The 68th Session of the African Commission on Human and Peoples’ Rights (ACHPR) has just concluded. For civil society organisations, the commission provides an important forum where they can discuss human rights concerns and hold governments to account.
The African Commission and the African Court on Human and Peoples’ Rights play a vital role in upholding fundamental freedoms; the court is the African Union’s continental human rights body, providing an alternative institution that citizens can turn to when they have exhausted all legal avenues in their country.
Regional human rights bodies such as the African Court issue judgments that support fundamental freedoms. Often these decisions overrule rulings made by governments, and in reaction there is now a noticeable trend of African states withdrawing after a decision goes against them and attacking the institutions they helped to create.
Take for example the recent decisions made by Tanzania, Côte d’Ivoire and Benin to withdraw from the African Court. Benin withdrew after the court ordered it to suspend municipal elections planned for May 2020; a case was submitted by exiled presidential candidate Sébastien Germain Ajavon, who was targeted by the authorities and deprived of the right to stand for office. In justifying its withdrawal, Benin’s government claimed the court was interfering in its sovereignty and integrity.
But this exit comes amid a backdrop of escalating rights violations, to the extent that Benin has just been downgraded by the Civicus Monitor, an online platform that tracks civic freedoms across the world; the monitor found that Benin’s respect for fundamental freedoms has deteriorated under President Patrice Talon’s administration.
Rights are also deteriorating in Côte d’Ivoire, which was downgraded by the monitor in December last year. It withdrew from the African Court around the same time as Benin, and also ahead of elections, after the court ruled that it must suspend an arrest warrant for opposition candidate Guillaume Soro, who was convicted of corruption while in exile after he declared his intention to run for president.
Tanzania withdrew in 2019 after several cases were filed against it. In fact, the majority of the judgments have been against Tanzania, which hosts the court. Tanzania’s exit followed a ruling that its mandatory death penalty for murder violates the human rights to life and to a fair trial. All three states withdrew at a time where there was heightened restrictions on civic space.
Countries that withdraw accuse the court of interfering with the state and of bias, but in truth they are expressing their displeasure at having been publicly taken to the court by citizens and civil society organisations. These recent withdrawals from the court are reminiscent of Rwanda’s withdrawal in 2016 and the demise of the SADC Tribunal, disbanded after passing several judgments against Zimbabwe.
The attacks on these African institutions violate principles of the African Charter and undermine the founding principles of the AU, which affirm the promotion of good governance, democracy, respect for human rights, justice and the rule of law.
The African Court has made some significant rulings that upheld the rights of citizens to participate in government and the rights to freedom of expression; its orders are binding and can include orders of compensation and reparation. For individuals and civil society, the court can objectively rule against human rights violations committed by states and hold states to account, particularly when national judicial bodies conspicuously allow states to influence their judgments.
The court has made landmark judgments that have established human rights precedents across Africa. In 2017, for example, the court elaborated on a judgment of the ACHPR against the Kenyan government after an application was brought on behalf of the Ogiek people, an ethnic group of hunter-gatherers indigenous to the Mau forest. The Ogiek said they had been forcefully removed from their forest home after the Kenyan government sold much of their land to commercial interests. The ruling established several precedents for indigenous groups.
In a case brought before the court in 2013 by Media Defence Initiative, the court ruled that the state of Burkina Faso violated the rights to free expression of journalist Lohé Issa Konaté. The high court in the capital Ouagadougou convicted him of defamation and sentenced him to 12 months in prison and a fine after he published an article alleging corrupt practices by a state prosecutor. This was a landmark judgment relating to freedom of the press, as the court noted that public figures must tolerate more criticism, and ordered Burkina Faso to amend its defamation legislation.
The withdrawal of states from the African Court will have grave consequences for human rights, as individuals and civil society groups will no longer have direct access to it. The AU has a clear obligation to protect and strengthen its integrity. A strong, independent and effective African Court translates into a successful and reliable AU, which should publicly endorse the judgments of the court and call out states that undermine its rulings. Civil society should continue to publicly affirm the relevance of the court in promoting human rights and holding governments to account.
David Kode is the advocacy and campaigns lead at global civil society alliance Civicus