IRIN-WA Special Brief African Human Rights Court 98.6.05

Tel: +225 21-73-54 Fax: +225 21-63-35 e-mail: irin-wa@africaonline.co.ci

[This brief is intended as background information for the humanitarian community and does not necessarily reflect the views of the UN]

IRIN-West Africa: Special briefing on the African human rights court under OAU consideration next week at the Ouagadougou summit. 98.6.05

A HUMAN RIGHTS COURT FOR AFRICA: BACKGROUND AND ISSUES

When Heads of State and Government in the Organisation of African Unity (OAU) gather in Ouagadougou, Burkina Faso for the June 1998 summit meeting, they will decide whether to endorse a draft protocol establishing an African Court on Human and People's Rights. The trend started in Europe nearly 50 years ago with the post-war 1950 Convention for Protection of Human Rights and Fundamental Freedoms of the Council of Europe (CoE)(1). Never before had individuals alleging abuses of their basic rights been able to seek effective redress from a dedicated international judiciary - especially against their own government. The Americas followed suit some 20 years later (2).

This report comes in three parts giving the background on basic rights the proposed court will guarantee; the Commission responsible for safeguarding those rights; and the main features of the court itself.

I - BACKGROUND

On 27 June 1981, after two years of talks, OAU leaders signed the African Charter on Human and Peoples' Rights in Nairobi, Kenya. A major impulse behind the move was the legacy of bloody dictatorships in Uganda, Equatorial Guinea and the Central African Republic (CAR)(3). Like the other conventions, the African charter refers explicitly to the UN Universal Declaration of Human Rights (10 December 1948). The term "Charter" means the document is binding on member states, by contrast with the term "Declaration". The preamble mentions the need to free Africa from colonialism, neo-colonialism, apartheid, etc. (4). By the end of last year, 51 out of 53 OAU countries had ratified the 1981 African Charter.

The African charter rejects discrimination on grounds of racial, ethnic, national and social, gender, language, religion, political or other opinion, wealth, birth or any other status.It also defends the right to life, but unlike the European convention, does not prohibit the death penalty. The charter prohibits torture and inhuman or degrading punishment and treatment, slavery and trade in people. It also bans arbitrary arrest and detention along with retroactive legislation, and guarantees rights to due process of law. It guarantees "professional freedom" and mentions a "right to information" without further elaboration. The African and European pacts both guarantee freedom of association and peaceful assembly, but the European one specifically mentions trade unions.

Where the European convention guarantees free elections, the African charter is weaker, experts point out, because it refers only to "free participation in the management of public affairs" and "equal access" to public and private goods and services. Both pacts guarantee the right to education and to work in fair conditions. The European convention goes a step further than the African charter with guaranteed rights to the privacy of family life, home and correspondence. Both pacts protect family life and women's rights.

Special aspects of the African Charter

Uniquely, the African charter has three articles setting out individual duties, in line with the traditional primacy of groups over individuals on the continent. These include respect for others, for collective security, for ethics and the common interest, support to family, the nation, national security, solidarity, independence, territorial integrity and defence. Individuals also must help preserve and strengthen "positive African cultural values" and "promote and bring about African unity." The African charter also mitigates individual rights with factors such as national and African "cohesion." The risk in Africa, therefore, may be that when faced with opposition from ethnic, social or opinion groups, it would be easy for authorities to argue that dissent undermines the nation, security, solidarity and territorial integrity (5).

Of special interest among six articles defining peoples' rights, is the right to economic, social and cultural development. In a resolution passed in June 1993, OAU Heads of State and Government noted "with satisfaction that the African Charter is the first treaty that sanctions the right to development as a human right." (6) They define it as "an inalienable human right, by virtue of which every human being is entitled to participate in, contribute to and enjoy the economic, social, cultural and political development of society".

II - THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS

The second part of the African charter focuses on the practical safeguards to the rights it guarantees. These are vested in the African Commission on Human and Peoples' Rights, which is placed under the aegis of the OAU. The Commission was established in 1987 in Banjul, The Gambia. The Commission comprises 11 officials, each from a different country. They serve for renewable six year terms which governments cannot cut short. They also elect their own president and vice-president, and determine their own operational rules.

The African Commission's role is more wide-ranging than that of its European counterpart, which is confined to handling complaints. Its missions also include promotion of human and peoples' rights and interpreting the Charter. The latter leaves open the extent of the Commission's role with its provision that Heads of State may ask the body to perform "other tasks."

