1 This formulation invokes the term “International Bill of Rights”, which is used as an informal shorthand for the three UN human rights instruments that emerged as core norms: the Universal Declaration of Human Rights of 1948; the International Covenant on Economic, Social and Cultural Rights of 1966; and the International Covenant on Civil and Political Rights of 1966.

2 For a discussion of the legal status of these findings, see Viljoen, FInternational Human Rights Law in Africa (2nd ed, 2012, Oxford University Press)CrossRefGoogle Scholar at 339.

3 Killander, M “African human rights law in theory and practice” in Joseph, S and McBeth, A (eds) Research Handbook on International Human Rights Law (2010, Edward Elgar Publishing) 388Google Scholar at 413.

4 34th activity report of the African Commission, paras 16 and 17 and 33rd activity report of the African Commission, paras 19 and 20. Decisions of the African Commission may found at: <http://www.achpr.org/communications/> (last accessed 18 November 2013). A systematic report of individual communications can be found in the African Human Rights Law Reports published by the Pretoria University Law Press.

5 For the court's judgments and orders, see: <http://www.african-court.org/en/index.php/2012-03-04-06-06-00/cases-status1> (last accessed 18 November 2013).

6 Applns 009/2011 and 011/2011: Tanganyika Law Society and Others v the United Republic of Tanzania (14 June 2013), available at: <http://www.african-court.org/en/images/documents/case/Judgment%20-%20%20Rev%20Christopher%20Mtikila%20v.%20Tanzania.pdf> (last accessed 4 December 2013).

7 Appln 4/2011: African Commission on Human and Peoples' Rights v Libya (25 March 2011).

8 Comm 2/2009: Institute for Human Rights and Development in Africa and Open Society Justice Initiative (on Behalf of Children of Nubian Descent in Kenya) v Kenya (22 March 2011).

9 This article refers to the practice of the African Commission and Inter-American Commission on Human Rights. However, these bodies should be contrasted with the UN treaty bodies, which do not allow amicus curiae briefs. Starting with the UN Human Rights Committee, these bodies have been established without any possibility of oral hearings, with strict locus standi [capacity to bring an action or be heard in court] requirements, and no reference to amicus curiae briefs.

10 Bartholomeusz, L “The amicus curiae before international courts and tribunals” (2005) 5/2Non-State Actors and International Law 209 at 273CrossRefGoogle Scholar.

11 See for example the European Convention on Human Rights, art 36.

12 Amicus curiae submissions are referred to in this article as amicus submissions or briefs. Amicus (plural amici) is used to refer to the individuals or organizations that file amicus briefs.

13 Mohamed, A “Individual and NGO participation in human rights litigation before the African Court of Human and Peoples' Rights: Lessons from the European and Inter-American Courts of Human Rights” (1999) 43/2Journal of African Law 201CrossRefGoogle Scholar.

14 However, it should be noted that, unlike the ECOWAS Court, the EACJ does not yet have an explicit human rights mandate. The EACJ will have a human rights mandate only after a protocol on human rights is adopted by the EAC. In April 2013, a first step was taken towards such a mandate with the adoption by the East African Legislative Assembly of the EAC Human Rights Bill.

15 In the context of the US Supreme Court, Kearney and Merrill observe that amicus curiae submissions are made in up to 85% of cases: Kearney, J and Merrill, T “The influence of amicus curiae briefs on the Supreme Court” (1999–2000) 148 University of Pennsylvania Law Review 743 at 744Google Scholar. In Africa, the amicus curiae procedure is particularly familiar in common law countries such as Ghana, Kenya and South Africa.

16 Although the practice is still undeveloped in civil law countries, amicus curiae procedures are recognized particularly in relation to the adjudication of constitutional disputes, for instance in Brazil and France; see UNIDROIT Principles of Transnational Civil Procedure (2006, Cambridge University Press)Google Scholar at 80.

