AN ANALYSIS OF THE DISPUTE SETTLEMENT ARCHITECTURE OF THE AFRICAN UNION (AU)



Abstract
The conglomeration of independent African States under the auspices of an inter-governmental organization, the African Union (AU) prompted a new regional legal order to bridge the divergent areas of interest. The principle of territorial integrity has to be balanced with the equality of State Parties in respecting their treaty-based rights and obligations expressed in the principle of pacta sunt servanda. The tripartite obligation of State Parties to respect, promote and protect human rights is no less true between State Parties inter se than between States and individuals. The failure to respect and protect stipulated obligations inexorably arouse dispute between State Parties and/or between states and their citizens. This paper seeks to identify the varying dimensions of human rights guaranteed by the African Charter on Human and People’s Rights as well as the concomitant dispute settlement mechanisms aimed at securing the stability of and the sustenance of relative peace in the African region.        



1.         Introduction

The international community is bespattered with disputes ranging from the violation of basic human rights of individuals to group rights and to breaches of state obligations to each other. This is attended by an avalanche of settlement mechanisms prompted by the proliferation of treaties and institutions consecrated to ensure compliance with stipulated legal obligations. Some of the judicial institutions that exist at the international sphere include the International Court of Justice (ICJ), the European Court of Justice, and the European Court of Human Rights. More judicial institutions have sprung up in the recent time and they include the International Tribunal for the Law of the Sea, the World Trade Organization (WTO) Dispute settlement system, and the International Criminal Court (ICC). The emergence and development of regional resolution mechanisms have tremendously contributed to the stability and sustenance of relative peace across the international boarders. The focus of this paper is on the dispute resolution mechanisms under the African Union (AU). This work will therefore encapsulate the rights and obligations as contemplated by legal instruments and the corollary resolution mechanisms under the auspices of the African Union.


2.         The African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples Rights is the normative instrument for human rights promotion and protection in Africa. Its adoption in 1981 heralded a new era in the field of human rights and dispute resolutions amongst the inhabitants of Africa.[1] The African Charter garnered its inspiration from previous human rights instruments such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, Convention for the Protection of Human Rights and Fundamental Freedom, and the American Convention on Human Rights.[2] The Charter however, marks a clear departure from other international and regional human rights treaties as it reflects a considerable degree of specificity suitable to the African culture particularly, the inclusion of group rights in the charter. This underscores the solidarity underlying and sustaining the traditional African society. The concept of right is consequently emphasized in favour of the collective right of the people of African communities. The African traditional culture did not present the individual as an independent personality possessed of right over and above the collective right of the society.[3] This is the basis for the inclusion of the group or solidarity right in the Charter. The right to development was yet, another innovation occasioned by the African Charter. Significantly, the African Charter was an instrument of struggle and a liberation movement, fashioned and well disposed to expurgate the debris of imperialism and set on a speedy projectile, the realization of human rights protection for the people.
The African Charter, therefore, contains the civil, political, economic, social and cultural rights. The right to development; right to satisfactory environment; right to peace; and the right of the people to dispose of their wealth and natural resources, are part of the specific rights that constitutes the third-generation or group rights.[4] The Charter demonstrates the interdependence attaching to all human rights. It also has the potential to provide considerable protection of the rights in Africa through proactive interpretation of human right norms and progressive enhancement of the individual complaint’s procedure.[5]
Let us briefly appreciate the rights content of the Charter. The African Charter encapsulates the first, second and third generations of human rights otherwise referred to as the civil and political rights; the economic, social and cultural rights; and the group rights respectively. The first generation of human rights embodies the right to life;[6] right to dignity of human person.[7] right to liberty and security;[8] right to freedom of conscience, profession and religion;[9] right to freedom of expression, information and knowledge;[10] right to freedom of association;[11] right to freedom of assembly,[12] and the right to freedom of movement;[13] right to the enjoyment of right without any form of discrimination;[14] equality before the law and equal protection of the law;[15] right to fair hearing,[16] and the right to asylum.[17] The right of individuals to equal access to public service and property as well as the right to participate in government is also guaranteed by the Charter.[18]

