WEBINAR ON JUDICIAL DIPLOMACY FOR THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS.
21 OCTOBER, 2020
The African Court on Human and Peoples’ Rights (the Court) was established in line with Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol). The mandate of the Court complements and enhances the protective mandate of the African Commission on Human and Peoples’ Rights by strengthening the human rights protection system in Africa and ensuring the respect for and compliance with the African Charter on Human and Peoples’ Rights (The Charter), as well as other regional and international human rights instruments, through judicial decisions. The African Court is the principal adjudicatory human rights mechanism in the continent in the enforcement of human rights as it has both advisory as well as contentious jurisdictions.
Regarding its advisory powers, the Court, on the request of any member state of the African Union (AU), the AU itself or any of its institutions/organs, can render such opinions regarding any legal issues concerning the Charter and other human rights instruments. Meanwhile its contentious mandate confers on it, jurisdiction to adjudicate over human rights cases brought before it by Member states, the Commission, African Intergovernmental Organizations. The Contentious jurisdiction of the African Court is far–reaching as it allows the court to entertain cases filed against member states by individuals and Non-Governmental Organizations pursuant to Articles 5(3) and 34 (6) of the Protocol creating the Court. Nonetheless, Article 34 (6) above carries a caveat, which provides that before individuals and NGOs can do so, the Member State involved must have first, submitted itself to the contentious jurisdiction of the court by signing/making a declaration allowing individuals and NGOs to do so. From the creation of the court, only ten countries have signed that Declaration (Ghana, Tunisia, Mali, Rwanda, Malawi, Tanzania, Cote D’Ivoire, Benin, Burkina Faso, and The Gambia).
The Protocol establishing the African Court on Human and Peoples’ Rights was adopted on 9 June 1998 in Burkina Faso and came into force on 25 January 2004. The Court became operational in 2006 after the swearing in of the first Judges at the African Union summit held in Banjul, in The Gambia. As of August 2020, 52 Member States of the African Union had signed the Protocol, 30 of which had ratified it. Of the 30
State Parties, only six (6), (Burkina Faso, Malawi, Mali, Ghana, The Gambia and Tunisia) still maintained the Declaration they deposited in conformity with Article 34(6) of the Protocol that allows the Court to receive cases directly from individuals and NGOs.
The core values the Court include, ensuring:
a. Judicial independence from any partisanship, bias influence, whether it comes from States, NGOs, funding agencies or individuals;
b. Fair and impartial application and interpretation of the provisions of the African Charter, the Protocol, the Rules and other relevant international human rights instruments;
c. Transparent and ethical accountability in the operations of the Court;
d. Fundamental rights of every individual to enjoy basic civil, political, social, economic and cultural rights are upheld;
e. Collaboration with relevant stakeholders in pursuance of the Court’s objective of protecting human and peoples’ rights;
f. Non-discrimination and equality in performance of the work of the Court;
g. Integrity of the Judges and staff working at the Court;
h. Provide equal access to all potential users of the Court;
i. Be responsive to the needs of those who approach the Court.
Since its operationalization in 2006, one of the strategic objectives of the Court has been to “collaborate with sub-regional and national judicial bodies to enhance the protection of human rights on the continent”.1 It has registered remarkable strides towards the protection and promotion of human rights in the continent by delivering a plethora of judgements/decisions. The Court has also maintained a good relationship with other stakeholders, in particular Member States, other African Union Organs, National Human Rights Institutions (NHRIs) and Civil Society Organizations
(CSOs) in general,2 albeit, within the limit and nature of its mandate, and in cognizance of the need to protect its integrity and independence.
However, in the space of four years, between 2016 and 2020, four of the ten States3 that had recognised the jurisdiction of the African Court to receive cases directly from individuals and NGOs withdrew their declarations made under article 34(6) of the Court Protocol. The first country was Rwanda in 2016, followed by Tanzania in 2019 and then Cote D’Ivoire and Benin in 2020. A common feature about all the withdrawals, except for Tanzania’s, is that the withdrawals were done less than five years after they were deposited.
2. Rationale for the Webinar
The withdrawals from the Protocol raises pertinent concerns and the need for appreciative enquiry to interrogate the reasons for the withdrawals. While this form of contestation is not unprecedented in the history of states’ behaviour towards international courts, the number of withdrawals, and especially given the fact that the last three withdrawals took place within a space of six months, and the last two within a space of a week, requires urgent action to be taken.