17 Krislov, S “The amicus curiae brief: From friendship to advocacy” (1963) 72/3Yale Law Journal 694CrossRefGoogle Scholar at 695, describing the traditional role of the amicus as “one of oral ‘shepardizing’ the bringing up of cases not known to the judge”; Angell, E “The amicus curiae: American development of English institutions” (1967) 16 International and Comparative Law Quarterly 1017CrossRefGoogle Scholar at 1017, observing that the amicus was “originally a bystander who, without any direct interest in the litigation, intervened on his own initiative to make a suggestion to the court on matters of fact and law within his own knowledge”.

18 Tobias, C “Standing to intervene” (1991) Wisconsin Law Review 415Google Scholar at 419. See also Kearney and Merrill “The influence of amicus curiae briefs”, above at note 15 at 745.

19 See Steffek, J and Ferretti, M “Accountability or ‘good decisions’? The competing goals of civil society participation in international governance” (2009) 23/1Global Society 37CrossRefGoogle Scholar, observing that civil society participation in general in international governance has two related but distinct advantages, namely ensuring that international decision-makers account for their decisions and enhancing the epistemic quality of decisions.

20 Collins, P Jr “Friends of the court: Examining the influence of amicus curiae participation in the US Supreme Court litigation” (2004) 38/4Law and Society Review 807CrossRefGoogle Scholar at 807.

21 Mohamed “Individual and NGO participation”, above at note 13 at 205.

22 Loux, A “Losing the battle, winning the war: Litigation strategy and pressure group organization in the era of incorporation” (2000) 11/1The King's College Law Journal 90Google Scholar at 92.

23 Mohamed “Individual and NGO participation”, above at note 13 at 205.

24 Collins, P JrFriends of the Supreme Court: Interest Groups and Judicial Decision Making (2008, Oxford University Press)CrossRefGoogle Scholar at 3.

25 Garcia, R “A democratic theory of amicus advocacy” (2008) 35/2Florida State University Law Review 315Google Scholar.

26 Simmons, O “Picking friends from the crowd: Amicus participation as political symbolism” (2009) 42/1Connecticut Law Review 187Google Scholar at 233.

27 Bryden, P “Public interest intervention in the courts” (1987) 66 Canadian Bar Review 490Google Scholar at 508–09; Schacter, J “The confounding common law originalism in recent Supreme Court statutory interpretation: Implications for the legislative history debate and beyond” (1998) 51/1Stanford Law Review 1CrossRefGoogle Scholar at 47, observing that amicus briefs improve and democratize interpretive litigation by expanding the scope of perspectives before the court.

28 Angell “The amicus curiae”, above at note 17 at 1023, observing that “the expenses incurred by one who appears as a friend of the court are trifling”.

29 Shelton, D “The participation of nongovernmental organizations in international judicial proceedings” (1994) 88/4American Journal of International law 611CrossRefGoogle Scholar at 612.

30 Tobias, C “Standing to intervene” (1991) Wisconsin Law Review 415Google Scholar at 415.

31 Bartholomeusz “The amicus curiae before international courts”, above at note 10 at 211, observing that “[s]ince the 1990s the amicus curiae has become more prominent before more international courts and tribunals”. See also Mackenzie, R “The amicus curiae in international courts: Towards common procedural approaches?” in Treves, T et al. (eds) Civil Society, International Courts and Compliance Bodies (2005, Cambridge University Press) 295Google Scholar.

32 Williams, S and Woolaver, H “The role of amicus curiae before international criminal tribunals” (2006) 6/2International Criminal Law Review 151CrossRefGoogle Scholar.

33 Levine, E “Amicus curiae in international investment arbitration: The implications of an increase in third-party participation” (2011) 29/1Berkeley Journal of International Law 200Google Scholar.

34 Ala'i, P “Judicial lobbying at the WTO: The debate over the use of amicus curiae briefs and the US experience” (2000–01) 24 Fordham International Law Journal 62Google Scholar.

35 See generally Bartholomeusz “The amicus curiae before international courts”, above at note 10.

36 African Charter, art 60, and Statute of the African Court, art 3(1).

37 See generally Mayerfeld, J “The democratic legitimacy of international human rights law” (2009) 19/1Indiana International and Comparative Law Review 49Google Scholar.

