NOVEMBER 26, 2014 By Alpha Rashid Jalloh
For decades it was the International Criminal Court (ICC) in The Hague and the European Court for Human Rights that were spreading their tentacles far and wide in trying cases on war crimes and human rights respectively, but for the first time in history, Africa could now boast of its own court known as the African Court on Human and Peoples’ Rights based in Arusha, Tanzania in East Africa.
The African Court on Human and Peoples Rights was established by virtue of Article 1 of the protocol to the African Charter on Human and Peoples Rights envisaging the establishment of an African Court so as to ensure the protection of human and peoples’ rights in Africa. The protocol establishing the court was adopted on 9 June 1998 in Burkina Faso and came into force on 25 June 2004. The Court came to fruition through the creation of the African Union (AU), which is the continental union, but at its initial stage it is faced with several challenges that mainly includes the lack of cooperation of member states in signing its protocol and making declarations, which would give it the requisite jurisdiction on the continent that it deserves so as to try cases from all over the continent. Many member states of the AU have not still signed the protocol and among those that have signed, some have not yet made a declaration. It is a great impediment to the Court. It has prevented individuals and organizations in African states which have not ratified the protocol from having access to the Court. Among the countries that have neither signed the protocol nor made a declaration is Sierra Leone which could boast of having a Special Court for War Crimes set up in 2000 to try those who bear the greatest responsibility for the almost eleven years war that overtook events in the country from 1991 to 2001.
The African Court on Human and Peoples’ Rights based in Arusha, Tanzania has called for support and cooperation from member states of the AU so as to enable it carry out its mandate effectively. This is the time when Sierra Leone should make use of the opportunity by signing the Court’s protocol. The Sierra Leone judiciary was invited to a conference of Chief Justices in 2013 in which Sierra Leone’s judicial representative actively participated. It is now hoped that parliamentarians and all stakeholders including civil society would make this issue a preference in the country’s political agenda. I guess the remark most people in reading this article would make is that, the country is currently encumbered by the Ebola pandemic. It is quite clear that the whole world is aware that the Ebola pandemic has overtaken events and is now the country’s’ top most priority, but Ebola is not forever. It is hoped that when the pandemic would be over, among the issues that would be a priority for the president, the parliament, the cabinet and all stakeholders would be the signing of the protocol of the African Court on Human and Peoples Rights. It is necessary for the country to boost its human rights status which would be a cap on our feather within the international comity of nations.
The non-signing of the Court’s protocol has prevented individuals and organizations including NGOs and human rights organizations to have access to the Court to seek redress at continental level. Since the adoption of the Court’s protocol in 1998, only 26 of the 54 member states of the African Union have ratified it. As stated above, in addition to the ratification of the protocol, states have to make a declaration to enable individuals and organizations to take cases to the Court in Arusha, Tanzania. I was one of the international journalists who were invited to the Court’s continental media conference in 2013. Many of my colleagues from other countries boasted to me that their countries have either signed the protocol and make a declaration or have just signed the protocol. Unfortunately my country Sierra Leone has not even ratified the protocol for which I urge our government, President Ernest Bai Koroma, the Attorney General and Minister of Justice, parliamentarians and all stakeholders in our democratic dispensation to endeavour and make the necessary preparation to ratify the protocol.
Coming back to the Court itself which is staffed with diverse nationalities, the current president of the Court is Ghanaian Sophia A.B. Akuffo who has been leading the Court’s delegation to several African countries to apprise leaders and governments of the Court’s role and mandate in human rights trials. The staffs, including judges are drawn from different countries in Africa.
