UNDERSTANDING THE JURISDICTION OF THE AFRICAN COURT ON HUMAN AND PEOPLE’S RIGHT.
MBANG CONFIDENCE, ESQ (DIL, LL.B, B.L, AICMC)
BEING A PAPER DELIVERED AT THE VIRTUAL INTERNSHIP PROGRAMME ORGANIZED BY THE WEST AFRICAN LAW STUDENTS ASSOCIATION (WALSA) IN COLLABORATION WITH THE AFRICAN COURT ON HUMAN AND PEOPLE’S RIGHTS (ACHPR)
DATED THIS 4th DAY OF MAY, 2023.
I was at the peak of a legal assignment when I recieved the invitation by Comr. Nasiru Sanusi (GWALSA), the President of this maiden Association-WALSA. As a breed of the combine refinery of students Unionism and lex, I had no choice than to accept same and prepare in futuro. The topic of this programme being- the jurisdiction of the African Court on Human and People’s Rights (ACHPR), reminded me of the bound we all share as African’s- the most blessed and resilent continent in the world, but not for leadership. It opened my mind to the roles we all have to play in Africa nay the world at large. The African Union being a regional bloc is very vital an organization, therefore, we cannot jettison one of it’s very lucrative arm being the African Court; a Court established, to oversee and adjudicate on matters arising therefrom. Therefore, I prepared a brief, albeit intriguing paper for intellectual digestion of the participants for this session.
I would not fail you nor my idolo.
The quest for global synergy awakened Nations in the world towards forming blocs and government to regulate and guide their affairs. This blocs exist in levels, from the sub-regional to the regional, and even the international. In Africa, the African Union (AU) is the mother bloc for fostering a dynamic force in the comity of Nation’s, it’s a regional bloc that built on the strides of her predicessor and laid a strong footprint in the league of global affairs. However, if it would always be remembered that without law and justice, man is a beast, then, the need for international, regional and sub-regional judiciality becomes inevitable. Therefore, in the African Union, the African Court on Human and People’s Rights is the repository of the power of adjudication and interpretion of the Charter, the Protocol and other human rights instruments. This paper shall discourse the Court and it’s jurisdiction in Africa, the paper submits that the jurisdiction of the Court is all encompassing, more broader than other sister-courts in alien jurisdiction, and of course, the rocky-jurisdictional approach of the Court. The paper shall also see through some cases touching on its jurisdiction and submit to the effect the jurisdiction of the court is all encompassing.
2.0 AFRICAN UNION
The African Union (AU) is a continental union consisting of 55 member states located on the continent of Africa. The AU was announced in the Sirte Declaration in Sirte, Libya, on 9 September 1999, calling for the establishment of the African Union. The bloc was founded on 26 May 2001 in Addis Ababa, Ethiopia, and launched on 9 July 2002 in Durban, South Africa. The intention of the AU was to replace the Organisation of African Unity (OAU), established on 25 May 1963 in Addis Ababa by 32 signatory governments; the OAU was disbanded on 9 July 2002.
The vision of the African Union is that of: “An integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in global arena.”
3.0 AFRICAN COURT ON PEOPLE’S AND HUMAN RIGHTS
The African Court on Human and Peoples’ Rights is the judicial arm of the African Union and one of the three regional human rights courts together with the European Court of Human Rights and the Inter-American Court of Human rights. It was established to protect the human and peoples’ rights in Africa principally through delivery of judgments. The Court has its permanent seat in Arusha, the United Republic of Tanzania.
3.1 Ratification and Declaration
It should be noted that, 54 of the 55 Member States of the African Union (AU) have ratified or acceded to the African Charter on Human and Peoples Rights with the exception of Morocco and have therefore committed themselves to respecting the principles set out therein.
Only 34 Member States have currently ratified the Protocol establishing the African Court. Out of these, only eight (8) States have accepted the competence of the Court according to its Art. 34 (6), according to which individuals and NGOs can directly file cases to the African Court.
In the absence of such a Declaration, the application must be submitted to the Banjul Commission first, which may then – after preliminary examination – decide to refer the case to the Court.
The following 34 states have ratified the Protocol;
Algeria, Benin, Burkina Faso, Burundi, Cameroon, Chad, Cote d’Ivoire, Comoros, Congo, Gabon, Gambia, Ghana, Guinea-Bissau,Kenya, Libya, Lesotho, Mali, Malawi, Madagascar, Mozambique, Mauritania, Mauritius, Nigeria, Niger, Republic of Congo, Rwanda, Sahrawi Arab Democratic Republic, South Africa, Senegal, Tanzania, Togo, Tunisia, Uganda and Zambia.
