Monday, 2nd October 2023

20 years on, human rights languish amid African Court’s protocol

By Bridget Chiedu Onochie, Abuja
18 September 2023   |   4:15 am
Having ratified Article 34(6) of the Protocol establishing the African Court on Human and Peoples’ Rights and carry out necessary obligations, it behooves on member states to deposit the declaration on Article 34(6), which enables individuals and non-governmental organisations (NGOs) of its nations to have direct access to the court in case of perceived rights violation.

Lateef Fagbemi (SAN), AGF

About two decades after the establishment of the African Court on Human and Peoples’ Rights, several countries, including Nigeria, have remained adamant towards activating Article 34(6) with dire consequences on citizens’ rights,

Having ratified Article 34(6) of the Protocol establishing the African Court on Human and Peoples’ Rights and carry out necessary obligations, it behooves on member states to deposit the declaration on Article 34(6), which enables individuals and non-governmental organisations (NGOs) of its nations to have direct access to the court in case of perceived rights violation. But it does appear that countries withholding activation to the article are afraid they would infringe on the rights of their citizens and would not want to be taken to the international stage for adjudication.

African Court was created pursuant to a protocol to the Banjul Charter adopted in 1998 in Burkina Faso by the Organisation of African Unity (OAU), now African Union (AU).

The protocol came into force in 2004 following ratification by more than 15 countries including Nigeria.

The court’s first judges were elected in 2006 and it issued its first judgment in 2009 as the judicial arm of AU.

Although Nigeria has one of its justices sitting on the Court’s panel, it has been indecisive on the issue of article 34(6), a situation described as a deliberate attempt to violate citizens’ rights and at the same time, deny them access to ventilating their grievances.

It was alleged that it would be almost impossible for a government, whose citizens are deprived and traumatised in every aspect of life, to deposit an article that will empower the citizens to drag the same government before the court.

The Charter states, “The Court may entitle relevant NGOs with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34(6) of this Protocol.”

As important as the article appears, not up to half of African member states have deposited it. Although Burkina Faso, Ghana, The Gambia, Mali, Guinea Bissau, Malawi, Rwanda, Tanzania, Cote d’Ivoire, Benin, Niger, Guinea Bissau, and Tunisia deposited the special declaration, about four of them made a u-turn within four years.

Rwanda withdrew the article 34(6) declarations in 2016, Tanzania 2019; Cote d’Ivoire in 2020 and the Republic of Benin in 2020.

The Centre for Human Rights, University of Pretoria, reacting to this development, noted that while it was not out of place to disagree with decisions of the courts, such disagreements should not warrant withdrawal by States since such step does not absolve the state party of its obligation to comply with the decisions already reached by the court.

It added that while it is the sole prerogative of states to make the declaration allowing direct access to individuals and NGOs, states should always keep in mind the primary motivation for making the declaration, which is to ensure access to remedy at the continental level for human rights violations when local remedies prove unavailable, insufficient, or ineffective.

“While there still remain avenues to seek remedy from the African Court through the African Commission, the practice has shown that this route is extremely under-utilised, leaving access to remedy from the African Court almost impossible without the article 34(6)-declaration.

“States should therefore be very cautious about exercising the option of withdrawing their article 34(6) declarations as such an action diminishes the established right to access justice of its nationals.”

The centre held that the African Court remains the central institution for effective regional accountability mechanisms for providing ‘African solutions to African problems.”

But the withdrawals have largely been blamed on the differences between local and international laws and on matters of sovereignty. This is because the African Court’s decisions are regarded as inconvenient to national political interests.

Although its jurisdiction touches on sovereignty of states, it was felt that such should be accepted by state parties since that was the reason behind adopting the instruments.

While beckoning on withdrawing member states to return, all eyes are on Nigeria to take a leap by declaring the article so that others can be motivated.

One of the reasons behind the sustained agitation for declaration of the article lies in the increasing cases of rights violation on the continent.

Amnesty International had in one of its recent reports, decried issues of rights abuse by the States against their citizens. According to the report, the inability of the government to protect its citizens is a clear case of right abuse.

Others are killings, maiming and displacement of thousands of civilians in an armed conflict between the military and terrorist groups.

“All parties to the conflict committed violations of international law, including war crimes with impunity. Elsewhere, unlawful killings and violence were perpetrated by bandits but the authorities responded with enforced disappearances, torture, arbitrary detention and severe restrictions to freedoms of expression and peaceful assembly. Media outlets and journalists had their freedom of expression curtailed by the authorities.

“Activists and protesters faced restrictions on their rights to freedom of expression and peaceful assembly. More than 60,000 people were forcibly evicted from their homes. Failure to protect people from the effects of climate change led to deaths and displacement,” the report reads.

The group listed other cases to include the alleged secret forced abortion programme in the North-East since 2013 that had terminated at least, 10,000 pregnancies without the consent or prior knowledge of the women and girls concerned; seven-month ban on the social media platform Twitter; suspension and shutting down of media outfits; clamping down on protesters and arbitrary arrest of journalists.