The second generation of rights includes, inter alia, the right to property;[19] the right to work under equitable and satisfactory conditions and to receive equal pay for equal work;[20] the right to good health;[21] the right to education;[22] and the right to participate in the cultural life of the community in which one resides and the protection of the traditional values recognized by the community.[23] The right to family life, the protection of the child and the aged, and the right to non-discrimination against women constitutes an integral part of the second generation of rights (economic, social and cultural rights).[24]
The third generation rights (group rights) encompasses the right to equality of all people,[25] right to self-determination,[26] right to free disposal of wealth and natural resources and lawful compensation in the event of spoliation;[27] right to social and cultural development and the enjoyment of the common heritage of mankind;[28] right to national and international peace and security;[29] and the right to a general environment favourable to development.[30]
Apart from the right content of the African Charter, there are a number of duties imposed by the Charter on the individual, such as: duty towards the family, society, state and other legally recognized communities and the international community;[31] respect for fellow human being without discrimination;[32] preservation of the harmonious development and cohesion of the family; respect and maintenance of the parents; service to the national community; not to compromise the security of the state; to preserve and promote African unity and cultural values.[33] However, the imposition of duties on the individual invariably accords the state the unwholesome opportunity to restrict guaranteed human rights. The correlation of duty to the guaranteed rights has the potential of strengthening government disposition towards abuse of such rights with impunity. Most State Parties have in sundry occasions hidden under the pretext of non-compliance of individuals to their Charter obligations to obviate their protective mandate as stipulated by the Charter. It must be emphasized that the correlation of the Charter rights with the duties ought not to orchestrate exclusionary but a mutually reinforcing effect. The individual has inalienable rights attached to him by virtue of his humanity, and the state must at all times be directly or indirectly held accountable for breeches of human rights.


3.         Dispute Settlement in Africa in a Global Context

Traditionally, African leaders favour the use of quasi-judicial commissions in keeping with the nature of African customary law and long time dispute settlement practice. African traditional dispute settlement tilts towards improving relations between the disputant parties on the basis of equity, good conscience and fair play rather than on strict legality. The notion of forgiveness, conciliation and open truth characterize the African system. The system frowns at adversarial and adjudicative procedures in favour of consensus and amicable dispute settlement. The predisposition of African dispute settlement mechanism towards quasi-judicial body was engendered by the reluctance of African states to relinquish their hard won independence and sovereignty to any form of supra-national entity. Therefore, the African Commission on Human and Peoples’ Rights will be partly on focus.
Nevertheless, an opportunity to establish a judicial institution for the settlement of international disputes in Africa beckoned at the wake of the adoption of the African Charter, although this remained a dream until about six decades later. Under the Charter, special protocols or agreements may, if necessary, supplement the provisions of the present charter.[34] Two of such protocols have been enacted, to wit: the Protocol on the Establishment of an African Court on Human and People’s Rights and the Protocol on the Rights of Women in Africa which entered into force on 25 January 2004 and 25 November 2005 respectively.


4.         The African Commission on Human and Peoples’ Rights

The African Commission on Human and Peoples’ Rights established under Article 30 of the African Charter is a treaty body monitoring the implementation of the African Charter on Human and Peoples’ Rights. The Commission was set up in 1987 with the mandate to monitor states’ compliance with the human and peoples’ rights as provided under the Charter, and to ensure their protection.[35] It is made up of eleven members serving in their individual capacities. In carrying out its promotion mandate, the Commission shall undertake studies and researches on African problems, organize conferences, encourage domestic human rights institutions, and should give its views and make recommendations if need be. The Commission shall also formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples’ rights. Additionally, the Commission shall cooperate with other African and international institutions concerned with the promotion and protection of these rights.[36] The African Commission remains the only quasi-judicial body at the continental level to implement the rights guaranteed in the Charter. The activities of the Commission include consideration of communications, examination of state reports, on-site missions, and inter-session activities of the commissioners, reports of Special Rapporteurs, conferences and seminars.
In its protection mandate, the Commission has competence to receive communications from states and other sources.[37] The Commission is also authorized to interpret all the provisions of the African Charter at the instance of a state party, an institution of the African Union or an African organization recognized by the African Union.[38]


a)         Inter-State Communications

Inter-state communications operate where a state party has good reasons to believe that there has been a violation of the provisions of the African Charter by another state party. The former may, by written communication, draw the attention of the latter to the matter.[39] The offending state should submit a written explanation within three months of the receipt of the communication. The state parties are expected to settle the matter through bilateral negotiation to their satisfaction; otherwise, the matter can be brought to the attention of the Commission by either state.[40] The foregoing does not preclude a state party from referring the matter directly to the Commission upon the exhaustion of all domestic remedies. The offending party has got to make their written and oral representations before the Commission.[41] Upon being furnished with all necessary information, and having explored all expedient avenues to securing amicable settlement of disputes arising from violations of human and peoples’ rights, the Commission shall prepare its report. The report is to contain the facts of the matter, the findings of the Commission and its recommendations, and shall be forwarded to the state parties concerned and to the Assembly of Heads of State and Government.[42]


