Judges of the African Court on Human and Peoples�
Rights in a group photo in front of the Court�s building in Arusha.
File Photo.
If the doctrine of "African solutions for African
problems" is something to go by, then African countries need to fully
rally behind the African Court on Human and Peoples’ Rights.
The African Court was established through a Protocol to the African
Charter. The Protocol on the Establishment of an African Court on Human
and Peoples’ Rights was adopted in Ouagadougou, Burkina Faso, on 9 June
1998 and entered into force on 25 January 2004.
It was established in order to complement the protective mandate of
the Commission. Its decisions are final and binding on state parties to
the Protocol.
The Court consists of 11 judges elected by the AU Assembly from a
list of candidates nominated by member states of the AU. The judges are
elected in their personal capacity but no two serving judges shall be
nationals of the same state.
Due consideration is also given to gender and geographical
representation. The judges are elected for a period of six years and are
eligible for re-election only once.
Only the president of the Court holds office on full time basis.
The other 10 judges work part-time. The first judges of the Court were
sworn in on 1 July 2006. The seat of the Court is Arusha, Tanzania.
Africa has witnessed decades of human-rights violations, genocide
and oppression. Unfortunately many state parties are reluctant to comply
with the commission’s recommendations. Thus African leaders established
the African court in 1998 to enforce the commission’s protection
mandate, bringing renewed hopes of improved human-rights protection.
But a lack of commitment is illustrated by serious delays in the
election and appointment of judges to the court. The first judges were
appointed only in 2006. Two more years were required before the court
was ready to receive cases at its seating in Tanzania.
Despite the high proportion of women among victims of human-rights
abuses in Africa, there are only two female judges among the court’s
11judges.
The charter was ratified by 53 of the 54 African states, but the court protocol by only 28, including Tanzania.
Access by individuals and non-governmental organisations is limited
by articles 5(3) and 34(6) of the protocol, which prevents the lodging
of human-rights petitions unless the state in question has both ratified
the protocol and made a special declaration accepting the competence of
the court.
In this case, a state must grant individuals and NGOs access to
the court, thus opening itself to law suits. Perhaps not surprisingly,
only seven countries—Tanzania, Burkina Faso, Ghana, Mali, Malawi and
Rwanda—have made this declaration.
Briefing a group of journalists who visited the court recently,
Senior Legal and Communications Officer, Sukhdev Chhatbar stated that
lack of commitment among member states remains a setback to the courts
development.
He said the court lacks the mechanism to force member countries to
fully implement its rulings. “In some cases respective country
governments fail to implement court rulings but the African court has no
powers to force them in as much as its rulings are binding” he said.
But he went further saying that the other worrying area is that
almost half of African countries have not ratified the protocol. On this
he added that the court has always been carrying sensitisation seminars
in different countries to ratify the protocol.
Such seminars have been held in countries like South Africa in
2011, Cameroon in 2013 and Ethiopia in November, 2014, among other
countries. The aim is to make people, institutions and organisations
aware of the court, its role, mandate and track record.
This is peculiar, according to a senior court official who declined
to be named. He argued that courts do not often need to raise their
public profile or solicit new work.
But the judges of the African court, he said, have good reason for
this outreach since between 2008 and early this year the court received
only 32 cases, despite myriad human- rights violations across the
continent.
However, the court now looks forward to tackling criminal cases in the continent despite the current challenges.
The Assembly of Head of States and Government of the African Union
(AU) requested the AU commission, in consultation with the African
Commission of Human People’s Rights (ACHPR) to assess the implications
of extending the jurisdiction of the Court to try international crimes,
such as genocides, crimes against humanity and war crimes and thereon
submit a report to the assembly.
The consultation of extending the jurisdiction of the African Court
on Human and Peoples Rights (AfCHPR) to deal with criminal matters
started the way back in February 2009.
According to Chhatbar, to implement the decision of the Assembly,
the African Union Commission has engaged a consultant to undertake a
study on the implications of extending the jurisdiction of AfCHPR,
including considering whether unconstitutional change or prolongation of
government, could be considered a new crime.
“The Draft Protocol with an extended mandate of the court is
currently under consideration by AU Policy Organs,” reads the document
in part.
According to the senior legal officer of court, the court at the moment has only two jurisdictions; contentious and advisory.
In contentious jurisdiction, the court exercises jurisdictions over
all cases and disputes submitted to it concerning the interpretation
and application of the African Charter on Human and people’s Rights and
other relevant human rights instrument ratified by the states concerned.
The advisory jurisdiction, under the Article 4 of the Protocol, the
court may at the request of a member state of the AU, any of the organs
of AU, or any African organisation recognised by the African Union,
provide and opinion of any legal matter relating to Charter.
The idea of establishing an African Court of Human Rights was the
subject of discussions in the Organisation of African Unity (OAU) since
as long ago as 1961. However, the African Charter on Human and Peoples’
Rights, the ‘Banjul Charter’, was not signed until the OAU summit in
1981.
This did not, however, establish a court with jurisdiction in
respect of any contraventions of the Charter. On the contrary, the
contracting parties were able to agree only on the creation of a
Commission on Human Rights.
The African Commission on Human and Peoples’ Rights (African
Commission) began work in 1987, a year after the entry into force of the
Banjul Charter in 1986. Its task is to protect and uphold human rights;
however, it is not a judicial, but rather a supervisory body, meaning
that it cannot prosecute states for breaching human rights.
The justifications cited for the creation of a Commission instead
of a court were, inter alia, that the selection of a non-judicial
procedure was more in keeping with African tradition.
The fact that there was not yet sufficient political will among the
African states to submit to the jurisdiction of a court is likely also
to have played an important role. It was another decade before the move
for a court resurfaced in 1993, this time initiated by the International
Commission of Jurists with its seat in Geneva.
A year later, the Secretary General of the Organisation of African
Unity, prompted not least by the atrocities in Rwanda, was commissioned
to draw up a protocol on the establishment of an African court of human
rights. The first draft was prepared in 1995 at a meeting of experts in
Cape Town.
Two further meetings followed in 1997 before the heads of state
finally signed the protocol at the OAU summit in Ouagadougou in 1998.
However, it was another six years before the Protocol on the
Establishment of an African Court on Human Rights actually entered into
force following ratification by the Comoros, the 15th state to ratify,
on 25 January 2004.
To date, 28 member states of the African Union have ratified the
protocol. In the interim period, the African states decided to reform
the OAU, which was established in 1963.
Having achieved its central goal, which was to bring an end to
Colonial rule, there was a need following the creation of the African
Economic Union to consolidate the agreements on the union and the OAU
Charter.
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