Form over substance: The African Court's restrictive approach to NGO standing in the SERAP Advisory Opinion

Résumé 0

This article considers the long-awaited decision of the African Court on Human and Peoples' Rights in response to the application brought by the Nigerian NGO, Socio-Economic Rights and Accountability Project (SERAP), which sought guidance on the locus standi of NGOs to seek advisory opinions from the Court on the meaning of certain provisions of the African Charter. The Court's decision endorses the access of the NGO sector in principle, but imposes a stringent procedural precondition of formal observer status accredited by the African Union, rather than a broader test of official status before other relevant bodies, such as the African Commission. The effect of this procedural restriction in practice limits the number of NGOs able to seek Advisory Opinions from the Court to a small subset of the NGOs active in human rights protection in Africa. The article considers whether the Court's approach in adopting this limitation is theoretically coherent and lawful, concluding that it is inconsistent with the proper approach to treaty interpretation at international law. Further, the article considers the broader implications of the Court's decision, and the risk that it will discourage NGOs from using the African Court as the authoritative forum to determine the meaning of the African Charter in favour of other tribunals with less restrictive standing requirements, raising the potential forthe fragmentation of African human rights jurisprudence.