The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Protocol on the Establishment of the African Court on Human and Peoples' Rights, referred to it, having consulted widely, including obtaining a legal opinion, and having noted that -

1. in terms of section 167(3)(a) of the Constitution of the Republic of South Africa, 1996 (hereafter referred to as the Constitution), the Constitutional Court is the highest court in the land in respect of all constitutional matters;

2. in terms of article 50 of the African Charter on Human and Peoples' Rights (hereafter referred to as the African Charter), the African Commission on Human and Peoples' Rights (hereafter referred to as the African Commission) can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the African Commission that the procedure of achieving these remedies would be unduly prolonged;

3. the jurisdiction of the African Court on Human and Peoples' Rights (hereafter referred to as the African Court), when established in terms of article 1 of the Protocol on the Establishment of the African Court on Human and Peoples' Rights (hereafter referred to as the Protocol), shall in terms of article 3(1) of the Protocol extend to all cases and disputes submitted to it concerning the interpretation and application of the African Charter, the Protocol and any other relevant human rights instrument ratified by the States concerned (in terms of article 7 of the Protocol the African Court shall apply the provisions of the African Charter and any other relevant human rights instrument ratified by the States concerned);

4. in terms of article 2 of the Protocol, the African Court shall, bearing in mind the provisions of the Protocol, complement the protective mandate of the African Commission conferred upon it by the African Charter;

5. if adopted, the Protocol will result in a complementary system of protection of human rights, one in terms of our Constitution and the other in terms of the African Charter (in other words, a case relating to the protection of human rights in terms of the African Charter must be adjudicated through our court system in terms of our Constitution before it can be dealt with in terms of the African Charter by the African Court);

6. it will not be possible to appeal on human rights matters from the Constitutional Court to the African Court or from the African Court to the Constitutional Court;

7. in terms of article 5 of the Protocol, only the African Commission, State Parties and African Intergovernmental Organisations have direct access to the African Court;

8. in terms of article 34(6) of the Protocol, access to the African Court may be extended to relevant Non-Governmental Organisations and individuals in certain respects;

9. the two systems will largely be complementary and mutually reinforcing of each other (on the one hand, our Constitutional Court, in terms of section 39(1)(b), is compelled, when interpreting the Bill of Rights, to consider international law; in this regard the pronouncements of the African Court will have a significant bearing on the development of our human rights jurisprudence; on the other hand, the African Court will, in terms of the Vienna Convention and the practices of international tribunals of a like nature, be influenced by the pronouncements of our courts);

10. from a literal reading of articles 28(2) and 30 of the Protocol and a comparison thereof with section 167(3) of the Constitution, it has been suggested that there may be a potential conflict (however, in view of the above, the possibility of a conflict actually happening is remote within such a complementary system of protection of human rights);

11. in terms of section 231(4) of the Constitution, international agreements only become law in the Republic when it is enacted into law by national legislation;

recommends that-

the House, in terms of section 231(2) of the Constitution, approve the said Protocol.

The Committee further resolves that if the Executive at any stage makes a declaration in terms of article 34(6) of the Protocol accepting the competence of the Court to receive cases under article 5(3), such a declaration shall first be tabled in Parliament for approval.

Report to be considered.