What needs to be known about the Court
But in my discussions with people since I returned from the Arusha Media Conference in 2013, I have discovered so many issues which people are ignorant of and for which they need to be enlightened. There has always been confusion in the minds of people as to the distinction between the African Court on Human and Peoples Rights and the African Commission on Human Rights. In the former, decisions are binding when once they have been pronounced, because they are judicial in nature, while in the Commission decisions are not binding. Many people, especially Sierra Leoneans, do not know of the existence of the Court and its composition. Since I started publishing articles about it, readers have made enquiries. But I have always made it clear to my fellow Sierra Leoneans that the Court is not like the Special Court for War Crimes in Sierra Leone which was set up for a particular purpose and only for a specific time. The African Court on Human and Peoples’ Rights permanently and currently deals on human rights issues that are filed to it by individuals and organizations from different countries in Africa that have signed its protocol and have made a declaration. Those that have not done so are not within the jurisdiction of the Court. If any matter is filed to the Court from such countries, it will have no jurisdiction to try such matters and therefore has to throw the matter out.
The other question that many have asked me is; who are entitled to submit cases to the court? Those entitled are; 1. The African Commission on Human and Peoples’ Rights through which cases could be filed. 2. A state party to the protocol of the Court which had lodged a complaint to the Commission. 3. On the other hand a state party to the protocol itself against whom a complaint has been lodged to the Commission can also file a case. 4. A citizen of a state party to the protocol who is a victim of a human rights violation. 5. African intergovernmental organizations or NGOs. Article 5 (3) of the Protocol provides that relevant NGOs with Observer status before the Commission and individuals can institute cases directly before the Court, if the State party they are complaining against has made a declaration under Article 34 (6).
One other obvious question is; what is the relationship between the African Court on Human and People’s Rights and other African human rights structures? The African Court does not stand in a hollow but belong to the African Union system. Many African states which are members of the AU have not however committed themselves to the Court’s pivotal role in the protection of human and peoples’ rights. What has been discovered recently in the Court’s history path is that the plight which the International Criminal Court (ICC) finds itself in which leading nations like the United States that trumpets human rights issues around the globe but has not signed the Court’s protocols or treaties, which to some extent has undermined the jurisdiction of the ICC, is the same plight that the African Court has found itself. The US has not recognized the jurisdiction of the International Criminal Court (ICC) and the Inter- American Court. In Africa, many member states of the AU are still reluctant to sign the Courts protocol but claim to be part of the vanguard against human rights abuses in Africa.
What should also be known is that the African Court and the African Commission on Human and Peoples Rights are both African Union organs dealing with human rights issues. They have complimentary mandates. The mandate of the African Commission, which is based in The Gambia, is to protect and promote human and peoples’ rights in Africa, while the mandate of the African Court is to compliment the protective mandate of the Commission. The principle of complimentarity in the protection of human rights serves as the basis for the relationships between the two institutions. However, the African Commission can bring cases to the African Court for its consideration. In certain cases, the African Court can transfer certain matters to the African Commission. It may also request the opinion of the African Commission when dealing with the admissibility of a case.
The next question is on the judgment of the Court. When the Court finds that there has been a violation of human and peoples’ rights, it shall issue appropriate orders to remedy the violation including the payment of fair and adequate compensation or reparation. The judgement of the Court is legally binding and the Executive Council of the AU is charged with monitoring the implementation of the judgement on behalf of the Assembly.
Under Article 28 (1) of the Protocol, the Court shall render its judgement within ninety days of having completed its deliberations. Its judgement is final and not subject to appeal. In other words it is the highest court in the continent. It now serves as the continent’s Supreme Court. But in order for a party to enjoy justice from the Court, if the party is in a state that has signed the protocol and made declaration, such a party must have complied with the legal principle of exhaustion, that is, must have gone through his country’s courts hierarchy; from the lower court to the Supreme Court of his country, before appealing to the African Court. Apart from an appellate jurisdiction the court also has an original jurisdiction. Also, it has contentious and advisory jurisdictions. However where new or fresh evidence emerges which was not within the knowledge of a party at the time the judgement was delivered, the party may apply for review of the judgement. This application for review must be submitted within six months after the party becomes aware of the new or fresh evidence.
Many people have expressed curiosity to know what the proceedings and hearings before the Court are like. The procedure consists a written and oral proceeding. The written procedure consists of the communication to the Court, the parties as well as the Commission. Also, it consists of appropriate applications, statements of the case, defences and observations and replies as well as papers and documents in support or certified copies thereof.
