I hope you enjoy reading the following post, first published on 13 December 2017. I have received an overwhelmingly positive response to this piece, mostly asking how African NGOs can now obtain either observer status or sign a memorandum of understanding with the African Union. With this in mind, I have now written to the African Union in my capacity as founder of this website and as a member of the African Court’s List of Counsel (pro bono), to see what further information it can provide. If and when I receive a response that I can share, I will post it here. In the meantime enjoy the post! OW (12 January 2018)
In this post, I want to review the African Court’s recent decisions on advisory opinions, and the rather ambiguous situation we now find ourselves in.
For context, many readers will be familiar with the African Court’s power to consider applications from individuals, NGOs, the African Commission (or another African Union member state in theory) alleging that a member state has violated the African Charter or other international human rights instruments. These applications take the form of “X v. Member State” and are referred to on the African Court’s website as “contentious proceedings”. But the African Court has another less examined role; the power to issue advisory opinions. This power is found in Article 4 of the African Court Protocol. These applications might rightly be considered as non-contentious, since they are not against a member state per se, but rather an application to the African Court seeking to clarify a matter of law, or perhaps to seek the African Court’s position on a certain issue.
This advisory opinion power has been used sparingly. In 2014 the African Committee of Experts of the Rights and Welfare of the Child (ACERWC) took this avenue to ask the African Court whether it fell within the definition of “African Intergovernmental Organizations” that can submit cases under Article 5(e) of the African Court Protocol. In its Advisory Opinion the African Court confirmed that indeed it was an intergovernmental organization, and that it could indeed bring cases- a very important development indeed.
In September this year however the African Court issued four decisions on requests for advisory opinions that severely limit those who can make use of this avenue. These decisions were all rendered on 28 September 2017 (Association Africaine de Defense des Droits de l’Homme, The Centre for Human Rights, Federation of Women Lawyers Kenya, Women’s Legal Centre, Women Advocates Research and Documentation Centre, Zimbabwe women Lawyers Association, The Centre for Human Rights, University of Pretoria (CHR) & The Coalition of African Lesbians (CAL), and Rencontre Africain pour la Défense des Droits de l’Homme (RADDHO)). In all four cases, NGOs were hoping to engage the African Court on various issues of human rights law. I am not proposing to go into the issues themselves since, for the reasons set out below, the African Court never got to consider the merits, but the decisions do set out the issues in a fair amount of detail, if readers would like to read up on them.
For the purposes of this post, what was important is that in all four cases the African Court said the same thing; in order for an NGO to have standing to request an advisory opinion, the NGO must be recognised by the African Union. Crucially, observer status before the African Commission on Human and Peoples’ Rights is not enough. This tranche of decisions is nothing new, since it follows the May 2017 SERAP decision, but what these four decisions have done is to solidify the African Court’s position with little prospect of movement in the foreseeable future.
Given the importance of these four decisions, alongside the SERAP decision, it’s worth looking at the issue a little more closely. Article 4(1) of the African Court Protocol lists four types of entities that can bring a request for a advisory opinion before the African Court: (1) Member States; (2) the African Union; (3) any of its organs; and (4) any African organisation recognised by the African Union.
All the applicants in the latest batch of cases were NGOs, and they all argued that they fell within the fourth category, as “African organisation[s] recognised by the African Union” and were therefore entitled to request an advisory opinion from the African Court. The African Court broke this term down into three sections: (1) “African”; (2) “Organisation”; and (3) “recognised by the African Union”. The African Court saw little problem with the “African” element; NGOs registered in Africa, and working on African issues seem to generally fulfil this. It also held that the term “organisation” could indeed include NGOs as well as intergovernmental organisations. It all came down to the third part, “recognised by the African Union”.
In all four cases, the NGOs sought to interpret the term in a wide sense, arguing that since they had observer status before the African Commission they satisfied this definition. Put simply, the African Commission is an African Union organ, ergo any NGO with observer status before the African Commission is “recognised by the African Union”.
Not so said the African Court. It found that observer status before the African Commission was not the same as recognition by the African Union. It considered that these are two different matters, and that obtaining the former cannot equate to the latter. These decisions, and the SERAP decision before it, can therefore be seen as the African Court interpreting the phrase “recognition by the African Union” narrowly. Whatever the pros and cons of this interpretation, the reality is that the position is now clear and is unlikely to change in the near future.
Now, the big question is, how does one gain ‘recognition from the African Union’? This is where things become a little less clear. In the SERAP decision, followed in these latest four decisions, the African Court stated that recognition of NGOs by the African Union is through the granting of Observer Status or the signing of a Memorandum of Understanding between the African Union and those NGOS (SERAP Decision, para. 64). But I cannot find anything to suggest how this can be done. I managed to find a 2005 AU Executive Council memo that mentions observer status before the African Union here (see paras. 45-50) but apart from this I have yet to find anything concrete.
The ability to petition the African Court for advisory opinions is crucial. It allows NGOs to approach the African Court on important issues without the need to satisfy prohibitive access issues. It does away with the contentious nature of more familiar X v. Y applications against specific member states. In short, it has a vital role to play. The African Court has chosen to interpret the key phrase on recognition before the African Union narrowly, and there is not much that can done about this right now. What must be done now is determine as quickly as possible how NGOs can comply with the requirements the African Court has set out- namely how to get Observer Status or sign a Memorandum of Understanding with the African Union. The problem is, there seems to be no information on how to do this. Any readers who can help shed light on how NGOs can be granted such status with the African Union are encouraged to contact me and I will be happy to update this post or put up a new guest post with the information. This issue is important and clarity is required sooner rather than later, lest NGOs lose this important avenue to approach the African Court.
