The African Court on Human and Peoples’ Rights’ (African Court’s) 27th ordinary session being in Port Louis, Mauritius ended on the 7th of December. Not much is known about this court and African leaders are partly to blame for this sad state of affairs. The court’s 11 judges, 5 legal officers, registrar and support staff have been in Mauritius for two weeks raising awareness about the African Court, hearing legal arguments in a case against Malawi and meeting with state officials from the Ministry of Justice and Foreign Affairs.
Africa’s principal human rights court was established in terms of a Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (African Court Protocol) adopted by African Heads of State and Government (AHSG) in June 1998 and entered into force in January 2004. As at 30 November 2012, less than half of the AU member states had ratified the African Court Protocol. Of the 26 states that have shown their commitment through ratification, only 5 have signed an optional declaration under article 34(6) of the African Court Protocol allowing individuals and NGOs direct access to the African Court.
It is not by design that the African Court judges have been in Mauritius for two weeks to hear arguments on a simple labour dispute launched by a former University of Malawi French lecturer alleging unfair dismissal and raise awareness about their work. Mauritius is one of 6 SADC states that have ratified the African Court Protocol and in view of its positive democracy and rule of law credentials it is likely to sign the article 34(6) declaration. By holding the ordinary session in Mauritius the African Court judges are perhaps hoping that the government will take the next step of signing the article 34(6) declaration. Holding the session in Malawi might have been beneficial to the applicant and could have been a perfect opportunity for the African Court to show the Malawian people the significance of ratifying the African Court Protocol and signing of the optional declaration.
With Malawi and Tanzania being the only SADC states that have signed the article 34(6) declaration, it is not surprising that the only other case argued and to be decided on the merits since the court became operational in 2006 is against the Republic of Tanzania. In that case the applicants are challenging a constitutional provision that bans independent candidates from contesting presidential elections. Judgment in the case against Tanzania – which is still outstanding – should have been delivered three months after the conclusion of the hearing at the 30th ordinary session in June 2012.
If the African Court follows its rules of procedure, it should hand down a judgment in the Malawi case at its next session in March 2013. If Malawi had not signed the declaration the French teacher would not have been able to approach the African Court after exhausting domestic legal remedies in his home country. The other states to have signed the declaration are Burkina Faso, Ghana and Mali.
The African Court, based in Arusha, Tanzania, holds 4 sessions annually in March, June, September and December. The African Court’s sessions are ordinarily held in Arusha. However, the sessions may be held outside Arusha if the African Court so decides. In December 2011, the 23rd session was hosted by Ghana. The idea behind the roving court initiative may be for purposes of raising awareness about the existence and work of the African Court. The African Court should also use this system as a method of making justice more accessible to the indigent. Whilst the judges are going out of their way in publicising the African Court the AHSG, on the other hand, are not moving fast enough to ensure the court is accessible to individuals and NGOs and that it has jurisdiction to adjudicate any human rights petition filed against an AU member state.
Since the African Court became operational 6 years ago over a dozen of the 23 cases filed had to be thrown out as they were against states that have not ratified the African Court Protocol or signed the article 34(6) declaration. Citizens from the 49 African states yet to sign the declaration are being denied direct access to the African Court and legal remedies due to lack of political will by the AHSG. If the status quo remains unchanged the African Court judges and legal officers will be receiving salaries, allowances and per diems for holding workshops around the continent, instead of discharging their adjudicative mandate. Awareness raising and advocacy on the African Court should be left to NGOs to allow judges and legal officers to focus on their work.
It is humiliating that judges have to travel around the continent to raise awareness about the African Court’s existence and to encourage victims of human rights violations to file cases when only 5 states have fully submitted to the court’s jurisdiction to allow direct access. It is pointless for the AHSG to set up countless institutions which lack jurisdictional powers and are inaccessible. Another AU organ, the Pan African Parliament, has not been accorded legislative powers by the AHSG and serves only as a talk shop for members of parliament representing Africa’s different political regions.
If Africa is to be taken seriously and make progress at the international level, it must create strong democratic institutions that have the necessary powers to discharge their mandate and have clear governance structures. The institutions must be independent, well-funded and accessible to the stakeholders they are meant to serve. When these institutions, especially the judicial bodies, make decisions states must show their respect for the rule of law by implementing their directives. States such as South Africa and Nigeria must show leadership by taking the next step in making the special declaration allowing individuals and NGOs direct access to the African Court. Two of the cases thrown out by the African Court for lack of jurisdiction are against South Africa.
In the meantime the African Court should deliver justice expeditiously, operate in a transparent manner and ensure that it develops rich jurisprudence as it establishes itself as the premier human rights court on the continent. The procedure of filing cases and conducting litigation should be clarified through the publication of practice directions. The staffing levels should be adequate and the AHSG must appoint independent judges who are competent and have experience in international law. Fortuitously, the African Court is not yet lacking in funding and must therefore accomplish so much more before the flickering goodwill disappears.
The AHSG should not fear scrutiny by supra-national courts. Scrutiny by international courts will promote peace, democracy, human rights and the rule of law. If citizens are given an opportunity to complain about how they are being treated, the possibility of any insurrection is reduced. The governed will have their grievances addressed and states shall be more informed about the needs of citizens. This is how peaceful democracies are meant to operate and grow. It will be difficult to have development without peace, security and respect for the rule of law. The AHSG should therefore do the right thing by taking a political decision at the next AU Summit in January 2013 for the universal ratification of the African Court Protocol and encourage as many states as possible to sign the optional declaration under article 34(6).