These tasks can include gathering material, research and investigations, seminars, symposiums and conferences, disseminating information, encouraging rights groups, providing governments with advice and recommendations. The Commission may also develop and set out principles and rules for use by African law-makers, and co-operate with other African or international institutions involved in rights issues.

Shortcomings

The African Commission's wide powers in these areas are stymied by a chronic lack of funds. Financed by the OAU, its efficiency is contingent on member states' contributions to that organisation (7). As for investigations, performance has been very uneven. At one point the Commission went through a period of "total black-out" by governments: obstruction was systematic, letters went unanswered and proposed missions did not go anywhere. Today, cooperation and dialogue have improved signficantly and investigating missions are better accepted.

It is up to the Commission to interpret any portion of the Charter at the request of African governments, of an OAU institution or of bodies recognised by OAU. In this respect, Africa is one step ahead of both Europe and the Americas, where the politically sensitive power of interpretation is hemmed in by various restrictions.

However, experts deplore that the Commission's unique power in this respect is hamstrung by the fact that in order to be binding, any interpretation must first be endorsed by Heads of State and Government. On the other hand, the Commission has made good use of its discretionary power of interpretation. For instance, the charter's restrictive requirement that only "series of serious and massive" abuses be brought before it seemed to prevent individual recourses. In practice though, the Commission's interpretation of the clause enabled it to consider individual communications (8).

Countries must file reports with the Commission every other year. The reports must detail the legislative and other measures taken with a view to giving effect to the rights and freedoms recognised and guaranteed under the charter. In June 1993, OAU leaders called for more detailed reports, especially on implementation of the right to development (9). Performance has been uneven, and by June 1993, six years after the Commission was established, only 14 countries had submitted initial reports (10). Lately, governments have begun to take this obligation more seriously.

How the Commission operates

Under the charter, the African Commission can enforce human and peoples' rights in two different ways: through inter-state and non-state "communications". Any government with good reason to believe that another member state has violated the charter may notify that other member state, with copies to the OAU and to the President of the Commission. The accused government has three months to respond and provide any relevant information. The matter is then settled within three months on a bilateral or diplomatic basis; if not, then either state can refer the matter to the Commission. Alternatively, a government may go straight to the Commission to complain about another state's alleged abuses.

The Commission must first make sure that in the matters referred to it, all internal remedies have been exhausted, unless the legal process is unduly protracted. The Commission can then require any relevant information from the governments involved and from other sources, and organise a contradictory debate.

The Commission may conclude a case amicably as long as it conforms with basic rights. Otherwise it sends a draft report to the OAU governments, but does not make any recommendation.

The charter, however, does not specify what the Assembly of Heads of State and Government should do next, other than seek a diplomatic solution.

In Europe, the Commission can publish its report and thus expose the offending government to censure by public opinion. In Africa, reports remain confidential unless Heads of State decide otherwise. Some experts point out that the more "serious and massive" the abuses, the less governments may be willing to publicise them.

The African charter, like its Inter-American predecessor, effectively enables both non-governmental organisations (NGOs) and individuals to file "communications". This right to "collective action" is a major step forward. At the time the African Charter was signed, the European Court could receive non-state complaints only from individual victims, and only on condition their government had specifically recognised both the Court's jurisdiction and its right to hear individual cases.

Another weakness of the African charter, according to legal experts, is that it fails to specify any course of action for OAU Heads of State once the Commission reports serious cases to them.

The Progress on rights protection in Africa

Opening up to NGOs and individuals was the African charter's main claim to innovation and remains its only claim to success. In its 11 years' history, the Commission has received 212 "other communications" (or an annual average of 20 or so) emanating from NGOs and individuals. Raw statistics can be misleading, though. Individuals may submit cases to the African Commission on their own and also on other individuals' behalf. NGOs may do the same on behalf of individuals and of groups, and may also assist them. This would suggest the actual number of people afforded effective protection by the African Commission is larger than the number of formal complaints.

Africa's scheme has proved remarkably well adapted to its citizens' lower awareness of rights and remedies. Indeed, most of the "communications" over alleged abuses received by the African Commission have been filed by NGOs rather than individuals. An African human rights expert told IRIN: "NGOs are a major asset for Africa. If we gave access to individuals only, it would be pathetic as we would not be going anywhere." By contrast, the European mechanism is restricted to actual victims only, and NGOs may only provide supporting evidence.

