A human rights court for Africa
March 16, 2011
Last week I sat in a large conference room with human rights activists and officials from the African Court on Human and Peoples’ Rights (the Court) at a continental conference in Malawi. The object of the meeting was to raise awareness on the existence of the Court, its procedures and the process of ratification of its constitutive protocol. The Court became operational in 2006 and has its headquarters in Arusha, Tanzania. It has only handled one case since inception.
Whilst the Court is a promising institution it has not received the necessary support and acceptance from African Union (AU) member states, and citizens on the continent lack information and knowledge of this important human rights protection mechanism. It was established in terms of article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples Rights (Court Protocol). The Court Protocol was adopted by the AU in June 1998 and came into effect in January 2004 after the required 15 states had ratified it.
The Court’s effectiveness is being hampered by the slow pace of ratifications of the Court Protocol. As of 14 March 2011 26 states had ratified the Court Protocol and only 4 of the state parties had deposited the special declaration allowing individuals and NGOs direct access to the Court. It is not surprising that the 4 states allowing direct access to the actors most concerned and affected by human rights violations are the least likely to infringe regional and international instruments guaranteeing fundamental freedoms. These states are Burkina Faso, Malawi, Mali and Tanzania.
If the Court is to be effective and accessible to victims of human rights violations on the continent we should have universal ratification of the Court Protocol and compliance with future judgments of the Court. As a member of the executive committee of the Coalition for an Effective African Court the Southern Africa Litigation Centre (SALC) has actively campaigned for universal ratification of the Court Protocol and will be involved in initiating litigation at the Court. SALC will also play an active role in building the capacity of lawyers in the SADC region to litigate before the Court and monitor the implementation of its judgments.
It is important to note that the Court is not a replacement of the African Commission on Human and Peoples’ Rights (the Commission), but was set up to complement the protective mandate of the latter. The protective mandate entails receiving petitions and applications alleging human rights violations. The Commission has done some great work in discharging its protective mandate, but its rulings have invariably been ignored by the offending state parties. It is hoped that the court’s judicial orders, which are binding and final, will be complied with by state parties to ensure that remedies obtained are meaningful.
The role of civil society in popularizing the Court, encouraging litigation before it and lobbying state parties to ratify the Court Protocol as well as accept the jurisdiction of the Court to receive petitions from individuals and NGOs is therefore critical. Civil society organizations made a commitment to promote the effectiveness of the Court and campaign for the universal ratification of its Protocol. This was one of the continental conference’s key conclusions.