38 Respectively: rule 74 of the Rules of Procedure and Evidence, adopted 29 June 1995, as amended 21 May 2005; rule 74 of the Rules of Procedure and Evidence of the Special Court of Sierra Leone, adopted 20 October 2004; rule 103(1) of the Rules of Procedure and Evidence, official records of the Assembly of the states parties, 1st session, 3–10 September 2002 (ICC-ASP/1/3 and Corr:1), part II A. See Williams and Woolaver “The role of amicus curiae”, above at note 32; and Bartholomeusz “The amicus curiae before international courts”, above at note 10.

39 Prosecution v Charles Ghankay Taylor SCSL-2003-01-1.

40 44 Eur Ct HR (ser A) (1981).

41 Protocol 11, art 36.

42 European Convention, art 36(2), and rule 44 of the Rules of Procedure of the European HR Court, which allows the court to invite “any person concerned who is not the applicant” to make written or oral submissions.

43 See, as a random example, appln no 25579/05: A, B and C v Ireland Grand Chamber, 16 December 2010.

44 Rules of Procedure of the European HR Court, rule 44(2)(a).

45 Shelton “The participation of nongovernmental organizations”, above at note 29 at 632.

46 Rules of Procedure of the European HR Court, rule 44(1)(b). The 12 week time limit may be extended by the president of the court if there is good cause to that effect.

47 For example, Advice on Individual Rights in Europe Centre, Liberty, JUSTICE and Interights are some of the UK-based NGOs that actively join cases as amici curiae. See: Hodson, LNGOs and the Struggle for Human Rights in Europe (2011, Hart Publishing)Google Scholar at 52.

48 L Van den Eynde “An empirical look at the amicus curiae practice of human rights NGOs before the European Court of Human Rights” (2012) (on file with author). According to Van den Eynde, amicus curiae briefs are submitted in 1.2% of cases before the court. In contrast, the Grand Chamber receives amicus briefs in 16.45% of cases. The fact that the court often hears repetitive issues makes it less attractive for amici curiae to intervene. However, although the percentage appears negligible, given that the court decides thousands of cases every year, the actual number of amicus curiae submissions is significant.

49 JUSTICE “To assist the court: Third party interventions in the UK” (2009), para 46, available at: <http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf> (last accessed 18 November 2013).

50 Shelton “The participation of nongovernmental organizations”, above at note 29 at 638. According to Padilla, an amicus curiae submission is not only welcomed but also encouraged by the court: Padilla, D “The Inter-American Commission on Human Rights of the Organization of the American States: A case study” (1993) 9/1American University Journal of International Law and Policy 95Google Scholar at 111. See also Sepulveda, MUniversal and Regional Human Rights Protection: Cases and Commentaries (2004, University of Peace)Google Scholar at 21, observing that the court “receives amicus curiae briefs regularly although there is no specific provision regulating their submission”.

51 Buergenthal, G “The advisory practice of the Inter-American Human Rights Court” (1985) 79/1American Journal of International Law 1CrossRefGoogle Scholar at 15.

52 Advisory opinion OC-16/99 of 1 October 1999, para 14.

53 Enforceability of the right to reply or correction (arts 14(1), 1(1) and 2 of the American Convention on Human Rights): advisory opinion OC-7/86, August 29, 1986, Inter-Am Ct HR (ser A) no 7 (1986), para 5.

54 Juridical condition and rights of the undocumented migrants: advisory opinion OC-18/03, September 17, 2003, Inter-Am Ct HR (ser A) no 18 (2003), paras 6–31.

55 Rules of Procedure of the Inter-American Court of Human Rights (approved in November 2009, updated to February 2012), art 44.

56 Id, art 44(4).

57 See for example Inter-American Commission Application Before the Inter-American Court of Human Rights in the Case of Karen Atala and Daughters (Case 12.502) v Chile, available at: <http://www.cidh.oas.org/demandas/12.502ENG.pdf> (last accessed 18 November 2013).