b)         Communications other than those of State Parties

This could be communications from individuals or Non-Governmental Organizations (NGO’s). Therefore, an individual, group of persons or a Non-Governmental Organisation (NGO) which considers that the rights guaranteed in the Charter have been violated may send a communication to the Commission. Prior to each session of the Commission, the secretary shall make a list of the communications other than those of state parties to the Charter and transmit same to each of the commissioners, who shall indicate which of the communications should be considered. Notably, the Charter does not specifically provide for individual complaints except to the extent it is implied.[43] Such individual communications can only be competent before the Commission if they meet the following grounds:-

a)  They disclose the identity of the author despite his plea of anonymity;
b)  They are compatible with the purpose of the African Charter;
c) They are not couched in a disparaging and insulting language directed against the state concerned, its institutions or the African Union;
d)  They are not mere speculations of the mass media;
e) They are filed upon the exhaustion of all local remedies except such remedies are either not available or are unnecessarily delayed;
f)  They are submitted within reasonable time; and
g) They do not renew cases already settled by the states involved in accordance with the African Charter and the UN Charter.[44]

All communications shall be brought by the chairman of the Commission to the knowledge of the state concerned prior to any substantive consideration.[45] Where the communication bothers on serious violation of human and peoples’ rights, the Commission shall inform the Assembly of Heads of State and Government, who shall call for a factual report of the former.[46] The chairman shall make the report public only on the approval of the Assembly of Heads of States and Government.


c)          Periodic Report

State Parties to the African Charter undertake to submit, every two years, a report whether of legislative or other measures adopted to comply with their obligations under the African Charter. Traditionally, the Commission examines these reports in public sessions, since no specific procedure is laid in that respect.[47]


5.         Jurisprudence of the African Commission under the Dispensation of the Constitutive Act 

The emergence of the African Union indicates stronger commitment of African countries in upholding the standard of human rights regime. By the Constitutive Act, the African Union has as its mandate the responsibility of promoting and protecting human and peoples’ rights consistent with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments. The African Union is also committed to the principle of respect for democratic principles, human rights, the rule of law and good governance. There is growing record in the role of the Commission in implementing human rights in the African continent. The Commission has continued to develop jurisprudence suiting to the state of human rights in Africa, consistent with its mandate of promotion and protecting human rights.[48] Apart from the interpretation role, the Commission shall perform any other task entrusted to it by the Assembly of Heads of State and Government.[49] The rationale behind the foregoing provision is to complement the promotion and protective mandate of the Commission.[50] The procedure governing communications before the African Commission assumes four stages to wit: the seizure stage, admissibility, merits and remedies. In the process of passing through these stages to determine a particular case, the Commission could conduct on – site investigation and recommend interim measures depending on the circumstances of the case.[51]
However, in practice, the secretariat prepares the draft decisions but of course; the draft decision does not displace the responsibility of the Commission in deciding on the merits. All the facts as stated in the draft decision serve as a guide in the deliberations of the Commission. In deliberating over each communication, the Commission considerably relies on the written and oral submissions the parties advance. The Commission applies international human rights laws; offers interpretation of the provisions of the Charter; and weighs the evidence and argument by parties to arrive at its decisions on cases spanning through the different categories of right.


a)      Civil and Political Right

Through its case law, the Commission has progressively distilled the constituent civil and political rights. In earlier decisions, the Commission had the tendency to be laconic in its pronouncements. Later decisions indicate more detailed pronouncements. In Forum of Conscience v. Sierra Leone, the Commission had this to say:

The right to life is the fulcrum of all other rights. It is the fountain through which other rights flow, and any violation of this right without due process amounts to arbitrary deprivation of life. Having found above that the trial of 24 soldiers constituted a breach of due process of law as guaranteed under Article 7 (1)(a) of the Charter, the Commission finds their execution an arbitrary deprivation of the right to life provided for in Article 4 of the Charter.[52]