A few weeks ago, Justice Hub published my analysis of the African Court’s recent judgements concerning Tanzania and its criminal justice system. I am now cross-posting the piece here on The Monitor. This means those readers who read the piece on Justice Hub will not find anything new in the following post. However, I thought there may be some Monitor readers who did not see this when it first went up. As always, I would be very interested in readers views on the post, and more importantly perhaps, the judgements themselves. Enjoy! OW
At the end of September, the African Court on Human and Peoples’ Rights (African Court) handed down an unprecedented ten decisions. These decisions, made up of judgements, requests for advisory opinions and applications for interpretation of past judgements each all deserve to be examined in detail. For the purposes of this post however, I want to focus on the delivery of two judgements: Jonas v Tanzania and Onyachi and Njoka v Tanzania. These judgements continue the African Court’s examination of the Tanzanian criminal justice system and are not only important for Tanzania, but also beyond Tanzania’s borders and across Africa as they continue to provide further clarification on what is meant by the right to a fair trial as found under Article 7 of the African Charter on Human and Peoples’ Rights (African Charter).[/tooltip]
Before we look at the two judgements themselves, it may help to put them in a little context. These judgements are the latest in a series of similar cases brought by applicants against Tanzania. In essence, all these cases argue that the Tanzanian criminal justice system fell well short of the right to fair trial as protected under Article 7 of the African Charter. The previous cases worth reading are Alex Thomas v Tanzania, and Abubakari v Tanzania which the African Court refers to in these latest two decisions, plus Onyango et al. v Tanzania . In terms of context, it’s also worth noting that so far Tanzania has lost every one of these cases, with the African Court consistently finding the treatment of those accused and convicted of serious crimes in Tanzania violates the African Charter.
In both cases the applicants were serving 30 year sentences for armed robbery. Kenyan nationals Kennedy Onyachi, and Charles Njoka were first arrested in Nairobi, Kenya on suspicion of armed robbery in Tanzania in November 2002. In March 2003, they were extradited to Tanzania to face trial. They were met on the Kenyan-Tanzanian border not only by Tanzanian police, but also Tanzanian TV cameras, causing their identity to be widely disseminated across Tanzanian television and newspapers. Shortly after, they were subject to an identification parade where they were positively identified. They were then charged with conspiracy and armed robbery. In March 2005 following trial the Tanzanian Magistrates Court acquitted Onyachi and Njoka.
However, they were immediately re-arrested and charged with further offences of robbery on the same facts whilst the Prosecution also appealing their acquittals. In December 2005 the Tanzanian High Court overturned the acquittals and convicted Onyachi and Njoka, sentencing them to 30 years imprisonment. Onyachi and Njoka then appealed against conviction, an appeal that was dismissed by the Tanzanian Court of Appeal in December 2009. However, Onyachi and Njoka were only served with copies of the Court of Appeal’s decision in November 2011, almost two years after the judgement was rendered. Attempts were made to lodge a review of the 2009 Court of Appeal decision, but were time barred, since appeals must be lodged within 60 days of judgement.
Christopher Jonas was convicted of similar offences in 2004 and was serving 30 years imprisonment at the time of his application. In his case, its worth nothing that Jonas was originally sentenced to 30 years imprisonment and 12 strokes of the cane. Jonas appealed the case through the Tanzanian criminal justice system, with the Tanzanian High Court and Court of Appeal upholding his conviction and prison sentence, although the Court of Appeal did set aside the 12 strokes of the cane.
Onyachi and Njoka petitioned the African Court in January 2015, whilst Jonas petitioned the African Court in May 2015. Interestingly, in both cases the African Court took it upon itself to ask the Pan African Lawyers Union to represent the applicants who were otherwise unrepresented; a welcome move and evidence of the African Court thinking outside the box. In both cases the applicants argued that their treatment within the Tanzanian criminal justice system violated various articles of the African Charter.
Suffice to say, Tanzania refuted both claims, and did so at every stage of the African Court’s examination of the case. In both cases Tanzania argued that the claims were outside the African Court’s jurisdiction. It argued that the African Court was being asked to act as a quasi-Supreme Court, which was beyond its remit, and that it should simply respect the Tanzanian Court of Appeal’s decisions as the highest judicial body in Tanzania. The African Court however was not persuaded. It made clear that it was not prepared to act as a court of appeal for criminal matters, but that it was entirely within its jurisdiction to examine whether criminal justice processes, including trial and appeal, complied with the right to fair trial as enshrined under Article 7 of the African Charter. These cases further clarify what might already considered the African Court’s clear position; the African Court will not act as an appellate court but it is in no way barred from considering allegations of human rights violations emerging from criminal justice systems. AU Member States will need to work harder than simply saying that the African Court should respect domestic appeal judgements in future cases.
Tanzania also attempted to thwart both claims on issues of admissibility. Under the African Court Rules and African Charter applications must comply with eight conditions in order to be considered admissible. These conditions include two which are almost always raised by AU member states as reasons to find applications inadmissible: exhaustion of local remedies and the filing of applications within a reasonable time after those local remedies are exhausted.
In terms of exhaustion of local remedies, Tanzania raised arguments familiar to African Court followers; that the applicants had failed to properly avail themselves of all domestic remedies. Every country facing an application before the African Court to date has raised this as a reason why the case cannot be considered. In these cases, Tanzania argued that the applicants still had the option to lodge constitutional challenges before the Tanzanian High Court. This argument was however swiftly dismissed by the African Court, as it has done previously.
Tanzania’s submission that the applications were time-barred do however deserve a little more examination. As mentioned above. the African Court Rules and the African Charter set out that to be admissible, an application must be filed within a reasonable time from when local remedies were exhausted or from a date which the African Court deems appropriate. It does not however set out a timeframe. Interestingly, in Jonas although the Court of Appeal rendered its decision in March 2009 the African Court declared that the clock did not start ticking on the reasonable timing of the application until March 2010 when Tanzania signed the Additional Declaration that allows individuals and NGOs direct access to the African Court. This decision has the potential to considerably effect on future applications, since it ensures that claimants will not be time barred simply because member states dragged their heels on fully signing up to the African Court- something every AU Member State bar eight is guilty of.
Taking the starting point then as Tanzania’s signature of the Additional Declaration, the African Court found that the petition had been filed 5 years, 1 month and 12 days since after; a not insubstantial amount of time. Looking to the previous case of Abubakari, the African Court recalled that in assessing whether an application was filed within this undetermined “reasonable time” it will consider whether the applicant was incarcerated, indigent, did not have access to free legal assistance, illiterate, and unaware of the existence of the African Court due to its relatively recent establishment. This non-exhaustive list provides the African Court with a large degree of flexibility that can allow relatively large temporal gaps to be overcome. In this case, given that Jonas met many of the same circumstances listed in the Abubakari case, the period of five years, 1 month and 12 days was deemed reasonable for filing a petition before the African Court. Similarly, in Onyachi and Njoka gaps of three years and two months and about seven months were also considered reasonable.
Having found that it had jurisdiction to consider the cases and that both cases were admissible, the African Court went on to consider the meat of the applications; the alleged human rights violations themselves. In both cases the African Court made short work of claims that the imposition of a 30 year sentence for armed robbery were in violation of Article 7(2) of the African Charter since Tanzanian law clearly proscribed a minimum of 30 years for this crime. In Onyachi and Njoka, the African Court also rejected claims concerning their extradition and transfer from Kenya to Tanzania since Kenya was not within its jurisdiction.
Onyachi and Njoka did however enjoy more success on their claims relating to the identification parade that formed the basis for their convictions. Here, the African Court found that the way the identification parade occurred; with images of the applicants distributed on local television and newspapers just before the identification parade took place, made the procedure unsafe and therefore in violation of Article 7(1) of the African Charter. Similarly, the African Court found that the Tanzanian courts had failed to give “due and serious consideration” to Onyachi’s and Njoka’s alibi defence and was therefore a further violation of Article 7 (1) (c) of the African Charter. The African Court’s decisions that these two elements of Onyachi and Njoka cases violated the African Charter further bolsters the court’s ability to review criminal procedure as it stacks up against a Member States’ ongoing obligation to adhere to the African Charter.
In both Onyachi and Njoka and Jonas the African Court also found violations of Article 7 of the African Charter concerning the provision of legal representation. All the applicants made claims concerning Tanzania’s failure to provide free legal representation during the entire process of trial and appeal. The African Court followed its previous decision in Thomas, in which it found that provision of legal aid is a right implicit in the right to defence enshrined in Article 7(1) (c) of the African Charter.
The African Court reiterated that the two requirements for provision of free legal aid were: (i) indigence; and (ii) interests of justice. In assessing whether these requirements were met the African Court considered several circumstances including: (i) the seriousness of the crime alleged; (ii) the severity of the potential sentence; (iii) the complexity of the case; and (iv) the social and personal situation of the defendant. In appeal cases, the African Court also looked at the substance of the appeal, such as requiring a certain level of legal knowledge or skill, and the nature of the entire proceedings, such as considerable disagreement on points of law, or fact in the judgements of the lower court.
The African Court concluded that if these conditions exist then free legal assistance should be provided in trial and appellate proceedings as part of the right to fair trial guaranteed under the African Charter. It’s worth noting that Onyachi and Njoka were represented at trial and the first level of appeal, to the High Court. They were not however represented in the appeal to the Court of Appeal. Since they were indigent, included a large number of witnesses and several points of law requiring legal skills which lay persons could not be expected to possess, and the case involved a 30 year prison sentence for serious crimes, the African Court found that both the “indigent” and “interest of justice” requirements were met.
In Jonas, Tanzania adopted a slightly different tack, and argued that legal assistance was available under Tanzanian law but the applicant had never asked for it. The African Court found however that Tanzania should have done more than simply have the possibility of free legal assistance on the books; it should have offered Jonas proprio motu the free services of a lawyer throughout the judicial procedure. In both cases, the African Court therefore found Tanzania in violation of Article 7(1) (c) of the African Charter. This approach is very much in line with the Thomas and Abubakari decisions but may even take things further. It seems to indicate firstly, that legal representation must be provided throughout the criminal process including appeals to the highest courts. Secondly, it is not enough for AU Member States to point to provisions contained in legislation or policies for the free provision of legal assistance. They must do more, and actively offer that assistance to individuals in order to fully comply with the African Charter.
Lastly, on the right to a fair trial under Article 7 of the African Charter, it is worth noting that Onyachi and Njoka also brought a claim for the failure to provide copies of their Court of Appeal judgement until almost two years after the judgement was rendered. The African Court again found in the applicant’s favour, ruling that such an inordinate delay contravened Article 7 (1) of the African Charter, especially where the applicants faced a 60-day window from the time of the judgement being rendered to seek a review of the decisions; an impossible task without the judgement. On this point, an additional wrinkle is that the African Court found that the list of protections to a fair trial under Article 7 of the African Charter is non-exhaustive; a small point perhaps, but one that keeps open the possibility of new and inventive challenges to the right to fair trial before the African Court.
It should also be mentioned that the African Court also found violations of Article 6 of the African Charter (Right to Liberty) in Onyachi and Njoka. We don’t have space to examine this in much detail, other than to say that it found the immediate arrest of Onyachi and Njoka after their acquittal at the Magistrates Cout on similar charges based on the same facts was in violation of Article 6 of the African Charter; a welcome cautionary note to overzealous officials seeking to ensure those acquitted do not walk free.