The complaints

In Africa, most of the violations involved civil and political rights, including freedom of information. The second largest category was economic and social rights. In a number of cases the Commission brokered a friendly settlement, a quicker and more flexible remedy than a judiciary procedure. Most victims were rehabilitated in their rights, and some also received compensation. On many occasions governments effectively complied with the terms of the settlement.

At the time the African Charter was signed, one of its authors, Maurice Glele (Benin) noted: "For the first time since independence, Heads of State will be unable to shy away from the duty that is thrust upon them to provide opinion about human rights abuses throughout the continent" (11). Politically this is impractical in most cases. Moreover one cannot expect governments to stand as both judges and defendants, as some observers noted at the time the African Charter was signed (12). So far, the African mechanism has not had to deal with a single "communication" from one state regarding alleged abuses by another (13). The Commission once used its powers to refer an emergency directly to the OAU Chairman. Its request that Heads of State help put en end to gross human rights violations in Rwanda reportedly went unheeded.

III - TOWARDS AN AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS

The idea of an African court was first aired in 1961 by Mnandi Azikiwe, then Prime Minister of Nigeria. By the time (1979-1981) the African Charter on Human and Peoples' Rights was in the works, the concept came under focus again thanks to Kemba Mbaye, a Senegalese lawyer, only to be left aside in 1981 for lack of adequate political support. By the early to mid-1990s, when socialism collapsed, the OAU saw a need to strengthen Africa's protection mechanism. The idea is thus at least as old as its current sponsor, the OAU (14). An African judiciary body is welcome, but its efficiency remains contingent on state sovereignty.

Against this background, African experts first met in Cape Town, South Africa, in September 1995, and drafted a protocol (15). It took some time before member states reacted to the draft with comments and observations. These resulted in a revised, more restrictive protocol, which was agreed in Nouakchott, Mauritania, in April 1997.

The text went through a final version in Addis Ababa, Ethiopia, in December 1997 (16). After endorsement by the OAU Council of Ministers on 27 February 1998, experts told IRIN it now stood a good chance of being adopted in Ouagadougou next week.

Main features of the Court

The Court will comprise 11 judges, with six-year mandates renewable once. Except for the President (and the registrar) they will sit on a part-time basis, at least initially, in order to cut costs. The appointment process and the judges' independent status will be similar to those applying to the Commission. The Court elects its President and Vice-President for two-year mandates, renewable once. For the sake of independence, the judges are likely to be academics rather than magistrates. The draft also stipulates that "due consideration shall be given to adequate gender representation in the nomination process." (17)

The Court cannot be located in the same country as the Commission, in order to maintain each body's independence. So far two countries - Senegal and South Africa - have informally indicated their interest in hosting the Court. A final decision is due once the protocol becomes effective.

Its role and jurisdiction

The Court "shall complement the protective mandate" of the Commission, according to the protocol, and avoid any overlap. Its jurisdiction is potentially wide, extending to all cases and disputes submitted to it concerning the interpretation and application of the Charter, the protocol instituting the Court "and any other relevant Human Rights instrument ratified by the states concerned." This might for instance involve the 1978 OAU Convention on the Status of Refugees. The Court also decides whether or not it has jurisdiction in a case. In addition to strong interpretative powers, the Court may also provide advisory opinions, and determines its own rules and regulations.

The African Commission, litigants, defendants and states are all granted access to the Court, as are "African intergovernmental organisations." However, access to the Court by NGOs and individuals is contingent on member governments' special acceptance of the relevant provisions. The experts' initial (1995) draft did not include this major restriction. In this respect, the Court stands where its European counterpart started decades ago.

Thus Africa's Court will take one step backward on the Commission. As noted above, NGOs have provided the bulk of the African Commission's case book so far, by contrast with the scarcity of inter-state complaints where Africa does not fare better than the Americas or Europe (18). Some experts also wonder whether the public exposure afforded by the Court's open proceedings against governments may backfire against it.

The Court must "conduct its proceedings in public". This means that the evidence and the contradictory debate get public exposure. The Court's duly motivated judgment must similarly "be read in open court." These two provisions contrast with the confidentiality the original African charter imposed on the Commission. However experts deplore that no publicity is provided for the Court's annual report, where it is specifically required to mention whether any member state has failed to comply with a Court judgement.

Ben Kioko, Chief of the Legal Affairs Section at the OAU Secretariat, warned recently: "The proposed African Court on Human and Peoples' Rights is expected to be an important instrument for the protection and promotion of human rights in Africa. However, the existence of such a court will not, per se, ensure the protection of rights if necessary political goodwill and sense of tolerance and accommodation continue to elude our societies, and particularly its leaders and opinion-makers."

