Rights court undermined by states’ resistance
THE African Court on Human and Peoples’ Rights (African Human Rights Court) holds great promise in protecting human rights and ensuring justice on the continent. But it operates amid resistance by states and this threatens its effectiveness and very existence.
The court is the AU’S judicial arm, and sits in Arusha, Tanzania. It is one of three regional human rights courts in the world. The others are the European Court of Human Rights and the Inter-american Court of Human Rights. The African court began operating in 2006. The court entertains cases of alleged violations of human rights stated in the African Charter on Human and Peoples’ Rights, and other relevant human rights instruments that have been ratified by the state concerned. Its judgments are binding.
Cases can only be brought against states that are party to the court’s protocol. States that are, along with the African Commission on Human and Peoples’ Rights and African intergovernmental organisations, can bring cases to the court directly. NGOS with observer status at the commission and individuals can only access the court directly if the relevant state party permits them to do so. Otherwise, individuals and NGOS can only access the court if the African Commission takes their case to the court. Requests for advisory opinions can be submitted by the AU or its members or organs, or African organisations it recognises.
Despite current restrictions on direct access to the court, it has lived up to its promise in most cases. It has issued some progressive and groundbreaking decisions and remedies, including substantial reparations.
For example, it found, in response to a request brought by the Pan African Lawyers Union that vagrancy laws, which many AU member states retain on their statute books, were incompatible with African human rights standards. That’s because the laws criminalise poverty, homelessness or unemployment.
The court has also required states to uphold rights and principles of fairness, transparency and inclusiveness in elections during the Covid-19 pandemic. States should not use the postponement of elections to “unduly” prolong elected officials’ term of office.
In contentious cases, the court has enforced rights such as fair trial rights, the right to property as well as the right to participate freely in government, freedom of association, freedom of expression and non-discrimination. It has made it clear in a case against Kenya, for example, that environmental conservation and development policies cannot be at the expense of the rights of indigenous communities. It has also shown that it will not defer to states on difficult issues such as nationality.
The court has enforced marriage and inheritance rights in a case against Mali, highlighting the rights of women and girls. In a case involving Tanzanians who had been sentenced to death, it affirmed states’ obligation to remove mandatory death penalty from their laws. It has set a precedent for non-criminalisation of defamation, in a case involving a journalist in Burkina Faso.
But sadly, the court’s success in protecting human rights and upholding the rule of law is undermined by state resistance.
Only 31 of 55 AU member states have ratified the court’s protocol. Only six states – Burkina Faso, Gambia, Ghana, Malawi, Mali, and Tunisia – permit individuals and NGOS direct access to the court.
Some countries have withdrawn their permission for individuals and NGOS to access the court, following adverse decisions against them – Rwanda, Tanzania, Benin and Ivory Coast.
States have further failed to ensure that the court has the human and financial resources to function effectively.
The court has a serious non-compliance crisis. About 75% of states do not comply with the court’s decisions, and there are no built-in consequences in its protocol. The court’s orders indicate that states that fail to pay reparation amounts within a stipulated time frame will pay interest on arrears. Only one country – Burkina Faso – has fully complied with the court’s judgments. Some states, such as Tanzania, have complied with only some aspects of decisions.
The court is concerned that resistance to its decisions threatens not just “the effective discharge of its mandate, but its very existence”.
It is crucial that African countries translate their commitment to human rights on paper into practice. It is important for the court to stay the course. Retrogression, for fear of risking further exits, is not an option when it comes to protecting human rights.