58 Rules of Procedure of the African Commission, approved during its 47th ordinary session held in Banjul, Gambia, 12–26 May 2010, rules 85 and 96(1).

59 The authors have considered all the final decisions on communications published on the commission's website at: <http://www.achpr.org/communications/> (last accessed 18 November 2013).

60 Respectively: Kenneth Good v The Republic of Botswana, comm no 313/05, decided during the commission's 47th ordinary session, 12–26 May 2010, para 17; Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African Group) v Eritrea, comm no 233/99-234/99, decided during the commission's 33rd session, 15–29 May 2003, para 14 (on the complaint brought against Ethiopia); Gabriel Shumba v Zimbabwe, comm no 288/04, decided during the commission's 51st session, 18 April–2 May 2012, para 18 (submitted on its behalf by the Institute for Human Rights and Development in Africa).

61 Centre for Minority Rights Development (Kenya) and Minority Rights Group on behalf of the Endorois Welfare Council v Kenya, comm 276/2003, decided during the commission's 46th ordinary session, 11–25 November 2009, paras 1 and 46.

62 Samuel T Muzerengwa and 110 Others (Represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, comm 306/05, paras 11 and 13, 9th extraordinary session of the African Commission, 23 February – 3 March 2011.

63 Id, para 78.

64 Above at note 61, para 133.

65 African Charter, art 55. The African Commission has some of the most liberal locus standi rules amongst international human rights tribunals. There is no requirement that the author of a communication be a victim, as is the case in the UN human rights treaty bodies and the European HR Court. There is also no requirement that the author obtain the consent of the victim(s).

66 Under the African Charter, art 59(1).

67 The rules of procedure of the European HR Court require that written comments submitted by amici curiae should be in one of the official languages of the court (English and French): rule 44(5).

68 It is not certain whether this phrase can be interpreted to grant NGOs, which have observer status before the commission, the standing to request advisory opinions.

69 Court Protocol, art 4.

70 Id, art 5(1).

71 Id, arts 5(3) and 34(6).

72 Id, art 26(2).

73 Rules of the court, rule 29(3)(c).

74 Id, rule 45(1).

75 Id, rule 45(2).

76 Id, rule 72.

77 Interview with the then president of the court, Justice Gerard Niyungeko, and registrar of the court, Dr Robert Eno, 23 March 2012, Arusha, Tanzania.

78 Email from the registrar of the court, 12 April 2012 9 (on file with the authors).

79 African HR Court Practice Directions (2012), para 45, available at: <http://www.african-court.org/en/images/documents/Court/Cases/Procedures/Practice%20Directions%20to%20Guide%20Potential%20Litigants%20En.pdf> (last accessed 18 November 2013).

80 Id, rule 42.

81 Id, rule 43.

82 Id, rule 44.

83 Ibid.

84 Id, rule 46.

85 African Commission on Human and Peoples' Rights v Libya: appln 4/2011. The amicus brief was submitted by the Pan African Lawyers Union. The court's order granting the request is dated 30 June 2012. The court struck the case from the roll on 15 March 2013.

86 The first is a request by the Centre for Human Rights, University of Pretoria, joined by Amnesty International and the Human Rights Implementation Centre, Bristol University, to participate as an amicus in respect of the request for advisory opinion 1/2013 by the Socio-Economic Rights and Accountability Project (on file with the authors). The court granted the request (in a letter from the court's registrar, dated 10 September 2013). The second, a request by a group of NGOs in Lohe Issa Kone v Burkina Faso (appln 4/2013), was granted by the court at its 31st session, 25 November – 6 December 2013.

87 For an analysis of the rules governing access to the court, see Juma, D “Access to the African Court on Human and Peoples' Rights: A case of the poacher turned gamekeeper” (2007) 4/2Essex Human Rights Review 1Google Scholar.

88 Mohamed “Individual and NGO participation”, above at note 13 at 213.

89 In the international context, Donini observed that, despite the fact that states are the principal actors, “the Temple of States would be a rather dull place without nongovernmental organizations”: Donini, A “The bureaucracy and the free spirits: Stagnation and innovation in the relationship between the UN and NGOs” (1995) 16/3Third World Quarterly 421CrossRefGoogle Scholar at 421.

