In conversation with Dr. Robert Eno, Registrar of the African Court on Human and Peoples’ Rights

About the interview

An initial interview with Dr. Eno, Registrar of the African Court on Human and Peoples’ Rights, was conducted in March 2012 at the seat of the Court in Arusha, Tanzania. A follow up interview, also in Arusha, was conducted in November 2013. I have put both interviews together in the same piece, a * indicating November 2013 questions and answers.

Oliver Windridge (‘OW’): Could you first explain the role of the Registry?

Dr. Robert Eno (‘RE’): Yes, the Registry has dual functions, firstly an administrative function, to look at the day-to-day administration and ensuring the smooth functioning of the Court, and at the same time the Registrar is endowed with a judicial function; to communicate with parties as far as cases are concerned, which means that all communication with respect to cases in addressed to the Registrar. The Registrar then communicates the decision of the Court to the different parties. Those are the two principle functions, administrative as well as judicial.

OW: Do you have a role in the public hearings?

RE: In the public hearings I introduce the case. Read the case, what the applicants submitted and what the respondents submitted.

OW: Could you explain the difference between the African Commission on Human and Peoples’ Rights and the African Court of Peoples’ and Human Rights? What does the Commission do that the Court doesn’t?

RE: The Court is established principally for human rights protection; meanwhile the Commission has the mandate of both the protection and the promotion of human rights. The Commission goes out to the public to promote human rights, they engage the public and NGO’s and individuals, promoting human rights, to create awareness of human rights . The Court does not do that, so the Court is principally for protection. Cases come to it [the Court], it listens to the parties, and makes a decision. If there is a violation it makes a pronouncement on reparations. One other fundamental difference is the fact that the Commission is a quasi-judicial body and makes only recommendations. Meanwhile the Court is a judicial body and  gives binding judgments.

I should add, the main reason why the Court was established was because of the deficiencies with the Commission. So, if you look at the protocol establishing the Court it says the court is established to reinforce the protective mandate of the Commission, and because of that complementarity between the two of them, the Commission and the Court have been working together to ensure the protection of human rights.

OW: One thing we didn’t discuss last time is the unique word ‘peoples’ in the title of the Court, i.e the African Court on Human and Peoples’ Rights, what does the Court envisage protecting? tribes? groups of people? Is there a definition within either the protocol or the rules of the Court?*

RE: The word ‘peoples’ did not start with the establishment of the Court. It started with the African Charter and since the Court is to interpret the provisions of the African Charter we are the Court on Human and Peoples’ Rights. There is no definition of the word ‘peoples’ in the Charter, there is no definition in the protocol establishing the Court, nor is there an agreed definition of the word ‘peoples’. But the general understanding is that these are rights that accrue to people as a collective not necessarily as an individual, for example, the right to self-determination- you cannot claim it as an individual-it is a right that is claimed as a collective, as a people. For example,  the right to development, the right to use ones resources, so those are the kind of  rights that you find in the African Charter in the section dealing with peoples’ rights. These are rights that are not normally claimed as individual rights, including the right to a clean environment; you claim such rights as a collective entity, as a people.

OW: So far the issue of peoples’ rights has not been examined by the Court yet?*

RE: No, the Court has not had any occasion to deal with that yet.

OW: One of the biggest concerns or issues has been the access to the court for the individual and NGOs as a number of cases have been dismissed for lack of jurisdiction. 26 African Countries have ratified the protocol of which seven have signed the special declaration allowing individuals or NGOs to bring cases directly to the Court, is this the biggest challenge facing the Court at present?

RE: It is a challenge, ratification is not enough, direct access only comes when citizens can access the court. However, another challenge that is equal to that of access is the lack of awareness of the court’s work.  To give an example, even if a country were to sign the special declaration and then simply archives it, it is still not of use to its citizens. It is as equally challenging to ensure people know of their rights in these countries also.

OW: And whose duty is it to increase awareness amongst citizens of countries who have signed up to the Court?

RE: Well, Article 25 of the Charter makes it incumbent upon the member states to advance the work of human rights through teaching. It is with the member states that the obligation rests. Also, civil society as a whole has a responsibility, by which I mean NGO’s, academics and others other than member states. To give an example, even if  a country is to make the special declaration, but it is then archived it is still not of use. The state must publish the information in newspapers, create programmes on television and radio to get the information out to its citizens.

OW: And does the court play a role in getting this information out?

RE: The Court started last year with a programme of awareness creation meetings. Last year the court visited 10 countries, in which we held public meetings and seminars, we met with government officials and society actors to get the information about the court across. We have seen, where these kinds of awareness creation has occurred, the Court has received enquiries and applications soon after.

OW: What is the Court’s position on lawyers from outside the African Union appearing before the Court?

RE: The rules are silent on the issue. We are currently writing practice directions for the court, but I don’t see any reason why the Court would not allow, for example a Canadian lawyer, to appear before the Court. The applicant are entitled to seek out the best lawyers they can to represent them. Before the court today (Note: the 20th Ordinary Session, March 2012) all the lawyers were African but I see no reason why other lawyers could not appear before the court. The only restrictions we have are in terms of employment by the Court, which requires nationals from one of the African Union countries.

