|Date of Award||19 Mar 2019|
|Supervisor||Rachel H Murray (Supervisor) & Devyani Prabhat (Supervisor)|