Lack of commitment dooms Africa's human rights court
In October last year the African Court on Human and Peoples’ Rights held a “sensitisation” seminar in Johannesburg. It aimed to make South Africans, institutions and organisations aware of the court, its role, mandate and track record.
This is peculiar. Courts do not often need to raise their public profile or solicit new work. But the judges of the African court have good reason for this outreach: between 2008 and early this year the court received only 10 cases, despite myriad human- rights violations across the continent. The deadline for an essay competition for law students in African universities “to promote the court and its activities” has been extended from January 31 to June 30 because of too few takers.
The seminar took place days after the 30th anniversary of the African Charter on Human and Peoples’ Rights on October 21, Africa Human Rights Day. The charter was developed to guarantee the civil, political, economic, social and cultural rights of people in African countries. The African Commission on Human and Peoples’ Rights was established in Banjul, Gambia, to monitor compliance.
Despite some success, the commission’s work has often been inadequate. Africa has witnessed decades of human-rights violations, genocide and oppression. Many state parties are reluctant to comply with the commission’s recommendations. Thus African leaders established the African court in 1998 to enforce the commission’s protection mandate, bringing renewed hopes of improved human-rights protection.
But a lack of commitment is illustrated by serious delays in the election and appointment of judges to the court. The first judges were appointed only in 2006. Two more years were required before the court was ready to receive cases at its seat in Arusha, Tanzania. Despite the high proportion of women among victims of human-rights abuses in Africa, there are only two female judges among the court’s 11.
The charter was ratified by 53 of the 54 African states, but the court protocol by only 26, including South Africa. Access by individuals and non-governmental organisations is limited by articles 5(3) and 34(6) of the protocol, which prevents the lodging of human-rights petitions unless the state in question has both ratified the protocol and made a special declaration accepting the competence of the court. In this case, a state must grant individuals and NGOs access to the court, thus opening itself to law suits. Perhaps not surprisingly, only five countries—Burkina Faso, Ghana, Mali, Malawi and Tanzania—have made this declaration.
Thirty years is long enough to define the character of a person or an institution. The charter and the court are important milestones for Africa, but the human-rights architecture and institutions remain works in progress. The doctrine of “African solutions for African problems” will carry weight only when Africa begins to respect its own institutions, both in word and in practice.
Webster Zambara is a senior project leader for the Southern Africa desk at the Institute for Justice and Reconciliation. An earlier version of this article was first published in the SA Reconciliation Barometer newsletter.