A direct legal complaint before the African Court on Human and Peoples’ Rights against a signatory State of the Protocol is possible by other State parties, the African Commission on Human and Peoples’ Rights and African Inter-Governmental organizations. It is also possible for individuals as well as for those NGOs having an observer status at the African Commission on Human and Peoples’ Rights. They can plead before the Court if and only if the State concerned, signatory of the Protocol, has made a declaration under Article 34.6 of the Protocol that authorizes this procedure.
As of November 2009, only Burkina Faso has made a declaration under Article 34.6, out of the 25 States having ratified the Protocol of 1998.
In checking the admissibility of a complaint, the Court has to:
In the case of violations of human rights, individuals and NGOs having an observer status at the African Commission on Human and Peoples’ Rights may take legal action before the Court in an indirect way, even if the State concerned has not made a declaration under Article 34.6 of the Protocol.
They can, as a matter of fact, present communications before the African Commission on Human and Peoples’ Rights. There is no possibility for the State concerned to prevent such communications. The Commission can decide to bring the issue before the Court. The conditions for such communications would be the same as shown above under “Direct seizure”.
In December 2009, the African Court delivered its first judgement. In the matter of Michelot Yogogombaye v. The Republic of Senegal the applicant, a Chadian National, wanted to prevent the Government of Senegal from conducting the trial against the former Chadian head of State, Hissene Habre, asylumed as a political refugee in Senegal since 1990, in Dakar. The Court decided that it lacked jurisdiction to hear the case as Senegal had not made the declaration under Article 34.6 of the Protocol granting individuals the opportunity to institute cases directly before the Court.
The Judgment and the separate opinion can be assessed here: