A Clarion Call for Human Rights Actors in Africa to Reimagine a Continental Judicial Human Rights Mechanism

The 66th Ordinary Session of the African Commission on Human and Peoples’ Rights (African Commission) is taking place between 13th July and 7thAugust 2020 in Banjul, The Gambia, through a virtual forum – due to the spread of COVID-19, a global pandemic.[1] In exercise of its protective mandate, the African Commission holds two ordinary sessions per year, comprising human rights organizations from Africa and globally. The objective of the forum is to foster closer collaboration of NGOs with the African Commission, with the sole aim of promoting and protecting human rights in Africa.

During the sessions, States’ reports, shadow reports, and any other statements on human rights issues in Africa are subject to consideration. Subsequently, concluding observations and resolutions are generally given to individual member States with some resolutions being addressed to several States collectively. Resolutions and concluding observations play a major role in advocacy for human rights protection by civil society organizations.

A key human rights concern in Africa that needs to be urgently addressed is the threat against the existing continental redress mechanism. “The African Court is not the first African regional court to come under an attack over supranational adjudication related to human rights, democracy, and the rule of law. Sub-regional courts in West Africa (the ECOWAS Court of Justice), East Africa (the East African Court of Justice), and Southern Africa (the SADC Tribunal) all experienced a backlash from particular member States that frequently reported concerns about sovereignty and courts overstepping their authority to interfere in States’ internal affairs.”[2]

Human rights & humanitarian law reflections in Africa

In January 2020, the Africa Times reported that several countries in Africa topped the list for facing some of the worst humanitarian crises in the world.[3] These range from adverse security issues experienced in inter alia Democratic Republic of Congo, Nigeria, Burkina Faso, Burundi, Chad, South Sudan, Somalia and the Central African Republic.

Additionally, World Vision reports that an estimated 30 million people in East Africa are in need of emergency humanitarian aid but cannot access it.[4] Intervention from various actors is necessary to ensure that the disproportionate impacts of humanitarian crises are mitigated, or redressed. It should encourage sanctioning violations of international humanitarian law. Largely, populations are affected by conflicts for various reasons including violence, environmental factors, development, and social conflict. When dealing with human rights violations, regional human rights mechanisms have to address the relationship between human rights and humanitarian law.

Like other regions globally, Africa faces unique challenges in implementing humanitarian law safeguards. The establishment of the African Court and Africa Commission was once lauded as a significant step towards addressing deeply entrenched regional conflicts.[5] In its Preamble, the 1981 African Charter on Human and Peoples’ Rights[6] recognizes on one hand, that fundamental human rights stem from attitudes of human beings, which justifies their international protection and on the other hand, that the reality and respect for peoples’ rights should necessarily guarantee human rights. In developing the Charter that governs applicable human rights standards, States were firmly convinced of the ‘duty to promote and protect rights and freedoms while taking into account the importance traditionally attached to these rights.’[7]

In affirmation of States’ commitment to human rights protections, the African Court was established. This was accomplished by the virtue of Article 1 of the 1998 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights.[8] The Court based in Arusha, Tanzania officially started its operations in November 2006 to complement the prospective mandates of the African Commission. Its jurisdiction extends to interpretation and application of the Charter, Protocol, as well as any relevant human rights instruments ratified by the States concerned.[9] However, effective operationalization of the rules on protecting human rights faces various challenges.

Article 5 of the Protocol limits access to the Court to only the African Commission, States Parties, and African intergovernmental organizations. Individuals and non-governmental organizations (NGOs) cannot access the Court unless, a State (during ratification) makes a declaration under Article 34(6) and accepts the competence of the Court to receive cases directly from individuals or NGOs under Article 5(3). The Court will not receive any petition from a State Party which has not made this declaration. Moreover, to petition under Article 5(3), NGOs need to have an observer status before the African Commission. As a Court of last resort, it cannot decide on a matter ongoing before the Commission and an aggrieved person has to exhaust all the available local remedies first.

The core essence of a ‘human and people’s rights’[10] centered set-up was to set the African Union (AU) apart from other international justice mechanisms by providing for rights that could be enjoyed individually and collectively. Individuals and NGOs are usually the front runners in pushing for enforcement of human rights obligations neglected by States. Reasons for approaching international or regional mechanisms are usually premised on the notion that the national justice systems are amenable to external influence.

Among the 30 State Parties to the Protocol, only nine: Benin, Burkina Faso, Côte d’Ivoire, The Gambia, Ghana, Malawi, Mali, Tanzania and  Republic of Tunisia allowed individuals and NGOs to have direct access to the Court.[11] However, Rwanda, Tanzania, Benin and Côte d’Ivoire have since withdrawn their declarations under Article 34(6) from the Court’s jurisdiction. Notwithstanding, ongoing proceedings before the Court are not affected at the time of withdrawal of declaration, even though, the withdrawals take effect within a year of official communication. Within this period, individuals and NGOs may still access the Court.

Over the last four years, the Court has seen a significant withdrawal of declarations under Article 34(6). The first withdrawal was submitted by Rwanda in 2016.[12]

Tanzania, the host of the African Court, signed a notice of withdrawal on 19th November 2019.[13] In the Statement by the Southern Africa Litigation Centre,[14] the move was termed as “a shock to the human rights community,” as it undermines the authority of the African Court and defeats the purpose of its establishment. The Court was established in order to create a strong and credible regional human rights body to hold States accountable and to provide individuals with a possibility to access justice.” Additionally, “regional human rights bodies, such as these, play a critical role in holding States accountable for human rights violations and abuses.”[15]

The most recent withdrawals of declarations were submitted by Côte d’Ivoire and Benin. The current 10th President and Justice of the Court is a national of Côte d’Ivoire. This is not to say that Justices of the Court bear the weight of the decisions of the State Parties. Decisions to make reservations on, or withdraw declarations or obligations under international law, are usually made at the volition of sovereign States.

Noteworthy, the Court’s success in promoting and ensuring protection of human rights depends on the form of government in power in a particular country and their attitudes and practice in the conduct of its business.

Balancing State development and human rights needs

The inherent reason for complacency in practices of effective enforcement of human rights stem from the heavy focus on economic development as well as the politics of African democracies. The human rights agenda is perceived as a parallel “threat”. Africa has a total of 55 recognized States. Currently, only six have made declarations under Article 34(6) of the Protocol, accepting the competence of the African Court to receive cases directly from individuals or NGOs.

In 2013, during the 50th anniversary of the establishment of the African Union, African States adopted the Agenda 2063, which entailed transforming Africa into the global powerhouse of the future. Through an ambitious blue print and master plan for the 50 year period from 2013, Agenda 2063 abides by long-term needs of Africa to revise and adapt its development agenda according to ongoing structural transformations; increased peace and reduction in the number of conflicts; renewed economic growth and social progress; the need for people-centered development, gender equality and youth empowerment; changing global contexts such as increased globalization and the ICT revolution; and emerging development and investment opportunities in areas such as agri-business, infrastructure development, health and education as well as the addition of value in African commodities.[16]

An annual commemoration of Africa Day marks the founding of the Organization of African Unity (OAU) in 1963. The OAU was later renamed as the African Union (AU), whose operation commenced in 2002. Africa Day highlights landmark achievements of the Union on various issues, including: peace and security, continental integration, women and youth empowerment, and eradication of diseases. It also provides an opportune time to reflect on the Union’s transformation, achievements, and renew commitments to Agenda 2063.[17] The celebrations laud key development issues, except for human rights progression. The centre-stage is dominated by infrastructure development and focuses on making Africa the future economic power-house of the world.

The challenges the African Court is facing go deeper than most ordinary institutional justice systems. There is an inherent split of will amongst the member States that are open to evolution towards effective protection and realization of rights on one hand. On the other hand, a great majority of them adhere to the old notion that the human rights agenda is parallel to and cannot meet political and economic development contexts.

There is a need to regulate excesses of State Party powers in regional mechanisms and elevate redress for human rights obligations by institutions. This would help the African Court effectively balance human rights expectations with States’ concerns for preservation of sovereignty and domestic security in a manner that resonates with more inherent human rights-based approach. A balance of means is achieved by ensuring that these two divisions do not fundamentally suffer.

Throughout the 1900s, focus on development and economic prosperity, compared to evolution of human rights compliance, was not prevalent on the continent due to the perceived notion that the latter was a ‘hurdle’ to political and economic milestones. Tanzanian Professor, Issa S. Shivji wrote in the article Human Rights and Development: A Fragmented Discourse that: “over the first two decades of independence in Africa, human rights discourse developed as a counterpoint to the developmentalist discourse. The dominant variants of the latter were grounded in some other ideologies of social development. In Africa, the first two decades of post-independence period saw a raging debate of modernization and underdevelopment/depensia schools. Regardless of the merits or these schools, the central point is that they placed the contentions on different paths of development in the center of the agenda. Development, as an ideological construct and a practical programme, was seen and perceived as the central concern.”[18]

While the same notions prevail today, a haughtier dimension of deep-rooted political avariciousness has gained prominence overshadowing postmodern contemporary human rights discourse. Actors need to equally reaffirm and strongly advocate for protection of all rights.

For actors in the human rights sector, Africa Day and Agenda 2063 or African Commission sessions may be the best available forums to promote strengthening the fragile continental mechanisms. The withdrawal of declarations call for enhanced support as seen here, here, here and here.

Peace, security, observance of human rights, and development have to coexist for the best fulfilment of human potential. Coexistence and equal realization necessitate strengthening of the capacities of justice mechanisms to address long standing basic human rights as well as international humanitarian law needs.

The Future

Fifty-seven years after the creation of the OAU, succeeded by the African Union, the realization of human rights is threatened due to withdrawals from the African Court, coupled with the lack of goodwill to promote internationally accepted standards of redress to human rights. It is hard to imagine realization of Africa’s Agenda 2063 in a continental society with the present complacency in protection of human rights.

The first step towards organizing and realizing a robust institutional framework was made on 1 July 2008, at the African Union Summit in Egypt. Heads of States and Governments signed The Protocol on the African Court of Justice and Human Rights providing for the merger of the African Court with the Court of Justice of the African Union, following a decision by member States adopted at the June 2004 African Union Summit. The newly established Court would be known as the African Court of Justice and Human Rights.

The delay in realization of this dream is based on the fact that the Court of Justice of the African Union (CJAU), established through the Protocol of the Court of Justice of the African Union does not exist. CJAU is yet to become fully operational, as the establishing Protocol requires ratification by 15 countries, in order to enter into force. To date, only five countries have ratified the Protocol.

No system in the world is foolproof. The Inter-American Court of Human Rights (IACHR), the European Court of Human Rights (ECtHR), the International Court of Justice (ICJ), and the International Criminal Court (ICC) all face challenges. Those range from lack of cooperation from member States, financial constraints, and possible external interferences. Through concerted efforts of all players, justice institutions maintain credibility and relevance in their respective fields of jurisdiction. [19]

In the African Court context, such efforts would ideally be fast tracked through human rights actors’, the larger international community’s, and member States’ spirited advocacy for declaration of acceptance of Article 34 (6) of the Protocol. An ordinary session, or Africa Day celebration, may solely be dedicated to the focus on mobilization for realization of the collective Africa human rights agenda through ratification of relevant instruments; strategic advocacy on the need to enable persons’ unconditional access to judicial and quasi-judicial justice institutions; and reaffirmation by States of the African Charter commitments to international obligations social protection needs.

Faced with global crises like the COVID-19 pandemic, climate change, terrorism, regional conflicts sparked by extremism, anti-government rebellion and jihadism, international migration crisis, technological revolution that threatens further disproportionate violation of rights to privacy, and threats to group rights, it is imperative, now more than ever, that governments adopt measures that would not only cushion citizens from the adverse human rights effects of these and other situations, but simultaneously provide all the crucial alternative mechanisms needed for redress.

Be that as it may, it may soon be necessary to revisit past predications of a continental human rights-centered justice mechanism with the view of addressing existing challenges. In the article from Fundamental Rights and Freedoms in Africa: the Work of the Commission on Human and People’s Rights,[20] the late Hon. Justice Robert H. Kisanga, one of the founding Commissioners of the African Commission, lawyer, and High Court Justice in the United Republic of Tanzania, wrote:

“establishment of the African Charter is just the end of the beginning. The main preoccupation now is to realize the fundamental freedoms enshrined in the Charter, that is, how to make them a practical reality and to ensure that people do in fact enjoy them /…/What is required now is to intensify such joint efforts, and given the will and commitment of the African people, and their governments and the readiness of the international community to supplement those efforts, the enjoyment of the guaranteed rights and freedoms will one day become a reality.”

Camillah Agak Knight is a human rights & public interest litigation lawyer based in Kenya. She served as a UN Volunteer under UNDP Kenya, in a human right non-governmental civil society organization with the mandate of prevention of all forms of torture, violence and discrimination and as a lawyer in the Kenyan Ministry of Foreign Affairs as well as Office of the Attorney General.

[1]The Commission may hold extraordinary sessions which are convened by the Chairperson of the Commission upon a request by the Chairperson of the African Union Commission or majority of the members of the Commission.

[2]Nicole de Silva & Misha Plagis. (2019) A Court in Crisis: African States’ Increasing Resistance to Africa’s Human Rights Court, Opinio Juris, available at: http://opiniojuris.org/2020/05/19/a-court-in-crisis-african-states-increasing-resistance-to-africas-human-rights-court/

[3]AT Editor, Africa’s Conflict, Humanitarian Crisis Outlooks for 2020, Africa Times 9 January 2020at 12:32 am, available at https://africatimes.com/2020/01/09/africas-conflict-humanitarian-crisis-outlooks-for-2020/

[4] World Vision, East Africa Humanitarian Emergencies, available at: https://www.wvi.org/emergency/east-africa-humanitarian-emergencies

[5]Brits, Pieter & Nel, Michelle. (2010). Compliance with International Humanitarian Law in Africa: A Study.

Also see, Bello, Emmanuel G., “A Proposal for the Dissemination of International Humanitarian Law in Africa Pursuant to the 1977 Protocols Additional to the Geneva Conventions of 1949”, Revue de Droit Pénal Militaire et de Droit de la Guerre, Vol. 23, Nos 1–4, 1984.

[6] The African Charter on Human and Peoples’ Rights, available at: www.african-court.org

[7] Ibid, The Preamble.

[8] The Protocol was adopted on 9th June 1998 in Burkina Faso and came into force on 25th January 2004. As at 2019, 30 of the 55 member states had ratified the Protocol. (Resources: Basic Facts, African Court on Human and Peoples’ Rights (June 2019) Published by the Registry of the Court, available at: www.african-court.org)

[9] Article 3 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights

[10] The history of adoption of the African Charter was based on the idea that some rights were enjoyable by persons individually and others, more collectively as participants in a community or specific groups (those are the peoples’ rights).

[11] The African Court on Human and Peoples’ Rights, available at: www.african-court.org

[12] International Justice Centre Resource, Online Resources, available at: https://ijrcenter.org/2016/03/14/rwanda-withdraws-access-to-african-court-for-individuals-and-ngos/

[13] Aqsa Hussain. Tanzania withdraws from African Human Rights Court. December 8, 2019 Human Rights Pulse, available at: https://www.humanrightspulse.com/mastercontentblog/tanzania-withdraws-from-african-human-rights-court

[14] The Southern Africa Litigation Centre, website: www.southernafricalitigationcentre.org

[15]Southern Africa Litigation Centre Statement Condemning Tanzania’s Withdrawal of Individuals Access to the African Court, available at: https://www.southernafricalitigationcentre.org/2019/12/06/statement-condemning-tanzanias-withdrawal-of-individuals-access-to-the-african-court/

[16] Africa Union, Agenda 2063 Overview, available at https://au.int/en/agenda2063/overview

[17] Africa Union, Africa Day Celebrations, May 25, 2019, available at  https://au.int/en/newsevents/20190525/africa-day-celebrations

[18]Chris Peter Maina & Ibrahim Hamisi Juma. (1998). Fundamental Right and Freedoms in Tanzania, Mkuki Wa Nyota Publishers Ltd, Tanzania at p. 11

[19] Also see Hailbronner, Michaela. (2016). Laws in conflict: The relationship between human rights and international humanitarian law under the African Charter on Human and Peoples’ Rights. African Human Rights Law Journal, 16(2), 339-364.

[20] Supra note 19, pp 34-35.

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