Lastly, the African Court found that Onyachi and Njoka had failed to prove their allegations that they were detained incommunicado and without food after their Magistrates acquittal in violation of Article 5 of the African Charter. I mention this point since whilst this was no doubt a disappointment to the applicants, this section of the judgement came with a small silver lining. In assessing the claim, the African Court acknowledged that allegations of incommunicado detention are often difficult for applicants to prove since this kind of event tends to occur when “shrouded in secrecy” and “outside the shadow of law and public sight”. The African Court therefore found that it is not for applicants alone to shoulder the burden of proof on these types of issues. So whilst in this particular case the African Court was not convinced that the evidence demonstrated the existence of a violation, it is a welcome sight to see the court at least acknowledging the difficulties of bringing such application which can be seen as a positive step towards further similar cases in the future.
Certainly, these judgements do not make pleasant reading for Tanzania. With these two cases building on the previous Thomas, Onyango et al. and Abubakari cases we now have a quintet of judgements demonstrating quite clearly how the Tanzanian criminal justice system has violated the African Charter. However, whilst not wanting in any way to absolve the problems Tanzanian faces, Tanzania’s continued dismal performance before the African Court must be put in some context. Only eight out of 55 AU Member States allow individuals and NGOs to bring cases directly before the African Court, making the percentage of Member States criminal justice systems that can be examined by the court very small. I suspect Tanzania would point to this fact in defending its criminal justice system in the face of the dubious honour of now owning five African Court judgements finding it in violation of the African Charter.
The statistics on access to the African Court cannot be denied, and this does limit the field in terms of access, but this should not serve as an excuse for Tanazania not to fully comply with these latest judgements. What is clear is that the African Court is saying that fundamental parts of Tanzania’s criminal justice system have not met the required standards as protected under the African Charter. Help is at hand though in the form of the judgements themselves, which should be carefully scrutinized by Tanzania in order to improve its criminal justice system and avoid further similar judgements. But expanding this beyond Tanzania, the African Court is also beginning to craft a framework that must be applied across Africa.
Other AU member states must also take these decisions on board, since every AU Member State has ratified the African Charter and is required to ensure that its domestic legislation and policies are in compliance with it. What the African Court has done in these latest cases is to set out clearly a framework which can ensure a Member State can claim compliance with the African Charter. Every AU member state should be examining its criminal justice system based on the African Court’s findings. For the avoidance of doubt, issues top of the list should include: (i) free legal representation for all accused at trial and appeal; (ii) the timely provision of trial judgements, appeal decisions and the like; (iii) due care and consideration given to the use of identification parades; and (iv) proper consideration of defences raised by accused. Should these provisions and others not be ensured, citizens and NGOs across Africa will have every right take copies of these latest African Court judgements and place them before domestic, regional and continental mechanisms to demand immediate and tangible improvements.
Following on from my short post last week highlighting the Makwanyane Institute’s call for applications for its 2018 workshop (deadline 20th November, more details here), I am pleased to highlight another interesting opportunity. Below is the newly established University of The Gambia Law Review’s call for papers. All the details are set out below on how you can contribute a paper to its inaugural issue looking at the concept of the “New Gambia”. I would urge all our readers to read and consider submitting a paper. Just to make clear, I have no affiliation with the University of The Gambia, or its Law Review, beyond helping if I can and wanting to spread the message on what appears to be a great new inititiative. Enjoy! OW
University of The Gambia Law Review: Call for Papers
Issue 1: The New Gambia
Since the recent inauguration of President Adama Barrow, the Gambia has renewed its commitment to the International Criminal Court, sought to re-join the Commonwealth, held legislative elections approved by international observers, and undergone processes towards establishing a truth, reconciliation and reparations commission. Transitional justice measures and infrastructural developments are complementary efforts towards a broader human rights movement that seeks to establish the Gambia as the human rights capital of Africa. Hosting Africa’s flagship human rights institution, the Gambia is the newest sub-Saharan democracy, with the subsequent potential to significantly advance the contemporary, international legal sphere. The immense opportunities and challenges possessed by the ‘New Gambia’ therefore centre upon the creation of laws, institutions and values that are necessary to protect human rights and advance the rule of law.
The redrafting of the Gambian Constitution amidst increased patriotism and optimism may produce new hopes and fears of justice and impunity. Yet, social issues such as rural to urban migration, poverty, youth unemployment, women’s rights, education and health persist. Thus, here lie the legal and political tasks of the ‘New Gambia’: To reform political peace with dialogue and freedom of expression; to facilitate a culture of possibility and widened economic revenue; and to establish values of justice and human rights amongst remnants of an old Gambian order.
The Faculty of Law aims to advance recent efforts towards democratic processes and good governance in The Gambia through legal education by strengthening academic credentials and promoting the potential of the legal community. As such, The University of The Gambia Law Review is calling for academic articles, student commentaries and activist contributions that cultivate and critique the concept of a ‘New Gambia’ from varying domestic and international, legal, political and developmental perspectives. Ideas may be based upon, but are not limited to, the following:
The applications process is now open.
The deadline for final submission of papers is 15th March 2018.
Authors should submit a first draft of their article no later than this date. The quality of the papers will be screened by the team of editors, whom may request amendments.
Successful authors will be notified by email.
All articles, commentaries and contributions must adhere to the Law Review Guidelines. Once complete, papers should be sent to firstname.lastname@example.org.
Main text font must be Arial, size 12, and justified with 1.5 line-spacing.
Footnotes must be Arial, size 10, and left-aligned with 1.0 line-spacing.
Articles must be 5,000 – 8,000 words, including footnotes.