            In the case of Civil Liberties Organisation v. Nigeria,[53] the Commission complained that the ouster of courts jurisdiction to adjudicate the legality of any decree threatens the independence of the Nigerian judiciary, and therefore, a violation of article 26 of the African Charter. The communication also complains that the ouster clause deprives the citizens of Nigeria of their right to seek redress in the court of violation of their fundamental rights by the act of the Nigerian government.[54] Upon careful perusal and satisfying the procedural requirement, the Commission held as follows:-

                                      i.      That the Decree ousting the court’s jurisdiction is a breach of Article 7 of the African Charter;
                                    ii.      That the ouster clause also offends Article 26 of the African Charter; and
                                  iii.      That the act of the Nigerian government to nullify the domestic effects of the Charter constitutes an affront to the African Charter on Human and People’s Right.[55]

In Constitutional Rights Project v. Nigeria,[56] the thrust of the argument was that the prohibition on judicial review of the special tribunals and lack of judicial appeals against the judgement of these tribunals violate the provision of Article 7(1)(a) of the African Charter on Human and Peoples Rights. The conduct of the trial as characterized by harassment and deprivation of defence counsel, offends the provision of Article 7(1)(c) of the African Charter. Furthermore, the composition of the special tribunal dominated by military personnel, it was argued, violate the right to be tried by impartial tribunal, which is guaranteed by Article 7(1)(d) of the African Charter. Having carefully examined the foregoing complaint, the Commission declared that there was a violation of the provisions of Article 7 (1)(a),(c) and (d) of the African Charter, and further recommended that the condemned persons be freed by the Military Government of Nigeria.[57]
It is important to note that the Commission also found that to consider only deprivation of life as a violation of Article 4 would be too narrow an interpretation. The Commission held as follows:

It cannot be said that the right to respect for one’s life and the dignity of his person ….. would be protected in a state of constant fear and /or threats, as experienced by the victim therefore, the acts of security agents, which forced the victim into hiding to avoid arbitrary arrest, constituted a violation of Article 4.[58]


b)      Economic, Social and Cultural Rights

The economic, social and cultural rights as guaranteed by the African Charter are not circumscribed by the claw-back clauses and limitations unlike the case with the civil and political rights. Unlike the UN International Covenant on Economic, Social and Cultural Rights, the African Charter on Human and Peoples’ Rights imposes an obligation on states parties to implement the economic, social and cultural rights without the progressive approach envisaged by the former. The state’s duty is extended to assist the family, which is the custodian of morals and traditional values recognized in the community. In the case of Malawi African Association & ors. v. Mauritania,[59] the African Commission commented as follows:

…… language is an integral part of the structure of culture; it in fact constitutes its pillar and means of expression par excellence. Its usage enriches the individual and enables him to take an active part in the community and its activities. To deprive a man of such participation amounts to depriving him of his identity.

Notably, the African Commission delivered a landmark decision in the jurisprudence of economic, social and cultural rights in the case of Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights v. Nigeria.[60] The complainants alleged violations of the right to a healthy environment, the right to property, the right to housing and food, and the protection of the family. The petroleum consortium disposed of toxic waste in the environment and local waterways, thus polluting water, air, soil and crops. The consortium also did not adequately maintain its facilities, causing avoidable spills near villages. Environmental pollution caused skin infections, gastrointestinal and respiratory diseases, increased risk of cancers and neurological and reproductive problems. Security forces as well as unidentified gunmen attacked and burnt villages, killed inhabitants, and destroyed crops and animals, thus, putting in jeopardy, among other things, the villagers’ means of livelihood.
The Commission, drawing on international law, insisted that the four obligations of states regarding human rights to wit: to respect, to protect, to promote and to fulfill them applied to all the rights guaranteed by the African Charter. While the Government had the right to explore oil, it failed in its obligation to prevent environmental degradation.[61] The Commission found that the right to health and the right to a generally satisfactory environment were violated. The failure to involve local communities in decisions affecting their development and to monitor the oil consortium’s activities violated Nigeria’s duty to protect its residents from exploitation and plundering of their wealth and natural resources.[62]
It is important to call to mind that the right to housing and the right to food are not explicitly guaranteed by the African Charter, but are only implied. The combined effect of the provisions protecting the right to enjoy the best attainable state of mental and physical health, the right to property and the protection accorded to the family, forbids wanton destruction of shelter, and requires the Nigerian Government to desist from destroying or contaminating food sources. The right to shelter obliges a state not to destroy the housing of its citizens, and not to obstruct efforts by individuals or communities to build destroyed homes. It encompasses the right to protection against forced evictions, harassment and other means of coercion. On the other hand, the right to food is closely linked to the dignity of human beings. Therefore, the right to food is fundamental to the enjoyment of other rights such as health, education, work and political participation.
As part of its remedial measures, the African Commission ordered the Nigerian Government to withhold its attacks on the Ogoni communities and leaders, to carry out investigations into the human rights violations, to prosecute those responsible for the violations, and to compensate the victims adequately. The government consequently prepared environmental and social impact assessments for future oil development, and finally provided information on health and environmental risks. The Commission’s decision in SERAC case is remarkable essentially to infer rights not explicitly guaranteed in the African Charter.
c)       Group Rights

