Saturday, December 25, 2010

African rights court a white elephant?

By Bernard James
When the African Court of Human and People’s Rights (AfCHPR) became fully operational in 2008, many thought it would soon be overwhelmed by cases due to widespread human rights violations in the continent.

To the contrary, the court headquartered in Arusha, Tanzania, has received only one case so far, part of the reason being that many people, including Non Governmental Organizations (NGOs) dealing with promotion and protection of human rights are unaware of its operations.

The situation has prompted the AfCHPR secretariat to launch a series of campaigns to sensitize relevant stakeholders and individuals about its mandate to make them better informed.

Why this situation?
The knowledge gap was evident at a one-day seminar which sought to sensitize organizations best placed to educate and inform people on their rights, and the remedies and procedures available to them when seeking the court’s intervention.
“It is apparent that the reason for not receiving cases is not so much that there are no human rights violations in Africa, but because stakeholders do not have adequate information about the court’s existence, location and its readiness to receive cases,” Zanzibar’s First Vice President Seif Sharif Hamad said when officiating the seminar.

Mr Hamad noted that stakeholders were not sufficiently aware of the mandate of the court and the procedures for submitting cases before it.
According to Mr Hamad, lack of cases at AfCHPR stems from the fact that many African Union (AU) member states have either not ratified the Protocol of the court, or have not deposited the declaration permitting individuals and non-governmental organizations to have direct access to it.

Tanzania is one of the 25 AU member states which have ratified the protocol of the court and one of the only four member states to have deposited the declaration allowing direct access to the court by individuals and NGOs. The rest of AU countries are yet to allow individuals and NGOs to access the court.

Presenting the general overview of the court, Judge Joseph Mulenga, one of its judges, said the court was making efforts to make more states ratify its protocol.
“The ratification process is more of a political decision by member states. The court cannot as such directly do anything about the decision except we are determined to continue sensitizing stakeholders to understand why this court was established and what support it needs in order to discharge its mandate,” says Justice Mulenga.

He observed that the court had been approaching and sensitizing individuals and organizations that have the role to push their government to ratify the protocol.
It also became evident during the meeting that the decision by many states to withhold access to the court was due to fear that people with human rights concerns will abandon local courts in favour of the AfCHPR, thus somehow jeopardizing state interests.

But Justice Mulenga allayed such fears on grounds that the existing procedures compel litigants to fully exhaust local remedies before going to AfCHPR.
“Politically the decision to withhold access to the court is out of fear by states. So we must work together to allay the fear that the operations of the court will jeopardize interests of the State. This is because we have a rule that those who are coming to us must first exhaust local remedies. So the fear that people will abandon local courts and rush to us is unfounded,” he said.

The executive director of the Legal and Human Rights Centre (LHRC) Mr Francis Kiwanga also attributes lack of cases at the court mainly to the refusal by African government to allow individuals and NGOs to access the court, as they are not willing to be held accountable for human rights abuses. “There is a very high level of impunity among African leaders, and that is why they are not ready to allow NGOs to go there,” Mr Kiwanga said when contacted by telephone.

Another hindrance, according to Mr Kiwanga, was the requirement that those intending to utilize the court should first exhaust local remedies.

However, he said his organization would not hesitate to use the court as a last resort. “We have even advised reverend Mtikila to go there to challenge a decision barring independent candidates contesting elections in Tanzania,” Mr Kiwanga said.
The Protocol to the African Charter on Human and Peoples’ Rights on the establishment of ACHPR gives the court jurisdiction over all matters and disputes brought to it relating to the interpretation and application of the charter, the protocol and any other relevant human rights instruments ratified by the states concerned.
It also has jurisdiction to give advisory opinion on any legal matter relating to the Charter, or any other relevant human rights instruments.

Judge Fatsah Ouguergouz of AfCHPR says in a paper on “Access To And Litigation Before The Court” that the rules of the court have been promulgated with the objective of facilitating access to the court to applicants.

“What remains is to test these provisions through submission of applications, so as to evaluate whether indeed they will provide recourse to applicants,” Justice Ouguergouz says.
He also feels that lack of cases to the court and a few number of member states ratifying the protocol of the court was eating on the legitimacy and effectiveness of the court.  

Entities that have direct access to the court include the Commission for Human and Peoples’ Rights, a state which has lodged complaint to the commission, or a state the subject of the complaint, and a state whose citizen is a victim of human rights violation, as well as African inter-governmental organizations.

Under Article 5 (3) of the protocol, NGOs with observer status before the commission and individuals are also allowed to institute cases at AfHPR.

However, access by individuals or non-governmental organizations to the court is not automatic, as it has been proscribed by the protocol. This is not withstanding that individuals are the primary victims of human rights violations
“The lack of resources, geographical factors, illiteracy and many other constraints are some of the critical factors which are likely to affects access by individuals,” says advocate Bahame Nyanduga.

He observes: “If AfCHPR is to become effective, more states must ratify or accede to the protocol and submit a declarations guaranteeing direct access by victims and NGOs to the court, otherwise the African Court shall for a longtime remain a white elephant,” Mr Nyanduga says.

Political pressure
At the meeting, the director of advocacy and reforms with the Legal and Human Rights Centre (LHRC) Mr Harold Sungusia was concerned about the mechanisms that the court has in place to withstand interference and political pressure from governments. He cited the suspension by governments of the Southern African Development Community (SADC) Tribunal after Zimbabwe rejected a ruling of the tribunal on a land grabbing case.

But AfCHPR’s Justice Mulenga said the court was well prepared to counter such moves: “Political pressure on the judiciary--whether international or national-- is not a new thing at all. Those are always there…but judges are sworn in to administer justice without fear or favour. We do the same at AfCHPR,” he said.

Mr Mulenga added that the best way of preventing interference was to succeed in sensitizing the masses on the work of the court and get moral consensus to tell the world that “this court has roots from the people”. “That will make governments refrain from abolishing the court,” he noted.

Contributing on the role of civil society organizations in promoting AfCHPR, the leader of the opposition Democratic Party and a distinguished human rights defender, Reverend Christopher Mtikila said the court was the best available weapon to defeat post colonial dictatorship and widespread human rights abuses in Africa.

Program manager at the Media Council of Tanzania (MCT) Ms Pili Mtambalike told participants that the media provides the best opportunity to inform the public and organizations working to protect human rights in Tanzania how to access the court.

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