Each article must have a 300-word abstract.
Commentaries and other contributions must be 1,500 – 3,000 words.
Every paper must be supplemented by a full reference list.
Citations must be consistent with the OSCOLA system.
Spelling and grammar must be consistent with British English.
Files must be submitted as .doc or .docx (such as from Microsoft Word or Open Office).
PDF submissions are not accepted.
All entries must read as formal academic papers, with a consistent writing style that is logical, precise and professional.
All factual statements must be supported by sources or research evidence that are cited in both the text and the reference list.
All entries must original and not previously published.
I am pleased to share with our readers the Makwanyane Institute’s call for applications for its 2018 workshop. The institute is located at Cornell University Law School in the USA. I know of several lawyers who participated last year and had a wonderful time. All the details are below- please note the deadline for applications is 20 November 2017. OW.
The Cornell Center on the Death Penalty Worldwide is pleased to accept applications for its second Makwanyane Institute, an intensive training workshop for capital defenders, that will take place in the USA from June 18 to 28, 2018. Named in honor of the South African Constitutional Court’s seminal decision abolishing the death penalty, the Institute will offer fifteen Fellows the opportunity to participate in specialized training, litigation support, and community-building.
The Institute invites applications from criminal defense lawyers practicing in common law jurisdictions in Africa, including Botswana, Cameroon, Gambia, Ghana, Kenya, Liberia, Malawi, Nigeria, Sierra Leone, South Sudan, Tanzania, Uganda, Zambia, and Zimbabwe. Applications are due November 20, 2017.
The 2018 Makwanyane Fellows will travel from June 18 to 28, 2018 to Cornell University Law School in the USA to be trained and mentored by a team of leading experts in death penalty representation in the US and internationally. Fellows will be expected to organize follow-up trainings in their country of practice.
Airfare, accommodation, and meals are provided for Makwanyane Fellows.
News reaches us that the African Court will be conducting its latest sensitization mission to Guinea-Bissau next week (14-15 August 2017). With this in mind, I thought it would be a good opportunity to reflect on the objective of sensitization missions and their effectiveness.
According to the African Court, the main objective of sensitization missions are to enhance the protection of human rights in Africa. Specific objectives include raising public awareness about the African Court, encouraging the ratification of the African Court Protocol and the deposit of the Additional Declaration, sensitizing would-be applicants on how to access the African Court and encouraging the utilization of the African Court to render advisory opinions.
From what I can determine, since 2014 the African Court has conducted six such sensitization missions:
(somewhat strangely, I cannot find records of any sensitization missions in 2016?)
All these missions tend to follow a similar pattern, including meetings with senior politicians, judiciary and other important stakeholders. Missions also feature engagement with civil society in the form of workshops or seminars. Representation tends to be fairly small, often comprising three African Court judges plus registry staff.
On one hand, I think these visits can be seen as positive in and of themselves simply by taking the African Court out of Arusha and into AU member states. However, perhaps the biggest question is to their effectiveness. Put simply, given the financial cost and use of staff resources, are these visits making any difference? Well, if we take our six missions again and plug in the member states’ actions (or inactions) since their sensitization visit we see the following:
There are a number of caveats to this exercise. These results only document signatures and ratifications, and do not take into account behind the scenes negotiations that may contribute towards future ratifications and signatures. They also do not reflect member states’ prior intentions- for example a member state that was going to sign anyway. Still, looking at the results even with these caveats, it is hard to ignore that change occurred in three out of eight countries targeted.
I think the word “targeted” is important here. From my discussions with African Court officials and others, there is a sense that the African Court cannot and should not engage the entire continent at once. Simply put, the African Court has neither the staff or budget to roll out a continent wide campaign. Rather, utilising these sensitization missions allows the African Court to make an intentional sortie into a country or region. This foray then aims at building support and raising the African Court’s profile, whilst securing ratification and/or signature in a piecemeal fashion. Of course, with 55 African Union member states, this approach runs the risk taking a very long time to achieve its goal. But looking at the exercise above, the results are fairly positive. Lets hope this latest visit yields further change.
With this in mind, if you are planning to participate or be involved in the African Court’s Guinea-Bissau mission and would like to share your experience please contact me. I would be very interested to hear any news on how the trip was received, its effectiveness and lessons that could be learned – contact details can be found on the about us section of the website.
Thanks for reading!
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At the end of June 2017 the African Court circulated its mid-term activity report, covering the period from 1 January 2017 to 30 June 2017 (“Report”). I have checked with African Court officials, who have confirmed to me that the report is for public distribution. I am therefore adding the entire report to the end of this post. I understand that the African Court will add the Report to its website at some stage, perhaps with some additions. In the meantime, given the public status of the Report, I thought readers would appreciate the current version of the report in full.
Well worth reading in its entirety, the Report describes the activities undertaken by the African Court in the first six months of the year, and details judicial, administrative and outreach activities, as well as the implementation of decisions of the Executive Council, relating to the functioning of the African Court. But before getting to the Report itself, I wanted to set out a few thoughts that jumped out at me (if you would rather skip my thoughts, scroll to the end of this post just to access the Report itself).
Without wanting to sound like a broken record, the continuing failure of AU member states to engage with the African Court remains a problem. Splitting the problem into two sections might help. The first part, and probably biggest issue since it is required before addressing the second part, is the failure of AU member states to ratify the African Court Protocol. Ratification of the African Court Protocol, allows the African Court jurisdiction over cases brought by AU member states, the African Commission and intergovernmental organizations.
