By Edward Qorro
As the calendar flipped to the dawn of a New Year, the African Court on Human and Peoples' Rights (AfCHPR) confronted an uncomfortable truth.
The court's president, Lady Justice Imani Aboud, voiced her concern over member states of the African Union (AU) almost defeating the objective of establishing the judicial body by consistently overlooking its rulings.
"We start 2024 with pretty much the same challenges we faced in 2023," she said, noting that only 34 of the AU member states had ratified the Protocol to the African Charter on Human and Peoples' Rights that laid the foundation for the court over 25 years ago.
Of these 34 nations, just eight have deposited the relevant declaration under Article 34(6) of the Protocol.
This clause allows individuals and NGOs to submit complaints to the court directly, provided the state(s) concerned have permitted them to do so.
Alarmingly, less than 10 per cent of the over 200 decisions adopted by the court since its inception have been implemented.
The court has faced multiple setbacks, with Rwanda, Tanzania, Benin, and Cote d'Ivoire withdrawing their 34(6) declarations between 2016 and 2020.
These actions have hindered the AfCHPR's efforts to protect human rights on the continent and deprived people of an avenue of justice they had already been granted, Lady Justice Aboud pointed out.
The court's president highlighted what she said was a legitimate public concern about AfCHPR's mandate being obstructed by inadequate member-state cooperation.
"I want to make this plea to all member states. The African Court is your baby. You had established it for a purpose – to assist you in meeting your international human rights obligations and contribute to the socio-economic and political development of the continent," Lady Justice Aboud said.
According to her, the only way for the court to do this was "if member states give it the necessary support to enable it effectively discharge its mandate".
Misplaced apprehensions
Several legal experts have criticised AU member states for their alleged indifference towards the court and lack of political commitment.
"This is a clear manifestation of the unwillingness of African governments and states to grant access to this continental judicial body and ensure the protection and promotion of human rights on the continent," Sophia Ebby, coordinator of the African Court Coalition, tells TRT Afrika.
Ebby believes some AU member states hesitate to honour their obligations to the court because they fear the implications of having an authoritative continental judicial body watching over them, especially in areas where human rights violations are rampant.
She points out that such fears are misplaced and born out of a lack of understanding about the African Court's mandate and functioning being more of a deterrent than anything else.
Ebby also dismisses fears that all member states ratifying the Protocol and depositing their respective Article 34(6) Declarations would undermine national domestic courts.
"The African Court complements national courts and enhances human rights protection on the continent. Applicants must exhaust all other legal remedies before submitting cases to the African Court," she explains.
Coordinating mechanism
Member states could have different reasons for not implementing decisions of the African Court.
As Ebby points out, the implementation process involves several government departments — from ministerial to legislative and judicial departments.
The absence of a mechanism for coordination among these departments at the national level apparently makes it difficult to implement the African Court's decisions.
"Even when some aspects are implemented, states rarely report them to the African Court," she tells TRT Afrika.
Some African countries have openly differed with the court on the grounds of its rulings impinging on their sovereignty.
During his official visit to the court in February 2022, Tanzanian Prime Minister Kassim Majaliwa urged AfCHPR to recognise the importance of discharging its mandate with faith.
"The performance of the court has in the recent past been affected by some countries' withdrawal.
This is a clear signal that the court must exercise faith as every nation is entitled to their sovereignty," he said.
Ebby sees such arguments as an excuse not to be accountable.
"When states ratify human rights protocols, they understand that they relinquish part of their sovereignty and agree to be bound by those rules," she says.
International law mandates that once a state ratifies a protocol, it must comply with the orders or decisions rendered by the entities established under that treaty.
This is elucidated as the principle of "Pacta sunt servanda" — Latin for "agreements must be kept" – under Article 26 of the Vienna Convention on the Law of Treaties.
"Every treaty is binding upon the parties to it and must be performed by them in good faith," states the convention.