Although African Court provides that matters ought to have been treated at the national and regional courts such as ECOWAS Court of Justice before approaching African Court, cases of rights violations would have abated if the Court is strengthened to decide on the numerous cases of abuse across the continent.

A Port Harcourt-based lawyer and a researcher on African Court, Chief Festus Oguche, felt that the high expectation that the Court will usher in an environment of ideal freedom, equality and justice by taking centre stage has eluded the continent.

According to him, Article 34(6) dealt a deadly blow on the expectations by imposing restrictions on individual access.

Decrying the human deterioration, he said the issue has escalated more than it was before the creation of the court.

“This is so because the court’s jurisdiction is hamstrung by this questionable requirement that even impinges itself against the express provisions of the Charter recognising the juristic status of individuals under international law, and the right to judicial access, which is a fundamental right.”

Oguche described the reluctance of states to declare the Article as self-serving and parochial.

He said: “Most African countries including those that exhibit democratic constitutional frameworks operate under veiled tyrannical orders that render the idea of human rights and fundamental freedoms antithetical to their interests.

“That also explains the widespread weakness of Africa’s domestic judicial institutions, which themselves, are ensconced into the said order as instruments and appendages of the autocratic system.

“This is the sad reality of the circumstances of the human rights regime on the continent which has created a high profile of violations. Thus, both the Charter and the human rights Court are seen more as window dressing mechanisms to create impressions of compliance with global human rights norms.

“Apparently, that was the reason African Union members decided to merge the Court of human rights with the Court of Justice ostensibly to have a single judicial organ for the Union, citing costs and efficiency, which is as bizarre as it sounds.

“Now, we have the African Court structured or rather subsumed into the African Court of Justice and Human Rights.

“This merger necessitated the division of the court into one of general affairs and another of human rights, each composed of eight judges with the jurisdiction of the human rights court submerged and lumped into that of the general affairs court which exercises both civil and criminal jurisdictions.

One begins to wonder how anybody would think that such a clumsy arrangement will create the veritable pedestal for efficient justice delivery.”

Adding: “But then, we are confronted daily with the worst forms and degrees of violations on the continent in manners that jolt human sensibilities and such that adorns both the Charter and the court with hypocritical vestments and colouration.”

Oguche felt that it is either there is a human rights court that is functional to its mandate or nothing at all. “The Idea of hedging on its essentials by the African leadership not only betrays their innate intentions and disposition to human rights but also explains the widening dimensions of abuses on the continent.”

He further described Nigeria as a microcosm of the continent which can be used to mirror the status and standards of human rights defiance or compliance in Africa.

He added that the Nigerian situation though sad, was not so much of the violations but the direct participation of government and state actors in gross violations across every infringement, which is replicated in other countries in the continent.

“Nigeria ranks among the countries that defy court orders and judgments. This is in spite of the fact that it is also the first to fulfill its quota of employment and other privileges the court offers to AU member states.

“The country has produced a Vice President of the court in the person of Elsie Justice Nwanwuri Thompson without hearing one single human rights complaint from her fellow countrymen until she retired. It currently has Justice Stella I. Anukam as member of the judicial panel and by her pronouncements, it is clear that she is either bored or outrightly frustrated over the restrictions to individual access imposed by Article 34(6) of the Protocol on the court.

“To most African countries, the jurisprudence of the court informed by its decisions are as good as non-existent and dead on arrival. Nigeria falls squarely within the category of such countries that have no single regard for the court’s judgement by its defiance of the judicial measures prescribed by the court for adherence to human rights by member states.

“For instance, the Court had in interpreting Article 13 of the African Charter on the right to political participation in the case of Rev. Mtilika and Tanganyika Law Society against the Republic of Tanzania, stated that the right to independent candidacy is a fundamental right. It adds that any provision compelling an individual to join a political party as a condition to participate in the electoral process is a violation of his right to freedom of association and the right to political participation under the charter.

“In the judgment, the court enjoined all member states to amend their domestic laws or constitutional instruments to conform with the standards as contained in its interpretation of Article 13 to allow independent candidacy in their electoral processes.

Till date, Nigeria is yet to implement this decision of the court and still retains the mandatory provision that compels membership of a political party as a condition for candidature in every election process.”

In the face of all the heightened rights violation on the continent, Oguche has canvassed the expunging of Article 34(6) from the protocol on the ground that the right to access the court is a fundamental right that is inviolable.

According to him, such right does not lie in the bosom of member states to determine whether or not an individual complainant should be heard by the court on the basis of admissibility.

“That right is already enshrined by the Charter and not one to be defined by state parties. Secondly, state members cannot on their own constrict or limit the juristic personality of its citizens outside the international law recognition of their personality.

“Thirdly, it is a grave misnomer that lacks every logic and good thought that human beings can be restricted from accessing a human rights court by the particular state, entity or authority that violates those rights.

“This is a contradiction, and it is contrary to common sense and sound reasoning, and it can only flow from drab intelligence,” Oguche said.