The withdrawals also provide an opportunity for the African Union, the African Court and other relevant human rights stakeholders on the continent to further reflect on the important role the Court is playing and measures that can be put in place to strengthen the Court and ensure it effectively discharges its mandate. The success of the African Court in particular and the African human rights system as a whole depends on the stakeholders utilising the system, in particular Member States of the African Union.
In light of the foregoing, the Institute for Human Rights and Development in Africa (IHRDA), the African Centre for Democracy and Human Rights Studies (ACDHRS) and the United Nations Office of the High Commissioner for Human Rights, (OHCHR) intend to hold a webinar, bringing together major human rights stakeholders on the continent, to brainstorm and debate on what can be done, in the wake of these withdrawals, to protect its independence and integrity, and enhance its ability to effectively protect human rights and dispense justice on the continent. This webinar dubbed “Judicial Diplomacy on the African Court”, will be a platform for constructive and frank discussion and engagement among
2 The Court has undertaken over 30 sensitization visits to Member States to encourage those States that have not yet done so, to ratify the Protocol and/or deposit the Article 34(6) Declaration. The Court held a continental seminar with NHRIs in 2011 and a Continental Conference for Women NGOs in 2013 and meets regularly with AU Human Rights Organs.
3 These States are Rwanda, Tanzania, Benin and Cote d’Ivoire.
relevant stakeholders to reflect on drivers and root causes of
withdrawals, generate evidence for strategic advocacy and engagement to help the Court devise strategies of fulfilling its mandate and engagement with countries which have withdrawn.
The overall objective of the webinar is to take stock through analysis of the strengths, weaknesses and the opportunities of the level of the current Court’s collaboration with relevant stakeholders, particularly Member States, to brainstorm and agree on strategies to better promote the work of the African Court on Human and Peoples’ Rights.
The specific objectives will be to:
• Examine trends and patterns in ratification of the Protocol establishing the Court, and engage with relevant actors to answer critical questions, while interrogating emerging concerns such as: slow ratification, withdrawal by State Parties to inform strategies to address them. The outcomes of the webinar will generate evidence to guide both the Court and the AU Legal Counsel on how to engage with Member States, going forward.
• Explore and reflect on the role of CSOs to create awareness and visibility for the Court by ensuring that stakeholders, particularly Member States, understand the role of the Court as complementary to their obligation to promote and protect human rights in their respective territory.
• Examine the role that the Office of the AUC Chairperson can play in promoting the work of the Court including on the ratification of the Court’s Protocol. Through these discussions, strategies could be developed/suggested on how the Court could advocate for the AUC Chairperson to hold from time to time a meeting with Member States or a meeting with African Attorney Generals on the role of the Court.
• Engage with States which have made the article 34(6) declaration to share their perspectives on the purpose, impact and benefits of the declaration on the protection of human rights in Africa as well as sharing States’ perspectives on their expectations of the Court and how they in turn can safeguard its independence and integrity.
• Discuss the possibility of advocating for the appointing a Special Envoy on the African Court
• Discuss and emphasize on the importance of judicial visits by the Court to Member States to accelerate the ratification process and implementation of its decisions. Possibilities of collaboration between the Court, the Office of the AU Legal Counsel and CSOs in achieving this goal will also be discussed.
• Explore how to support CSOs in their advocacy campaign to support the work of the Court;
• Explore avenues for judicial dialogues and experience sharing by the African Court and other continental human rights bodies like the European Court on Human Rights and the Inter-American Court on Human Rights, etc.
4. Venue, Date and participants
It will be a virtual meeting through Zoom on 21 October 2020.
– Representatives of AU Member States
– Representatives of the African Court on Human and Peoples’ Rights;
– Representatives of African Union Office of the Legal Counsel;
– Representatives of the African Commission on Human and Peoples’ Rights;
– Representatives of the African Committee of Experts on the Rights and Welfare of the Child;
– Representative of the Department for Political Affairs;
– Representatives of the Pan-African Parliament;
– Representatives of the African Union Advisory Board on Corruption;
– The CSO Coalition for an effective African Court;
– The Pan African Lawyers Union (PALU)
– Networks of African HRD (West, East, Central, South and North)
– Institute for Human Rights and Development in Africa (IHRDA)
– African Centre for Democracy & Human Rights Studies (ACDHRS)
– AU Watch
– Network of National Human Rights Institutions (NANHRI)
– Institute of Human Rights and Development in Africa (IHRDA)
– ARTICLE 19
– EQUALITY NOW