3.2 Establishment of the Court
The Court was established by virtue of Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol). The Protocol establishing the African Court on Human and Peoples’ Rights was adopted on 9 June 1998 in Burkina Faso and came into force on 25 January 2004 after it was ratified by more than 15 countries. The mandate of the Court is to complement and reinforce the functions of the African Commission on Human and Peoples’ Rights (the African Commission – often referred to as the Banjul Commission), which is a quasi-judicial body charged with monitoring the implementation of the Charter.
The Court applies the provisions of the African Charter on Human and Peoples’ Rights and other human rights instruments ratified by the States concerned. It does not have criminal jurisdiction like the International Criminal Court.
The African Court on Human and Peoples’ Rights was established to complement and reinforce the functions of the African Commission on Human and Peoples’ Rights (the African Commission – often referred to as the Banjul Commission), which is a quasi-judicial body charged with monitoring the implementation of the Charter. This means that, there was quasi-judicial commission charged with adjudication before the establishment of the Court.
3.4 The Strategic Objectives
The Court’s Strategic Objectives emanate from the mandate of the Court and include the following:
(a). Exercise jurisdiction in all cases and disputes brought before it concerning the interpretation and application of the Charter, the protocol and any other relevant human rights instruments ratified by the States concerned;
(b). Collaborate with sub-regional and national judicial bodies to enhance the protection of human rights on the continent;
(c). To enhance the participation of the African People in the work of the Court;
(d). To enhance the capacity of the Registry of the Court to be able to fulfil its mandate; and
(e). To enhance working relationship between the Court and the African Commission.
The Mission of the Court is to enhance the protective mandate of the African Commission on Human and Peoples’ Rights by strengthening the human rights protection system in Africa and ensuring respect for and compliance with the African Charter on Human and Peoples’ Rights, as well as other international human rights instruments, through judicial decisions.
The vision of the Court is to ensure an Africa with a viable human rights culture.
3.7 Core Values
The Court bases its core values on the African Charter and other internationally recognized principles of human rights and the promotion of the rule of law. The Court continues to foster and uphold the following core values:
(1). Judicial independence from any partisanship, bias, influence, whether it comes from States, NGOs, funding agencies or individuals.
(2). Fair and impartial application and interpretation of the provisions of the African Charter, the Protocol, the Rules and other relevant international human rights instruments.
(3). Transparent and ethical accountability in the operations of the Court.
(4). Fundamental rights of every individual to enjoy basic civil, political, social, economic and cultural rights are upheld.
(5). Collaboration with relevant stakeholders in pursuance of the Court’s objective of protecting human and peoples’ rights.
(6). Non-discrimination and equality in performance of the work of the Court.
Integrity of the Judges and staff working at the Court.
(7). Provide equal access to all potential users of the Court.
The Court is also responsive to the needs of those who approach the Court.
4.1 Subject matter
Before the African Court, two provisions are central when it comes to its subject matter jurisdiction.
First, Articles 3 (1) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as African Court Protocol) “the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.”
Second, Article 7 provides that, “the Court shall apply the provision of the Charter and any other relevant human rights instruments ratified by the States concerned.”
It should be parenthetically noted that, Article 3 (1) therefore goes even further than its European and American counterparts to wit: While Article 32 (1) of the European Convention provides that the ECHR’s jurisdiction covers all matters concerning the interpretation and application of the European Convention and its protocols, Article 62 (3) of the American Convention affirms that the IACHR’s jurisdiction comprises all cases concerning the interpretation and application of the American Convention. The African Protocol, by contrast, extends the jurisdiction of the African Court to include all cases concerning the interpretation and application of the African Charter, the Protocol and any other relevant human rights instruments ratified by the states concerned.
While the first two limbs (the Charter and the Protocol) are not surprising, the third limb certainly is. The provision seems to enlarge the subject matter of the African Court in contentious cases to include all other human rights instruments.
The use of qualifiers such as “relevant,””ratified,””human rights” and “by the state concerned,” however, may also be interpreted to limit the Court’s subject matter jurisdiction.
4.2 ACCESS TO COURT: SUBJECT MATTER ISSUES ABOUNDS
Article 34(6) of the Protocol provides thus: “At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to recieve cases under article 5(3) of this Protocol. The Court shall not receive any petition under article 5(3) involving a State Party which has not made a declaration.”