The court decides its own procedures. Its judgement is final and must be rendered within three months after deliberations are completed. The Court must transmit judgements to OAU member states, the African Commission and the OAU Council of Ministers.

In the event of a violation, the Court must provide for remedies, including "the payment of fair compensation or reparation." The Court may also prescribe provisional measures "in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons." A big difference with the Commission is that the Court's judgements are binding and final. The OAU Council of Ministers monitors their execution "on behalf" of Heads of State.

The initial Cape Town Draft Protocol required ratification by 11 member states before the Court could be established. The largely similar draft for adoption in Ouagadougou calls for a minimum 15 ratifications. By comparison, it took an absolute majority of OAU member states (i.e., about two dozen) before the African Charter came into force.

FOOTNOTES

1) Signed in Rome on 4 November 1950. The convention as referred to in this report is meant to include subsequent protocols and other relevant pacts. The CoE, like the Human Rights Commission and Court, is based in Strasbourg, France. The CoE regroups all European democracies. Central and eastern European countries were allowed into the CoE only after the fall of communism in the early 1990s. This was on the strict condition that they adhered to the Human Rights Convention, complete with the right of individual recourse and full recognition of the Court's jurisdiction.

2) Inter-American Convention on Human Rights, San JosÈ de Costa Rica, 22 November 1969.

3) RenÈ Degni-Segui, 'Les Droits de l'Homme en Afrique Noire Francophone - ThÈories et RealitÈs', Librairie Carrefour, Abidjan-Cocody, 1998 ("Degni-Segui"), pp. 13-14 & 125.

4) Europe denied African colonies the benefit of the European convention: Belgium and Italy did so expressly, the UK stopped one step short of actually extending it, and France ratified the convention only after decolonisation.

5) See Degni-Segui, passim, p. 15.

6) Resolution on the African Commission on Human and Peoples' Rights, 29th Ordinary Session of the Assembly of Heads of State and Government of the Organization of African Unity, 28-30 June 1993, Cairo, Egypt ("OAU Resolution"). A UN Resolution dated 14 December 1981 subsequently recognised that "the right to development is an inalienable human right."

7) Degni-Segui, passim, p. 113.

8) Degni-Segui, passim, p. 124.

9) OAU Resolution, passim.

10) OAU Resolution, ibid.

11) Momar Kebe Ndiaye, "Droits de l'Homme sur Mesure," 'Jeune Afrique', Paris, No. 1114, 12 May 1982 pp..68-69.

12) Ibid.

13) Ben Kioko, 'The Proposed African Court on Human and People's Rights', a paper given at the 5th OAU-ICRC seminar on the Implementation of International Humanitarian Law, Addis Ababa, Ethiopia, 30-31 March 1998, p. 6 ("Kioko").

14) For more historical background, see Kioko, passim, pp. 3-5.

15) OAU/LEG/EXP/AFC/HPR/(1), 6-12 September 1995.

16) OAU/LEG/MIN/AFCHPR/PROT. (1) Rev. 2, 12 December 1997.

17) All quotes in this section are from the Draft Protocol in (18).

18) Of the 600 cases received by the European Court, the only inter-state complaint was filed by Ireland against the United Kingdom over alleged ill-treatment in Northern Ireland.

Abidjan, 5 June 1998.

[ends]

[The material contained in this communication comes to you via IRIN West Africa, a UN humanitarian information unit, but may not necessarily reflect the views of the United Nations or its agencies. UN IRIN-WA Tel: +225 21 73 66 Fax: +225 21 63 35 e-mail: irin-wa@africaonline.co.ci for more information or subscription. If you re-print, copy, archive or re-post this report, please retain this credit and disclaimer. Quotations or extracts should include attribution to the original sources. IRIN reports are archived on the Web at: http://www.reliefweb.int/emergenc or can be retrieved automatically by sending e-mail to archive@dha..unon.org. Mailing list: irin-wa-weekly]

Date: Thu, 4 Jun 1998 17:57:32 +0000 (GMT) From: UN IRIN - West Africa <irin-wa@wa.dha.unon.org> Subject: IRIN-WA Special Brief African Human Rights Court 98.6.05 Message-Id: <Pine.LNX.3.95.980604174651.32276A-100000@wa.dha.unon.org>

Editor: Ali B. Ali-Dinar

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