Ratification of the African Court Protocol does not provide Individual or NGOSs with direct access to the African Court. Given that ratification of the Protocol is therefore something of a half way point in terms of access, getting universal ratification seems like a realistic goal. Currently however, only 30 out of 55 AU member states have signed up. Whilst some AU member states may have concerns over allowing individuals and NGOs direct access to the African Court-concerns which are disputed by the African Court itself which actively encourages full access- it is discouraging to see no new signatures to the African Court Protocol in this period, the last being Chad in February 2016.
The second part of the issue is AU member states allowing individuals and NGOs direct access to the African Court through signature of an Additional Declaration under Article 34(6) of the African Court Protocol. On this subject we should recognise the great news of Tunisia signing the Additional Declaration in May 2017 . As I have written recently, this move should be applauded, and recognized as the first North African country to fully sign up to the African Court.
First of all, the slow but steady creation of a backlog of cases at the African Court is a concern. Despite the somewhat lukewarm response of many AU member states to fully engage with the African Court, the African Court now has 120 cases pending before it. Compare this docket with the African Court’s output between January 2017 and June 2017 (one judgement, one order and one advisory opinion) and the maths do not look good.
I haven’t recently examined all the cases currently pending before the African Court but an estimation that 80% concern Tanzania might be conservative. This Tanzanian overload must be monitored and brings us neatly on to the second case management issue; the implementation of judgements and provisional measures. In short, the Report shows that Tanzania, the host country of the African Court, appears to be failing to implement judgements or provisional measures.
According to the Report, the African Court’s first ever judgement on the merits, Mtikila v Tanzania, remains to be implemented. The spate of judgements critical of Tanzania’s criminal justice system (Alex Thomas v Tanzania, Onyango and others v Tanzania, Abukari v Tanzania), also remain to be implemented or Tanzania has filed for interpretation of the judgement (due in September 2017).
Perhaps most striking of all is Tanzania’s apparent failure to implement provisional measures to halt the execution of several applicants currently on death row. Whilst Tanzania operates a moratorium on the death penalty, it seems somewhat worrying that it is not prepared to comply with Provisional Measures to halt executions when it is already doing so. This seems however to be conducive of a bigger issue between the African Court and Tanzania that these particular cases perhaps.
On the bright side, the Report also contains positive news on the implementation of the Zongo v Burkina Faso judgement. The Report details Burkina Faso having fully paid out compensation to the families of the victims, and indicted those alleged to have been behind the death of Norbert Zongo and his associates. Given these positive steps it seems a little harsh that the Report has listed Burkina Faso as “not fully implementing the Court judgement of almost two years ago” for not having printed the judgement in a newspaper or on an official website. Also whilst on Burkina Faso, its worth noting that the Report omits the Konaté judgement from its implementation section with no obvious reason why.
One final point on case management. Its interesting to see the issue of a reporting and monitoring mechanism raised. The Report sets out the need for a proper system to allow the African Court and others to follow the implementation of its judgements. This issue is only going to become more important as the caseload of the African Court increases and focus widens from just judgements rendered to the effectiveness of these judgements in making real changes across Africa.
Finally, the Report gives us some insight into the African Court’s budget. The Report sets out the budget for the year 2017 is $ 10,315,284, comprising $ 8,709,318 (84%) from AU members states and $ 1,605,966 (16%) from International Partners. A quick search will show the European Court of Human Rights 2017 budget is just over 71,000,000 Euros for the year, not including expenditure on the building and infrastructure. The Inter-American Commission has a 2017 budget of around $11,500,000, of which $5,643,000 was allocated by the Organization of American States. This means the IACHR needs to secure voluntary contributions of approximately $6,000,000 to keep afloat. I am loathed to draw direct comparisons between the regional human rights systems, but it’s always somewhat interesting to see the three budgets together.
One last wrinkle is the Report’s ongoing discussions over a permanent premises for the African Court in Arusha, Tanzania. The current temporary premises are deemed too small, but plans for a presumably larger permeant facility remain (literally) on the drawing board. I wonder whether the reasons for the delays in building this new premises here can be read alongside Tanzania’s apparent reluctance to fully engage with the African Court either through implementation of judgements or provisional measures?
In conclusion then, the Report is well worth a read. It is extremely useful in understanding the current caseload as well as the only resource I know of to review the implementation of previously decided cases. Let’s hope the Report is read by everyone interested in the African Court and contributes to the continuing growth of the African Court as a truly continental human rights court.
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On 26 May 2017 the African Court finally rendered judgement in the case of African Commission on Human and Peoples’ Rights v. Kenya (Judgement). As background, this case involves a claim by the Ogiek people, an indigenous group who have called the Mau Forest in Kenya home for time immemorial. In October 2009 the Kenyan government served an eviction notice on the Ogiek people, requiring them to leave the Mau Forest within 30 days. Represented by the Ogiek Peoples’ Development Program (OPDP) and Minority Rights Group, the Ogiek people brought a case before the African Commission, arguing that this eviction, and Kenya’s treatment of them for decades, was in violation of various African Charter rights. I have written about the case before here, and conducted an in-depth roundtable in December 2016 with Lucy Claridge, Head of Legal at Minority Rights Group and Daniel Kobei from OPDP which you can find here. I am delighted to say that we are going to do a follow-up roundtable with Lucy and Daniel in the coming weeks which delves into the judgement even further. With this in mind, I am going to sidestep some of the indigenous issues in this post which are extremely important but perhaps are best dealt with by Lucy and Daniel. Instead, this post focuses on five other points for a little analysis.