To fully appreciate the above provision, it is pertinent to establish that there are ‘two avenues’ leading to the African Court. The first, being the African Commission,- here, individuals do not submit petition, rather, the African Commission and the Respondent State act as the legally accepted persons to so submit. In this respect, the Court applies a similar approach to the Inter-American Human Rights System. Individuals petitions (same with NGO’s) are only submitted after the admissibility and merit phase conducted by the Commission. Thereafter, the Commission reserves the discretion to submit the petition.
The second avenue leads directly to the Court. Article 5 provides that the African Court shall directly recieve complaints from a state whose citizen us victim of a human rights violation.
It should be noted that access to Court by states remains automatic after ratification of the Protocol. However, states rarely initiate human rights actions against another due to the relationship existing between them and of course, the fear of retaliatory actions therefrom.
Interesting, despite the above postulations and submissions, the avenue to the African Court can be directly accessed by both the individuals and NGO’S. This however with a condition,- an “opting in” declaration by the State Party concerned. This gimmicks would be best understood when it is reminisced that Article 5(3) of the Protocol provides that, ” the may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission, and Individuals to institute cases directly before it, in accordance with article 34(6) of this Protocol.” Note that, the phrase “may entitle” as used in the provision does not confer any iota of discretion on the Court to refuse hearing a case; any discretion would cause unnecessary administrative bottlenecks on individuals who would have to travail two procedural requirements- thus rendering the process burdensome even with the states acceptance of article 34(6) provision.
The discretionary language was due to the drafting history of the Protocol, when direct access was totally at the discretion of the Court. Therefore, since direct access became subject to an “optional state” declaration, the failure to expunge the language became a mere legislative oversight. The provision should therefore be interpreted to mean “direct access” to the Court within the sole requirement of- states parties. Regarding subject matter jurisdiction, it may be settled that states that has not accepted the optional individual complaint procedure under Art. 34(6) seems that, the Court usurps jurisdiction against it under Art. 3- this is more because the extended jurisdiction by Art. 3 runs idle rendering it unattractable by states. This is more realistic as out of the 26 states that have ratified the Protocol, only 6 states, namely; Burkina Faso, Ghana, Malawi, Mali, Tanzania and Rwanda had made a declaration in January 2013, allowing NGO’s and Individuals to access the Court directly. The extended jurisdiction applies to only states that have actually made opt-in declaration, failure of which, cases must first be presented to the Commission for only violations of African Charter provisions. Art. 56(2) provides that, “Communications shall be considered if they are considered compatible with the Charter of the he Organization of African Unity or with the present Charter.
4.3 Contentious Jurisdiction of the Court
Under Article 3 of the Protocol, the Court has jurisdiction to deal with all cases and disputes submitted to it regarding the interpretation and application of the Charter, the Protocol and any other relevant human rights instrument ratified by the concerned States.
The Court can only deal with cases submitted against Countries that have ratified the Protocol and deposited the Article 34(6) Declaration in cases involving individuals and Non-Governmental Organisations. The case must involve allegations of human rights and those alleged violations must have taken place in the State concerned after it ratified the Protocol, unless the alleged violations are on-going.
4.4 Advisory Jurisdiction of the Court
Under Article 4 of the Protocol, the Court may, at the request of a Member State of the African Union, any of the organs of the African Union, or any African organization recognized by the African Union, provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.
5.0 SOME DECIDED CASES
kodeih v. Benin (provisional measures) (2020)4 AFCLR 18
The Applicant contended before the Court that the judgement of the First Class Court of First Instance in Cotonou – finding them liable for non-compliance with the building permit of their building, and thereby ordering demolition of same and fine; violated their right to fair trial to property under Art. 7 and 14 ACHPR.
The Court noted that Art. 27(2) of the Protocol, provides that , “in cases of extreme gravity and urgency and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.”
The Court further noted that the Respondent ratified the Charter and Protocol, and already opt-in the declaration for direct jurisdiction pursuance to Art. 34(6) and 5(3) of the Protocol; that all rights alleged to have been breached by the Respondent are in the Charter – 3(1). The Court noted that it has prima facie jurisdiction and does not have to convince itself of having actual jurisdiction.
The Court thereafter, granted an interim order staying the execution of the judgement of the lower court till the case was heard on the merit.
In Amudo v. Tanzania (reopening of pleadings) (2020) 4 AFCLR 31
In the Application 012/2015, the Applicant alleged that the confiscation of his passport, the imposition of an “illegal immigrant” status and his expulsion from the Respondent State deprived him of the rights to nationality, freedom of movement liberty and security of person as protected under the Tanzanian Constitution and the Universal Declaration on Human Rights. The Court declared that the Respondent arbitrarily deprived the Applicant of Tanzanian Nationality in violation of Art. 15 of the UDHR, that the Applicant’s right of not being expelled arbitrarily was breached, and the right of Applicant to be heard was breached contrary to Art. 7 of the Charter and 14 ICCPR.