The African Charter provides for group rights – including the right of people to self-determination, political sovereignty over their natural resources, right to development, and the right to a clean environment. The Charter gives no definition to the term people. However, in the Mauritania case, the African Commission interpreted ‘people’ as representing a specific group of the population within the boundaries of a country. The Commission has also examined a claim of self-determination by the Kantagese, as per the provisions of Article 20(1) of the African Charter. It appreciates the position that while all people had the right to self-determination, there might be a controversy as to the definition of ‘people’. It is argued that self-determination can be exercised through independence, self-government, local government, federalism, confederation and unitarism. However, it is apparently not a secessionist approach aimed at negating the preservation of status quo in respect of colonial boundaries. The Commission has developed its work in the area of collective right through particularly the study of indigenous populations.[63] The Commission established a Working Group on Indigenous Populations in Africa with the clear mandate of examining the concept of indigenous people and communities in Africa; studying the implications of the African Charter and the well-being of indigenous communities; considering appropriate recommendations for the monitoring and protection of the rights of indigenous communities, and producing a report of its findings. However, the African Court on Human and Peoples’ Rights will expectedly assume a more protective mandate to complement the jurisprudence of the Commission in dispute settlement.


6.         The African Court on Human and Peoples’ Rights

The international community has witnessed an avalanche of international dispute settlement mechanisms. This is the consequential effect of the number and ambit of institutions consecrated to ensure compliance with the international legal obligations and settlement of disputes arising there from. Peaceful settlement by judicial recourse helps parties to clarify their positions by reducing their over-blown political assertions into factual and legal claims. The judicial course of redress operates to moderate tensions with a consequential better and fuller understanding of opposing claims.[64]
Suffice it to mention in the passing that on July 11, 2000 at its thirty-sixth Ordinary session held in Lome, Togo, the then OAU adopted the Constitutive Act of the African Union (AU) to replace the Charter of the Organization of African Union (OAU) and to strengthen the African Economic Community (AEC) Treaty.[65] The Constitutive Act entered into force on May 26, 2001 and provides for an African Court of Justice (AU Court) among several other organs of the Union. Unlike the Protocol to the African Charter, the AU Act does not define the composition, mandate and functioning of the AU Court. It merely provides that those matters shall be dealt with in a separate future protocol, which has yet to be adopted.
Interestingly, the African Union has adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples Rights.[66] The Court is to complement the protective mandate of the African Commission on Human and Peoples Rights, and defines the organization, jurisdiction and functioning of the court. The African Court on Human and People’s Rights is a structural solution to the problem of enforcement of human rights in African. It is an indispensable component of an effective regime for the protection of human rights. The court is established to deliver legally authoritative and conclusive decisions, and state parties to the protocol undertake to implement the findings of the court, including ordered remedies. The decision or judgment of the court is therefore binding on state parties. Apart from state parties and African intergovernmental organizations, which can go to the African Court directly, individual recourse system assumes two dimensions. Individuals can access the Court directly only if their states of origin have made a declaration in terms of article 34(6) of the African Charter. The second dimension is when the African Commission decides to refer such individual cases to the court after considering the communication. Undoubtedly, the African Commission  remain a tribunal of first and last instance in respect of the individual cases that it is seized with. It is only in terms of enforcement that it may refer cases of non-compliance to the African Court where, of course, the respondent state party concerned has ratified the protocol to the African Court, and such state has not complied with its recommendations within 120 days in accordance with article 59 of the African Charter.[67] A state party, not initially involved in a case, may refer the matter to the court as a third party if he has a definite interest to protect. The court also has the power to render an opinion, at the instance of a state party or of an organization recognized by the African Union, on any legal matter relating to the African Charter, any other applicable African human rights instruments, or any other international human rights treaty ratified by the states concerned.[68] The jurisdiction of the court is limited to matters that are prima facie within its mandate. In other words, the court cannot entertain matters not categorized as human rights disputes. It does not lie on the court to impose treaty obligation on states except such states have assumed such legal duties themselves by acceding to or ratifying a specific treaty.[69]