1.This Judgement is a Landmark
There can be little doubt that this judgement will go down as one of the African Court’s landmark cases. It’s the first case to consider indigenous rights and sets out clearly that Kenya’s treatment of the Ogiek violated Articles 1, 2, 8, 14, 17 (2), 17 (3), 21 and 22 of the African Charter. This Judgement will not only have a considerable bearing on Kenya’s treatment of the Ogiek people but also on indigenous rights across Africa. But also consider the tone the African Court adopts. Throughout the Judgement, Kenya makes pretty much the same arguments; that Kenya is equal as evidenced by the Kenyan Constitution that says there is no discrimination against anyone including the Ogiek, that the Ogiek people no longer need the Mau Forest and even that the Ogiek are damaging the Mau Forest. But over and over the African Court dismissed these arguments. Reading the Judgement as a whole, I get the sense that the African Court has no time for Kenya’s ‘equality for all’ arguments. It seems, to me at least, that member states need to work a little harder to convince the African Court on these type of submissions, perhaps best summarised as “how can there be discrimination/violations when our Constitution/Laws state there is none?” in future cases.
2. The Judgement Draws Widely from International Law
Read the Judgement and you see the African Court consider the African Commission’s working group on Indigenous rights and the UN Special Rapporteur on Minorities in determining the criteria for the definition of ‘indigenous’. The African Court also looks at UN General Assembly declarations, the UN Declaration on the Rights of Indigenous Peoples, the Cultural Charter for Africa, and General Comments from the UN Committee on Economic, Social and Cultural Rights. Taking this all in, the reader is struck by the level of international law and procedure relied on by the African Court. This goes to show that whilst the African Court is limited to considering violations of only those international human rights instruments ratified by a member state subject to an application, it will not limit itself to these same instruments in considering a case and making findings on the merits. Applicants and their representatives should take note, and not limit the law relied upon to that ratified by the member state in their petition but look to all international law and procedure in building their case.
3. More Questions than Answers on Commission-to-Court Transfers?
An area which continues to intrigue me is the possibility of Commission-to-Court transfers. The potential is obvious; if you can persuade the African Commission to transfer cases to the African Court as it is entitled to under Article 3(1)(a) of the Protocol, the field increases from the current eight AU member states who have signed the Article 34(6) Additional Declaration to the 30 that have signed up to the African Court Protocol. Whilst Rule 118 of the Commission’s Rules set out the basic structure under which transfers may take place, there is little in the way of concrete discussion or criteria set out by either the African Court or African Commission as to how this is applied.
There was some hope that this Judgement, only the second transfer from the African Commission to African Court (African Commission v Libya being the other) might go into some detail on how these transfer issues are decided by the African Commission and/or African Court. Sadly, although perhaps not unexpectedly, the African Court doesn’t go into any great detail in the Judgement on transfer. As I have written previously, reading between the lines it seems fairly clear that having been burned in the Endorois case, the African Commission was keen to transfer the case, especially when Kenya ignored the African Commission’s order in this case for provisional measures, reminiscent of Kenya’s stance in the Endorois case before.
But leaving aside the process by which the transfer occurred, this Judgement does give us a fascinating window into what happens once a case is transferred. It is clear that the African Court considered the African Commission as the applicant in the case, not the NGOs who brought the case, or the Ogiek themselves. Read this Judgement alongside the African Commission’s statement on the case which seems to confirm that PALU acted as lawyers for the African Commission, and we seem to have at least four different groups under the “applicant” heading: (i) the African Commission; (ii) PALU as the African Commission’s lawyers; (iii) MRG and OPDP as the NGOs; (iv) the Ogiek people themselves. This seems like a lot of people to be acting under the same umbrella of “applicant”. It would be fascinating to know how the African Commission actually worked on the case; did they brief PALU on strategy? Did they take witness statements from the Ogiek? Was strategy formed as to how to bring the case? On this last point, presumably something must have been done in the way of strategy, and if so then the African Commission has, at least in this case, moved away from independent arbitrator of human rights allegations and instead became a litigator. If this is indeed the case, then how does it approach the next indigenous rights case filed before it back in its everyday guise as a human rights commission deciding cases? Is there a conflict of interest then between the African Commission considering future indigenous rights cases and its role as litigant in this case? I can see some merit in the argument that the African Commission is able to separate the two roles out, both in terms of personnel and in its role as an independent commission, but it seems a little strange to one moment be litigating and then the next sitting as independent commission on similar issues. Is it that the Commission would be safest to simply transfer cases and leave the litigation before the African Court to the original complainants?
4. A Helping Hand for Exhaustion of Local Remedies?
The Judgement also adds some interesting new detail to the age-old issue of exhaustion of local remedies. As followers of the African Court will know, member states almost always object to the admissibility of a case based on an applicants’ failure to exhaust local remedies. Member states usually argue that there is at least one more domestic venue, be it a court, commission or other, that the applicants should have tried before bringing a case before the African Court.
In the Judgement the African Court looks at three familiar matters: (i) the primacy of domestic courts; (ii) the “available, effective and unduly prolonged” test and; (iii) domestic remedies must be judicial in nature. But then the African Court does something else which seems to be new. It states that when considering the exhaustion of local remedies, what is important is that the matter or issue has been brought before domestic courts, not necessarily the same applicant. This is very interesting. It is not in doubt that the Ogiek people have been bringing legal cases for decades in an attempt to enforce their rights. What is not necessarily the case is that these particular NGOs and individuals have brought these cases. This situation did not seem to phase the African Court who set out that since the matter had been litigated before domestic courts, the applicants in this case had exhausted local remedies. If applied in the future this approach has the potential to increase the number of applicants who can bring cases before the African Court, as it seems to suggest that applicants can bring cases involving ongoing human rights violations who have not necessarily brought domestic cases themselves. For example, local remedies could be exhausted where an applicant takes up the baton from others within a community to challenge continued to ongoing violations at the African Court where others have been litigating in the past at the domestic level.