90 African Children's Charter, art 45(1).

91 Email from Benyam Mezmur, member of the committee, 25 May 2012 (on file with the authors).

92 For a discussion of the suitability and legitimacy of the human rights jurisdiction of sub-regional courts in Africa, see Ebobrah, S “Litigating human rights before sub-regional courts in Africa: Prospects and challenges” (2009) 17/1African Journal of International and Comparative Law 79CrossRefGoogle Scholar.

93 See, however, the Treaty Establishing the East African Community, art 40 and EACJ Rules of Procedure (2008), rule 36. According to these provisions, third parties may intervene in the court's proceedings only if they show “interest in the result of the case”.

94 Calist Andrew Mwatela et al v East African Community, appln no 1 of 2005 (decided October 2006).

95 In the matter of a request by the Council of Ministers of the EAC for an advisory opinion, appln no 1 of 2008 (2009).

96 Attorney General of Kenya v Independent Medical Legal Unit, appeal 1 of 2011, EACJ, Appellate Division (15 March 2012).

97 Socio-Economic Rights and Accountability Project and Others v Nigeria and Others, suit no ECW/CCJ/APP/10/10, concerning Nigerian Police Force Order 237: amicus brief dated February 2012 in which the ECOWAS Court rejected the government's argument that the plaintiffs had to sign the amicus brief. For Amnesty International's brief, see: <http://www.refworld.org/pdfid/4f3a45ba2.pdf> (last accessed 2 December 2013).

98 Amnesty International submitted an amicus brief in respect of Linda Gomez and Others v The Gambia, suit no ECW/CCJ/APP/18/12, relating to the death penalty, dated September 2013. For Amnesty International's amicus brief, see: <http://www.amnesty.org/en/library/asset/AFR27/008/2013/en/21cc8a15-044e-42f9-a2af-03ce73e24183/afr270082013en.html> (last accessed 18 November 2013).

99 ECOWAS Court Protocol, art 10(d).

100 Socio-Economic Rights and Accountability Project v Federal Republic of Nigeria and Universal Basic Education Commission no ECW/CCJ/APP/0808.

101 See Charnovitz, S “Nongovernmental organizations and international law” (2006) 100 The American Journal of International Law 348CrossRefGoogle Scholar at 348, observing that NGOs have “exerted profound influence on the scope and influence of international law”.

102 Court Protocol, art 22; 2010 African Commission Rules of Procedure, rule 101(1)(a); Children's Rights Committee, rule VI; guidelines for the consideration of communications, provided for in art 44 of the African Children's Charter. This practice in the African system deviates from the practice of other international tribunals such as the European HR Court and International Court of Justice, where the presence of a judge from the states parties to the dispute is required.

103 Appln nos 60041/08 and 60054/08, European HR Court, 23 November 2010.

104 Appln no 35810/09, para 76, European HR Court, 11 July 2012.

105 Appln no 61521/08, pending before the European HR Court.

106 As at April 2013, NANHRI had a total membership of 42 African human rights institutions.

107 Final communiqué of the 53rd ordinary session of the African Commission, 9–23 April 2013, para 29, available at: <http://www.achpr.org/files/sessions/53rd/info/communique53/achpr53_fincom_2013_eng.pdf> (last accessed 18 November 2013).

108 Protocol on the Statute of the African Court of Justice and Human Rights, art 30(e).

109 Practice Directions, above at note 79, rule 44.

110 See “Pending cases”, available at: <http://www.african-court.org/en/index.php/2012-03-04-06-06-00/pending-cases> (last accessed 18 November 2013).

111 See for example data on the suitability of lesbian parents in the amicus brief before the Inter-American HR Court in Atala v Chile, case 12.502, available at: <http://www.iglhrc.org/binary-data/ATTACHMENT/file/000/000/563-1.pdf> (last accessed 18 November 2013).