a)      Court Procedure

The African Charter, under Article 56, stipulates the conditions for admissibility of communications addressed to the African Commission on Human and People’s Rights and the same conditions are applicable to cases before the African Court. The court may either consider the case or transfer same to the Commission.[70] The protocol on the African Court does not contemplate every imaginable rule of procedure, rather, the rules of procedure of the court stands in cross-reference to the former.[71] The court shall conduct its proceedings in public unless it decides. A party to a case is entitled to be represented by a legal practitioner of his or her choice, and legal aid may be made available to a party in deserving cases. All parties in a case, including their representatives and witnesses shall be afforded necessary protection and facilities consistent with the provisions of international law.[72] The court is properly constituted by at least 7 judges. Matters of evidence are also considered by the court, including conducting enquiry.[73] In cases of extreme gravity and urgency, the court can adopt necessary provisional measures to avoid irreparable harm to persons involved.[74]

b)      Court Judgment and Execution

The judgment of the court is decided by a simple majority, and the judgment must be delivered within 90 days of the conclusion of its deliberations. Notice of the adjourned date of judgment must be given to the parties, and the judgment shall be read out in open court. Such a judgment shall embody the reasons for the decision. Upon the establishment of the violation of a human and peoples’ right, the court shall make appropriate orders or grant proper remedies to the situation. The judgment of the court is therefore final and no appeal lies from its decision.[75] Execution of the court judgment is primarily voluntary. State parties to the Protocol undertake to comply with the judgment, and ensure its execution within stipulated time. The court specifies the cases in which state have failed to comply with its judgment, in its report to the regular session of the Assembly of Heads of States and Government. The execution of the judgment of the court is essentially monitored by the Council of Ministers.[76] The Court is meant to complement the protection mandate of the African Commission. Therefore, the Court and the Commission will coexist as independent bodies but within a mutually reinforcing relationship.[77] At any rate, there is overtly a dearth of cases of breach of human rights before the Court probably because the Court is constrained to exercise jurisdiction only on matters of human rights violation whether of the African Charter or of any human right instrument ratified by the state party concern. Hence, disputes unconnected to human rights are not entertained by the African Court on Human and People’s Rights, and therefore stand to ravage the peaceful coexistence in the context of the African Union. However, the Heads of State and Government of the African Union, in its July 1, 2008 Summit held in Sharm El Sheikh, Egypt, signed a Protocol on the merger of the African Court on Human and People’s Rights with the African Court of Justice which is yet to be constituted. This was the aftermath of the decision reached by state parties at the June 2004 African Union Summit. Upon the entry into force of the Protocol, the emerging court will be known as the African Court of Justice and Human Rights. The Court will have a General Section and a Human Rights section. It necessarily follows that the Court shall be one of unlimited jurisdiction poised to adjudicate over disputes of varying nature and dimension. Nevertheless, the prevailing feature of the African Court on Human and People’s Right over the American and European congeners is that actions could be brought before the Court on the basis of any instrument which has been ratified by the state party concerned.[78]