5. Amicable Settlement is a Real Thing
Finally, the Judgement mentions that the possibility of an amicable settlement was floated at one stage- a first for the African Court (at least as contained in a written judgement). This scenario moves the amicable settlement provision found at Article 9 of the African Court Protocol and Rule 57 of the African Court Rules away from being just a aspirational goal considered by some destined to be never used, to a real tool to try and bring a case to a conclusion without the need for lengthy litigation. Interestingly, it appears that the African Court itself initiated an attempt to find a settlement in this case after the public hearing. Given the nature of these type of negotiations are typically confidential, we may never find out what exactly was proposed and rejected, but it should be seen as positive that there were at least attempts, and it is something to look out for in future African Court Judgements.
On 16 May 2017 the African Court held the public hearing in APDH and IHRDA v. Mali. This case is chiefly notable as the first African Court case to specifically consider the rights of women. In particular it focuses on a recently enacted Malian law that the applicants allege violates the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (otherwise known as the Maputo Protocol), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Charter on the Rights and Welfare of the Child (ACRWC). You can watch the hearing (in French) here.
The case can also lay claim to another first which is subject of this short post; peruse the African Court’s case summary and you will see the alleged violations of the Maputo Protocol, CEDAW and ACRWC, but no alleged violations of the African Charter on Human and Peoples’ Rights– as far as I can tell, a first for the African Court.
It is important to clarify that nothing in the African Court’s rules or Protocol prevent this situation. Under Article 3.1 of the African Court Protocol, the African Court has jurisdiction to hear applications concerning not only the African Charter, but also “any other relevant human rights instrument ratified by the States concerned”. There is no requirement that an application must contain violations of the African Charter. What is interesting however is that until now it has been common practice for applicants to allege violations of the African Charter and in addition other international human rights instruments, so for example in a fair trial case alleging violations of Article 7 of the African Charter and in addition Article 14 and Article 15 of the ICCPR.
As Tetevi Davi discussed recently at The Monitor, in the 2016 case of APDH v Cote d’Ivoire, the African Court examined the meaning of “any other relevant human rights instrument” under Article 3.1 of the African Court Protocol, giving the term a broad interpretation to include the African Charter on Democracy, Elections and Governance (2007) (Democracy Charter) and the ECOWAS Protocol on Democracy and Good Governance (2001) (ECOWAS Protocol).
This latest Malian case represents a significant upshift for the African Court as it stretches its jurisdiction even further, by considering violations of international human rights instruments other than the African Charter. This evolution is (for international law anyway) taking place at quite a pace. As I have written before, it was not long ago that the African Court purposefully avoided stepping into international waters, making findings on violations of the African Charter, but stopping short of making findings on international inducements such as the ICCPR. For example in the 2014 Zongo et al. v. Burkina Faso Judgement the African Court decided at para. 188 that “having the decided on the alleged violation of the freedom of expression on the basis of article 9 of the [African] Charter, it does not find necessary to rule on the allegation on the basis of article 19(2) of the ICCPR”.
Fast forward to 2017 and we are now seeing the African Court making findings on the ICCPR (see for example the Alex Thomas v. Tanzania Judgement), setting a broad jurisdiction to include international and regional human rights instrument (as in APDH v Cote d’Ivoire) and now handling its first completely non-African Charter case.This move is not only fast but I think also goes to show the African Court growing in confidence. Of course, this case relates to two Africa-specific human rights instruments in the form of the Maputo Protocol and ACRWC, as well as the CEDAW, but there is no reason, at least on paper, why the African Court could not go one stage further and consider cases alleging violations of the ICCPR or other global human rights instruments only. With this in mind though, its worth considering the potential for friction these moves with other African institutions. For example, how does the ECOWAS Court of Justice view the African Court setting out in APDH v. Cote d’Ivore that the Democracy Charter is w
ithin its jurisdiction? Or what is the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) take on the African Court deciding ACRWC specific cases when it is principally in existence to consider these very same issues? This possible tension is partly as a result of the overlapping jurisdictions of various human rights institutions across Africa, and is unavoidable all the while these separate institutions remain in existence.
But should the African Court ‘keep in its lane’ so to speak and consider only alleged violations of the African Charter with other human rights instruments ancillary and in addition to the African Charter? Certainly the African Court Protocol allows the African Court to consider all kinds of cases, not only restricted to the African Charter; in this sense its working within its jurisdictional boundaries. These issues will likely become more prescient depending on whether APDH and IHRDA v. Mali will be a one-off or whether its indicative of a trend that will see the African Court consistently take on non-African Charter cases. Whatever the outcoe, this case serves as another first in the African Court’s continued growth
Just a short post for those who may have missed my recent post on Tunisia’s signature of the Article 34(6) Declaration. The post for the London School of Economics’ Africa blog examines the first signature of the Additional Declaration by a North African country. The post also highlights that, despite the good news of Tunisia’s signature, full access to the African Court remains elusive, with only eight out of 55 AU member states allowing their citizens and NGOs direct access to the African Court. You can read the whole post here.
Things have been a little quiet at The Monitor over the past few weeks. With work trips to beautiful Madison, Wisconsin and then to the seat of the African Court in Arusha, Tanzania the past six weeks have been busy. We’re now focusing on posting some of the fruits born out of our travels. First up is the powerpoint presentation below from my talk at the Wisconsin International Law Journal Annual Symposium, entitled “Regional Human Rights Systems in Crisis”. This symposium brought together a fascinating group of experts and scholars from across the world to discuss human rights systems in South and Central America, Europe, Asia and of course Africa.
My full paper will hopefully be published in the next volume of the Wisconsin International Law Journal, but in the meantime I am posting the slides from my presentation here. The paper and presentation focus on the ongoing thorny issue of access to the African Court and the current problems facing prospective applicants considering bringing cases before the African Court. Enjoy!