The Court ordered the pleadings to be reopened in the interest of justice.
Abdoulaye Nikiema (Norbert Zongo) v. The Republic of Burkina Faso
In December 1998, Norbert Zongo, a journalist and editor of a Burkinabe newspaper, L’Indepependant, was found dead in his car. His beneficiaries and independent investigators concluded that Zongo was assassinated in retaliation to a story he was working on which implicated the younger brother of the President of Burkina Faso in the torture and murder of another man. The investigation into the assassination identified six suspects, all members of the Presidential Guard, however charges were only brought against one suspect and those charges were later dismissed.
In response to Burkina Faso’s failure to adequately investigate the assassination, the beneficiaries of Norbert Zongo initiated a case before the African Court on Human and Peoples’ Rights alleging Burkina Faso had violated Articles 1, 2, 3, 4, 7, and 9 of the African Charter on Human and Peoples’ Rights, Articles 2 (3), 14, and 19 (2) of the International Covenant on Civil and Political Rights and Article 8 of the Universal Declaration of Human Rights.
The African Court of Human and Peoples’ Rights held that Burkina Faso violated Articles 1 and 7 of the African Charter on Human and Peoples’ Rights, as well as Article 9(2) (read together with Article 66(2)(c)) of the Revised Economic Community of West African States (ECOWAS) treaty. The court held that by failing to investigate a journalist’s murder, Burkina Faso chilled the freedom of expression of other journalists.
Lohé Issa Konaté v. The Republic of Burkina Faso
In August 2012 the journalist Lohé Issa Konaté wrote two articles for the newspaper L’Ouragan, in which he accused a state prosecutor of corruption. In response, the prosecutor filed a complaint against Mr. Konaté and a co-defendant for defamation, public insult, and contempt of court. Criminal charges against both defendants were also filed and damages sought.
In October 2012, Mr. Konaté was found guilty by the Ouagadougou High Court and sentenced to 1 year imprisonment, a fine of US $3000, and damages to be paid to the prosecutor of US $9000. Moreover, the Court also suspended the newspaper which published the articles, L’Ouragan, for 6 months. The decision was subsequently upheld by the Ouagadougou Court of Appeal. In June 2013, an application was filed on behalf of Mr. Konaté before the African Court on Human and peoples’ Right (ACHPR) alleging that the excessive penalties imposed violate his freedom of expression rights as guaranteed by Article 9 of the African Charter on Human and Peoples’ Rights (“Every individual shall have the right to express and disseminate his opinions within the law”), Article 19 of the International Covenant on Civil and Political Rights (“Everyone shall have the right to freedom of expression”), and Article 66(2)(c) of the Treaty of the Economic Community of West African States (ECOWAS) (states must ensure respect for the rights of journalists); all three of which Burkina Faso is a party to.
The application was brought by the Media Legal Defense Initiative (“MLDI”), which is a NGO dedicated to providing legal defense to independent media, journalists, and bloggers who are under threat for their publications. MLDI’s goal is to promote freedom of expression, as supported by international standards, in the media. MLDI has assisted over 1,500 journalists worldwide and prides itself on providing high quality legal defense in the area of freedom of expression.
On 5 December 2014, the African Court of Human and Peoples’ Rights delivered a landmark judgment in its first case concerning freedom of the press. The judgment overruled the conviction of the journalist Lohé Issa Konaté who had faced harsh criminal penalties levied by Burkina Faso following charges of defamation for publishing several newspaper articles that alleged corruption by a state prosecutor. The Court found that the conviction was a disproportionate interference with the applicant’s guaranteed rights to freedom of expression. It noted that public figures such as prosecutors must tolerate more criticism than private individuals. Furthermore, the Court ordered Burkina Faso to amend its legislation on defamation in order to make it compliant with international standards by repealing custodial sentences for acts of defamation; and to adapt its legislation to ensure that other sanctions for defamation meet the test of necessity and proportionality, in accordance with the country’s international obligations.
The paper have succeeded to remind us of the importance of the African Union in the comity of Nations, the establishment of the African Court in Human and People’s Rights and it’s jurisdiction, the mandate, vision and mission of the Court. It is expected that the Court would continue to keep up with it’s mandate, and also liverage on it encompassing jurisdiction.
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