The prevalence and rising cases of rights violations in Africa, especially by state actors, requires that African member-states ratify the African Court’s protocols to enable it redress the situation through unbiased judgments and right interpretations of laws.
Giving this submission Monday in Dar es Salaam, Tanzania, at the close of capacity building programme for African media professionals was Vice President, African Court for Human and Peoples’ Rights (AfCHPR), Justice Blaise Tchikaya.
Tchikaya, who stood in for the AfCHPR President, Justice Imani D. Aboud, regretted that in the 15 years of the court’s operations, only six countries accept its decisions, four others having withdrawn for different reasons.
According to Tchikaya, who cleared the court of blames for those countries’ withdrawal of declaration, “they have different reasons for not depositing the declaration or for withdrawing their earlier deposits.
“It does not have to do with the efficiency of the court. All the same, what I am saying is that we should have more members.”
He stated that poor ratification of protocols and deposition of the declarations confronting the court implies that only a few non-governmental organisations (NGOs) and individuals are accessing the court.
He insisted that “the fact that African people cannot access the court is very wrong. What I can say is that we do the work of explanation of the laws of member-countries.”
Tchikaya further expressed worries that many African leaders do not understand the activities and worth of the court, particularly towards addressing issues of human rights violation in the continent.
“I don’t think they know the importance of the court. African leaders need to be educated on the workings and dynamism of the court. There is need for them to know more,” he said. “For now, they don’t know much. I hope that in no distant time they will come to the court.”
Concerned that only 31 of the 55 countries in the continent have ratified the court’s protocol, some citizens of African nations were said to have sued their nations at the ECOWAS Court, some of their prayers including a compelling order to ratify the court’s protocol without further delay.
They accused the nations yet to ratify the protocols of promoting human rights violations in their countries.
According to an Abuja-based lawyer, Mr. Justice Oguche, who spoke on who flayed the Nigerian Government’s failure to deposit the declaration, the African Court was established to entrench regional judicial mechanism for the preservation and enforcement of the provisions of the African Charter on Human and Peoples Rights.
“It is essentially created to complement the works the commission set up under the charter. Unfortunately, the expectations for the existence of a regional court to cater for the affairs of rights violations within the continent is completely lost as a result of the failure of some African countries to ratify Article 35 of the Protocol of the court.
“The implication, therefore, is that citizens from those countries can only access the court through their home states. This, in itself, is a misnomer because a large proportion of violations that occur in Africa are traceable to state entities and their direct actors, and even if non-state actors are involved, it is usually at the instance of the state.
“The reason for this is not far-fetched, the emergence of democracy has not in any way curbed dictatorships in the continent, and allowing individual complaints to a supranational court of that nature would expose the misdeeds and aberrations of Africa’s powerful rulers.”
Nevertheless, the main issue is the validity or otherwise of Article 35 of the Protocol which mounted this barrier that has constricted the court’s functional space as it clearly contravenes the charter and violates fundamental rights.
First, it undermines the recognition of the juristic status of the individual under international law, and which also is guaranteed under Article 5 of the Charter. For instance, the Nigerian state cannot be the person to take my complaints to the court when it is the very entity that infringed on my rights.
Secondly, it amounts to a restriction on the exercise and enforcement of the provisions of the charter and creates inequality of those rights between countries that have ratified the article and those that have not, contrary to Articles1, 2 and 3 of the African Charter.
The charter construes the African peoples as a single entity for the purposes of the appointment of its provisions and is blind to any subdivisions and so, this sense of uniformity ought to have been upheld by the protocol. Being a regional human rights instrument, any breach of its provision is a violation of fundamental rights.
Some citizens of the member-states of ECOWAS dragged all their countries before the ECOWAS court demanding that it compels those countries to allow their citizens direct access to the Arusha Court by their immediate ratification of Article 35. The matter comes up on December 8, 2021 for hearing.
Also speaking, an Abuja-based lawyer, Daniel M. Makolo, noted that the conflicts, wars and criminality on the continent are 90 per cent traceable to the various leaders, some of whom allegedly directly sponsor or promote human rights violations on their citizens.
“African leaders capture state power to service their egocentric interest, wherein their record of and for human rights breaches and direct violations are unprecedented.
“So, they’re afraid of their own shadows as they are mostly the violators of the very essence of the establishments of the African charter on the human and peoples’ rights.
“This is the reason they are foot-dragging in depositing the declarations to the court. This will make the court functional and they will likely be punished for their failings and rights violations.”