The oral proceedings shall consist of hearings by the Court of representatives of parties’ witnesses, experts or such other persons as the Court may decide to hear. Cases are heard in open court. However, the Court may of its own accord or at the request of a party hold its hearing in camera, if it is in the interest of public morality, safety or public order to do so. Any party to a case shall be entitled to be represented by a lawyer of the party’s choice. Free legal representation may be provided where the interest of justice so require.
Media should publicize the Court
But coming again to the challenges facing the court, I think one way to help it succeed in its pursuit of protection of human and peoples’ rights is to get the full backing of the media. The role of the media in the construction process is that journalists are the best channel to reach the wider populations of Africa in enlightening them about the existence of the Court, its role in human and peoples’ rights protection, its mandate and how the Court could be accessed. At this time when the Global community has been under the grip of a frenzied campaign of gender equality, the Court also embraces the main principles of the constitutive act of the Organization of African Unity (OAU), the predecessor of the AU, contained in Article 4 that enshrines the promotion of gender equity, respect for democratic principles, of human rights and the rule of law, good governance, promotion of social justice so as to ensure balance economic development, respect for the sanctity of human rights, condemnation and rejection of impunity and its responsibility to protect human rights, its power to intervene in times of crisis in certain countries and its responsibility to protect victims, example, in war crimes, genocide and crimes against humanity.
Currently it has not got a criminal jurisdiction but the Court is moving towards that direction so as to acquire the legal mandate of exercising it. In February 2009, the Assembly of the Heads of States and government of the AU, of which Sierra Leone is a long-time member and whose annual assemblies President Koroma has been attending, requested the AU Commission in consultation with the African Commission on Human and Peoples Rights and the African Court on Human and Peoples Rights to assess the implications of extending the jurisdiction of the Court so as to try international crimes such as genocide, crimes against humanity and war crimes, and to submit a report to the Assembly in 2010. To implement the decision of the Assembly, the AU Commission engaged a consultant to undertake a study on the implications of extending its jurisdiction. It also included consideration of unconstitutional change or prolongation of government (third termism) in Africa which could be considered as a new crime. The draft protocol to extend the Court’s mandate is currently under consideration by the AU Policy organs.
There are also other challenges facing the Court that currently includes enforcing of judgments. I remember one of the judges Hon. Justice Augustino Rhamadani noted at the Continental Media Conference in Arusha Tanzania, in 2013; “It is a common phenomenon even at domestic level”. He said the Court could pronounce a judgment but the problem was compelling states to adhere to the dictates of the judgment. He stressed the need for journalists to inform the wider population about judgments of the Court adding that journalists should show more enthusiasm on reporting the activities of the Court as they do for sport bodies like FIFA.
The way forward
The question that many have also asked me whenever I highlighted the role and challenges of the Court is: what is the way forward? I think what the Court has to do is to take a pragmatic path. The strategies that are to be adopted should include the adoption of international approaches, that should include ideas for enhancing judicial information and the diverse justice systems in Africa and also to take into consideration the institutional policy gaps that are characteristic in the state administration of African countries.
Some people have asked me what are the languages of the court? The official languages of the court are: Arabic, English, French and Portuguese. The current president of the Court is lady justice Sophia Akuffo of Ghana. The Registrar is Dr. Robert Eno from Cameroon. The Vice President is Hon. Justice Bernard Ngoepe of South Africa. Information about the court or how to lodge cases at the Court could be done through the Registrar’s office.
What is expected from Sierra Leone?
The expectation now is that as the Ebola pandemic is taking the exit door out of the lives of the peoples of Sierra Leone, signing of the protocol of the African Court on Human and Peoples Rights would be among the top issues of the government’s agenda. That’s why one needs to make a clarion call to parliamentarians, civil society activists, journalists, politicians including cabinet ministers, the Attorney General and Minister of Justice, the National Commission for Human Rights, National Commission for Democracy, students and all human rights stakeholders to make it incumbent upon them to influence the government to sign the protocol of the Court and make a decoration.