African court on human and people's rights faces uncertain future

The African Court on Human and Peoples’ Rights (African Court) - the continent’s apex human rights court - in June this year ordered the Kenyan government to pay USD $1.3 million in compensation to the indigenous Ogiek community of the Mau Forest whose land rights it ruled had been violated.

Human rights activists and observers are now waiting with bated breath to see if the new government of President William Ruto will comply with this latest ruling against Nairobi.

Historically, the norm has been that most African governments simply ignore the continental court’s rulings, an attitude that some analysts say is reflective of these governments' regard for issues of human rights.

As the African Court has been meeting for its 67th ordinary session from 7 November to 2 December, there has been growing concern that lack of cooperation by a majority of the continent’s 55 states poses a grave threat to the continued existence of the court.

'Poor Level Of Compliance'

A report released earlier this year about the court’s activities in 2021 noted that states' "poor level of compliance" with its rulings was a serious problem. Of the more than 200 judgments and orders made by the court in the 16 years of its existence, only a few had been fully complied with; others had been partially complied with, but a majority of them had been ignored by the respondent countries. 

"One of the major challenges facing the Court at the moment is the perceived lack of cooperation from Member States of the African Union, in particular, in relation to the low level of compliance with the decisions of the Court," the report highlighted.

"Of the over 200 decisions rendered by the Court, as at the time of writing this Report, only one State Party, that is Burkina Faso, had fully complied with the judgments of the Court," it further reads. "As at July 2021, only 7% of judgments of the Court had been fully complied with, 18% partially complied and 75% non-compliance. Some States have stated clearly before the Executive Council that they will not comply with the Court’s decisions."

Professor Lilian Chenwi from the University of the Witwatersrand School of Law, South Africa, pointed out that the poor level of compliance with the court’s rulings has a bearing on its standing. 

"The very poor level of compliance has limited the potential impact of the court’s decisions at the domestic level," noted Professor Chenwi. "It is crucial that African countries translate their commitment to human rights on paper into practice."

Only 33 of 55 African Union member states (including Western Sahara) have ratified the court’s protocol. Only six states - Burkina Faso, Gambia, Ghana, Malawi, Mali, and Tunisia - permit individuals and non-governmental organisations (NGOs) direct access to the court.

Against this background, the report said that the African Court’s success as a human rights court - and the preservation of African human rights generally - was a "collective responsibility," requiring the "active and constructive participation of all stakeholders."

'A Worrisome Trend'

The court has also noted the "worrying trend" in which states against which judgments had been given by the court "withdraw or threaten to withdraw" the declaration they had signed to allow individuals and NGOs to approach the court directly.

The countries that have withdrawn this right are Rwanda (2016), Tanzania (2019), Benin (2020) and Cote d’Ivoire (2020).

The court, which was established in 2006, expressed concern that should this trend continue, it will undermine the human rights protection mechanisms on the continent and have "the immediate effect of depriving millions of citizens of a fundamental right which they had acquired - that of accessing justice directly before the African Court."

It said these withdrawals were evidence of a "decline" in efforts to build democracy, defend human rights and promote the rule of law.

Compliance Monitoring Unit, Online Course

The court has since established a "compliance monitoring unit" that works closely with member states and other AU bodies to "facilitate" compliance by states with its decisions. This is done as part of the court’s constructive engagement with member states. It also helps build capacity for judges from national courts and counsel appearing before the court.

The court has also set up an online human rights course for national judges aimed at "enhancing" their knowledge of regional and international human rights law, and is working to establish an "African Judicial Network" that would provide training and capacity development for judiciaries across the continent.

"While acknowledging the primacy of states to promote and protect human rights, the court also recognises its complementary and supporting role as a supra-national mechanism," the report noted.

The executive council of the court has been urging member states that had withdrawn their agreement allowing individuals and NGOs to approach the court to reconsider their decision. It has also called upon states that had not yet signed the Protocol or allowed individuals and NGOs direct access to the court to do so.

'Mitigate Backlash Against Court'

In an analysis of the situation facing the court, academics Nicole da Silva and Misha Plagis emphasised that the need to save the court from the same fate as faced by some regional courts - such as the SADC Tribunal, which closed after experiencing backlash from member states. 

"Currently, with only six states with Article 34(6) declarations remaining, the African Court is already falling short of its supposed status as a pan-African, continental human rights court," the academics noted.

"If more states withdraw these declarations, the African Court’s pipeline of cases may dry up almost entirely in the coming years," they added. "If the experiences of other African regional courts offer any lessons, mobilization from civil society will be necessary to mitigate backlash against the African Court.

"Beyond that, support from other African states and the African Union will be vital for defending against particular states’ attacks on the Court and helping this institution, created to strengthen human rights enforcement in Africa, fulfill its promise."

"Mobilization from civil society will be necessary to mitigate backlash against the African Court."

'vulnerable people will continue to suffer'

Lloyd Kuveya, Assistant Director at the Centre for Human Rights at the University of Pretoria, said that what has been happening at the African Court demonstrates that African governments generally do not respect human rights.

"Clearly African states detest being taken to court and having many rulings against them and being held accountable," Kuveya told FairPlanet. 

"Many vulnerable and marginalised people will therefore continue to suffer if their rights are not respected," he added. "Even if rights have political and financial implications, African states are urged to respect human and people’s rights guaranteed in the African and other relevant regional and international human rights instruments."

He further suggested that the African Court leadership along with civil society, national human rights institutions, law societies and the media must continue raising awareness about the opportunities available at the continental judicial body and the challenges it is facing around issues of access, ratification, article 34(6) declaration and non-compliance among others. 

"The African Court is a necessary human rights protection mechanism, which was established by AU heads of state to complement the protective mandate of the African Commission on Human and People’s Rights," he further stated.

"The continent’s judicial body and its counterparts, the European Court on Human Rights and Inter-American Court, play a similar role of contributing to the harmonisation of regional human rights norms and improving the protection of human rights in various countries."

'Paying Lip Service To Human Rights'

Dr Victor Ayeni, a senior law lecturer at Adekunle Ajasin University in Nigeria, blamed the current state of affairs at the African Court on a confluence of factors ranging from the absence of an effective monitoring body, low cost of non-compliance and high cost of compliance to weak institutions and a proliferation of illiberal regimes on the continent.

"What this [non-compliance] reveals about the general attitude of most African governments is that they are not all that committed to human rights," Dr Ayeni told FairPlanet, echoing Kuveya of the University of Pretoria.

"They only pay lip service to human rights and cherry pick which remedial orders to comply with," he added. "The number one factor that explains why African governments behave the way they do is a lack of commitment or low level commitment to human rights compliance."

He further opined that most African states that sign or ratify a treaty only do so to 'lock-in' gains in the form of good international reputation and standing in the comity of fellow nations. 

"Some states ratify treaties merely to fulfill human rights conditionality attached to foreign aid and development assistance," he said. "There is no altruistic commitment to upholding human rights norms, standards and tenets."

Image by Oladimeji Odunsi