OW: Rule 30 of the Rules of the Court states that all parties must bear their own costs, while Rule 31 of the Rules of the Court states that legal provision is available, how does the court envisage dealing with, for example, a case where the applicant is required to come to Court to give evidence? We know that often those with the least in terms of finance or resources are often the ones who need the most protection from a Court like this; will the court assist in those costs?

RE: Legal aid is an issue we are looking at closely. We are not there yet in terms of providing legal aid to applicants. We are thinking of developing a legal assistance fund. At present within the Court’s budget the African Union has approximately $10,000 for legal aid, but we do not have a framework yet. We are also looking to recruit a legal aid officer in the near future.

OW: Since we met in March 2012 what has been the progress of the Court regarding legal aid?*

RE: The Court has adopted a legal aid policy in December 2012, after the adoption of that policy to operationalize that policy it has now invited, if you check our website, it has invited interested applicants to submit applications to be registered on the list of counsel who can appear before the court. We have also advertised for a consultancy to establish a legal assistance fund, so we are now getting a consultant to establish a legal assistance fund to operationalize the policy. When that fund is established, counsels who are listed will be able to be paid, not a large sum of money, but something reasonable to enable them to assist indignant applicants.

OW: Article 28 (2) of the Protocol to the African Charter on Human and Peoples’ Rights deals with appeals, or rather the lack of appeals, once a case has been decided by the Court- the only way that the case can be reviewed is if new evidence comes to light, is this a weakness in the Court?

RE: The reason the Court does not have an appellate chamber is to avoid cases dragging on forever. This could be especially true, for example where the Court finds a violation and brings a decision against a country. I believe the Inter-American Court of Human Rights also has a similar set up, we do not want cases being dragged out indefinitely.

OW: The Court has its base in Arusha, Tanzania but in December 2011 the Court moved to Ghana for its fourth session, and later in 2012 the Court will move to Mauritius, why is this?

RE: The movement of the court is purely in order to promote the Court. It was decided that to promote the Court , once a year a court session should be outside of its headquarters. The Court decides where it wants to sit and we then write to the country in question and ask them if they would be willing to host the Court. Last year, when we went to Ghana we also ran a number of awareness raising programs at the same time. The move was a success and we are hoping to do something similar in Mauritius this year.

OW: What are the levels of interest like, in terms of the Court’s activities from both the public here in Arusha and the media?

RE: The media coverage in Arusha is relatively small, as is the numbers of people coming to the public court hearings. However we did find that when we went to Accra, Ghana the levels of interest in the Court from the media there were huge as was the public interest. To give another example, we also went to Dar Es Salaam, where again the media interest was big.

OW: So the court sits four times a year, each session is roughly how long?

RE: Approximately two weeks

OW: For the rest of the time, are the judges and court staff based in Arusha?

RE: The President and the Registrar are based permanently at the Court’s headquarters here in Arusha. The other judges sit part-time and are not based in Arusha full time. When the Court is not in session I work closely with the President and the President will confer with the other judges.

OW: One of the big issues for the Court at the moment is the potential expansion of the Court’s jurisdiction so that it can take cases on genocide, war crimes and crimes against humanity. What is the current situation in terms of that expansion? Is it in with the African Union for consideration?*

RE: That was a decision made by the Assembly of the African Union to expand the mandate of this Court to be able to deal with criminal matters, so the political process is still ongoing. Presently, I think the draft protocol has been prepared and being considered by the legal experts. It is also being  considered by the Ministers of Justice and the Attorney General’s of the African Union member states. At the January 2013 summit there was an issue that was left pending, the definition of the unconstitutional change of government, and also the African Union commission was requested to provide the financial implication of this expansion. So to the best of my knowledge that is where the process is, I am not very sure whether it will be considered at the next summit of the African Union.

OW: In the recent case of Mtikila v. Tanzania, the Court found, in brief, that one shouldn’t be required to be a member of a political party to participate in political life in Tanzania, a decision which has been handed down by the Court. One of the issues before any regional human rights court is the implementation of the decision by a State, what is the role of the Court, and the Registry now in following up with a State to ensure that it complies with the decision of the Court?*

RE: In principle the Court or the Registry has no role following the implementation of a judgment. The implementation and monitoring of the Judgement of the Court rests with the executive council, it has been mandated to monitor the implementation of the decisions of the Court on behalf of the African Union Assembly. The Tanzanian case you referred to is the first case that the Court has actually disposed of at the merits stage, so we have not had a serious challenge to test the implementation of the Court’s decisions, but I would think in future that the Court will maybe write to the applicant to find out whether the decision has been complied with or write to the State to report, because we give the State some time to submit a report. If that is not done then I think the Court would be able to report to the Assembly on non-compliance.

OW: One last question, where will the Court be in five years and what do you hope to have to have achieved?

RE: In five years time, this Court will be one of the most important institutions in Africa. We must start the right way, and I think we are doing that, but this Court will be important to Africa. Up until the Court’s establishment, the African Union didn’t have a judicial arm. We are that arm, to serve the institution and the citizens of Africa.

OW: As I asked last year, and I want to ask again , in five years time where will the Court be?*

RE: In five years time the Court will be in a different place, I think you may not recognize it. I think there will be a lot of things happening and you will see a lot of results. We are very optimistic.

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