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Why A.U member states must ratify African Court protocols, VP, lawyers

By Bridget Chiedu Onochie (Abuja Bureau Chief)
02 November 2021   |   12:14 pm
The Vice President, African Court for Human and Peoples' Rights (AfCHPR), Justice Blaise Tchikaya, has given reasons African member states should ratify the protocols of the African Court.

Gavel. PHOTO: Getty Images

The Vice President, African Court for Human and Peoples’ Rights (AfCHPR), Justice Blaise Tchikaya, has given reasons African member states should ratify the protocols of the African Court.

Speaking yesterday at the close of the capacity building programme for Media professionals within the continent, the Vice President, who stood in for the President of the court, Justice Imani D. Aboud, stated that with prevalent cases of rights violations in Africa, the court stands to ensure the menace is confronted through unbiased judgments and proper interpretations of laws.

The Vice President decried that in the 15 years of court’s operations, only six countries accept the decisions of the court, following the withdrawal of four others for different reasons.

He however exonerated the court from factors that necessitated the withdrawal of declarations by such countries.

He said: “They have different reasons for not depositing the declaration or for withdrawing their earlier deposits. It does not have to do with the efficiency of the court.

“All the same, what I am saying is that we should have more members.”

With poor ratification of protocols and deposition of the declarations confronting the court, the Vice President noted that it has serious implications of only few NGOs and individuals accessing the court.

“The fact that African people cannot access the court is very wrong. What I can say is that we do the work of explanation of the laws of member countries.”

Tchikaya also expressed concern that many leaders of African nations do not understand the activities and worth of the court, particularly towards addressing issues of human rights violation in the continent.

“I don’t think they know the importance of the court. African leaders need to be educated on the workings and the dynamism of the court. There is need for them to know more. For now, they don’t know much. I hope that in no distance time, they will come to the court.”

Out of 55 countries in the continent, only 31 has ratified the Court’s protocol.
Worried by the development, some citizens of African nations were said to have dragged nations to ECOWAS Court.

Some of their prayers include an order compelling them to ratify the court’s protocol without further delay.

They accused nations that are yet to ratify of promoting human rights violation in their countries.

An Abuja-based lawyer, Chief Justice Oguche who spoke on the failure of the Nigerian government to deposit the declaration, stated that the establishment of African Court was to entrench regional judicial mechanism for the preservation and enforcement of the provisions of the African Charter on Human and Peoples Rights.

“It is essentially created to complement the works the Commission set up under the Charter. Unfortunately, the expectations for the existence of a regional court to cater for the affairs of rights violations within the continent is completely lost as a result of the failure of some African countries to ratify Article 35 of the Protocol of the court.

“The implication therefore is that citizens from those countries can only access the court through their home states. This in itself is a misnomer because a large proportion of violations that occur in Africa are traceable to state entities and their direct actors, and even if non-state actors are involved, it is usually at the instance of the state.

The reason for this is not far-fetched, the emergence of democracy has not in any way curbed dictatorships in the continent and allowing individual complaints to a supranational court of that nature would expose the misdeeds and aberrations of Africa’s powerful rulers”, Oguche stated.

But then, the main issue here is the validity or otherwise of Article 35 of the Protocol which mounted this barrier that has constricted the Court’s functional space as it clearly contravenes the Charter and violates fundamental rights. Firstly, it undermines the recognition of the juristic status of the individual under international law and which also is guaranteed under Article 5 of the Charter. For instance, the Nigerian state cannot be the person to take my complaints to the court when it is the very entity that infringed on my rights. Secondly, it amounts to a restriction on the exercise and enforcement of the provisions of the Charter and creates inequality of those rights between countries that have ratified the Article and those that have not, contrary to Articles1, 2 and 3 of the African Charter. The Charter construes the African peoples as a single entity for the purposes of the appointment of it’s provisions and is blind to any subdivisions and so this sense of uniformity ought to have been upheld by the Protocol. Being a regional human rights instrument, any breach of it’s provision is a violation of fundamental rights. Some citizens of the member states of ECOWAS dragged all their countries before the ECOWAS court demanding that the court compels those countries to allow their citizens direct access to the Arusha court by their immediate ratification of Article 35. The matter comes up on the 8th day of December for hearing.

Also speaking, an Abuja-based lawyer, Daniel M. Makolo, noted that the conflicts, wars and criminality on the continent are 90 per cent traceable to the various leaders, some of whom allegedly directly sponsor or promote human rights violations on their citizens.

“African leaders capture state power to service their egocentric interest wherein their record of and for human rights breaches and direct violations are unprecedented.

“So they’re afraid of their own shadows as they are mostly the violators of the very essence of the establishments of the African charter on the human and peoples’ rights.

“This is the reason why they are foot dragging in depositing the declarations to the Court. This will make the court functional and they will likely be punished for their failings and rights violations”, Makolo stated.