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African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Abstract

RUDMAN, Annika. The African Charter: Just one treaty among many? The development of the material jurisdiction and interpretive mandate of the African Court on Human and Peoples' Rights. Afr. hum. rights law j. [online]. 2021, vol.21, n.2, pp.699-727. ISSN 1996-2096.  http://dx.doi.org/10.17159/1996-2096/2021/v21n2a28.

In contentious cases the material jurisdiction of the African Court is the jurisdiction to interpret and apply the instruments that are provided for in article 3(1) of the African Court Protocol. For the African Court to appropriately apply these instruments it must perform an interpretive role and utilise, at its discretion, information available from sources other than those that fall under its material jurisdiction and the sources of law stipulated in article 7 of the Court Protocol. In a 2001 article Heyns brought to our attention a number of potential problems related to the material jurisdiction of the African Court. He particularly pointed us to the loss of the 'African' in article 3, the narrow approach to the applicable sources of law in article 7 and the uncertainty of the position of articles 60 and 61 of the African Charter in guiding the interpretive mandate of the African Court. Through an analysis of the Court's jurisprudence, guided by these three essential issues, the article explores how the Court has approached its material jurisdiction during its first ten years of its existence. It further aims to establish what methodology the Court has developed to address the lack of an interpretive provision in the Court Protocol with specific reference to the application of articles 60 and 61 of the Charter. The analysis demonstrates a pragmatic approach to material jurisdiction, firmly grounded in the principle of complementarity.

Keywords : African Court; material jurisdiction; complementarity; interpretive mandate.

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