7.         Conclusion and Recommendations

The progressive increase of disputes amongst citizens and between citizens and states parties to the African Union is not a novel development. Rise in disputes is corollary to increase in knowledge and civilization. The more awareness people get to become in terms of their rights and obligations, the more propensities they acquire to guard and enforce those rights. Traditionally, African leaders have always favoured the use of quasi-judicial commissions rather than a court with full judicial powers. This is quite harmonious with the African customary law and long-time dispute settlement practice. The dispute settlement practice in Africa places premium on improving relations between the parties on the basis of equity, good conscience and fair play, rather than on strict legality. It is characterized by the element of forgiveness, conciliation and open truth contrary to the notion of legal fiction and technicality surrounding litigation. The African traditional system of dispute settlement is propitious to consensus and amicable settlement devoid of adversarial and adjudicatory procedures that is characteristic of the strict legality of the west. This position was sustained by the reluctance of the emerging African states to relinquish their hard won independence and sovereignty to any form of supra-national entity. The principle of sovereignty and non interference of other states’ affairs became the fundamental element of the Organization of African Unity (OAU). The reluctance of the African continent towards modern judicial settlement was evidenced by the refusal of OAU to adopt the Draft Charter provision for a court of Mediation, Conciliation and Arbitration to be set up by means of treaty, at the founding conference of the OAU in 1963. The African leaders rather created an ad hoc body – the Commission of Mediation, Conciliation and Arbitration as a mechanism for the peaceful dispute settlement among state parties in order to realize the purpose of the Charter.
The mediatory disposition of African state prevailed right into the early 1980s. Another good opportunity to establish a judicial institution for the settlement of international disputes in Africa beckoned during the adoption of the African Charter on Human and Peoples’ Rights. The OAU refused to establish an African Human Rights Court to enforce the rights guaranteed under the African Charter, fearing that such a tribunal or court would threaten their national sovereignty. Instead, the OAU established an African Human Rights Commission under Article 64(1) of the Charter to promote human and peoples rights, and to ensure their protection in Africa. Owing to certain normative and structural deficiencies, the African Commission has not been able to effectively fulfill its mandate. The decisions and recommendations of the Commission to the African Heads of State and Governments are frequently disregarded, and this was capable of eroding the credibility of the Commission in terms of implementing the human and peoples’ rights. The foregoing inexorably prompted the establishment of the African Court on Human and Peoples’ Rights to not only complement the Commission but also to remedy the obvious and perceived deficiencies of the latter. The court is therefore a welcome development being the most efficacious judicial route designed to achieve significantly the promotion and protection of human and peoples’ rights. The natural consequence is a better and profound settlement of disputes across the African continent.
The provision of adequate logistics and recruitment of competent personnel in the African Court on Human and Peoples’ Rights is greatly recommended to strengthen the efficacy of the court. Sufficient funding of the court is advocated to position the court as independent and corrupt-free judicial panoply designed to enthrone justice at the face of divergent arrays of dispute. The innovation engendered by the Constitutive Act of the African Union and the constitution of the Court on Human and People’s Rights remain the strongest mechanism for dispute settlement under the auspices of African Union. It must be emphasized that the binding nature of judgments of the court and the strategies orchestrated by the Constitutive act and rules of the court are necessary. However, unrelenting effort should be sustained towards enhancing the individual recourse system of bringing cases directly to the court without the condition precedent of a State Party making a Declaration. In this way, a profoundly sustained pep and meaning would have been accorded to judicial settlement of disputes in the context of the African Union.                        


[1] Human Rights Library, University of Minnesota, “Human Rights in the Administration of Justice”, chapter 3, (www document) available at http://humanrights.law.monash.edu.au/monitoring/admchap3.htrn/, visited on 29/11/2011.
[2] E.A. Udu, Human Rights in Africa (Lagos: Mbeyi & Associates Nig. Ltd, 2011) p. 66.
[3] A.V. Oyajobi, ‘Human Rights and Social Justice in Nigeria: Issues, Dilemmas and Challenges’, Journal of Human Rights Law & practice (Nigeria: Civil Liberties Organization, 1993) p. 18. 
[4] O. Gye–Wado, ‘The Effectiveness of the Safeguard Machinery for the Enforcement of Human Right in Africa’, Journal of Human Rights Law & Practice (Nigeria: Civil Liberties Organization, 1992) p. 24. 
[5] H. J. Steiner and P. Alston, International Human Rights in Context: Law, politics, morals – Text and Materials, 2nd ed. (New York: Oxford University Press, 20001) p. 354.
[6] The African Charter on Human and Peoples’ Rights, Article 4. 
[7] Ibid., Article 5. 
[8] Ibid., Article 6.
[9] Ibid., Article 8.
[10] Ibid., Article 9.
[11] Ibid., Article 10.
[12] Ibid., Article 11.
[13] Ibid., Article 12.
[14] Ibid., Article 2.
[15] Ibid., Article 3.(1) and (2).
[16] Ibid., Article 7(1) and (2).
[17] Ibid., Article 12(3).
[18] Ibid., Article 13.
[19] Ibid., Article 14.
[20] Ibid., Article 15.
[21] Ibid., Article 16.
[22] Ibid., Article 17(1).
[23] Ibid., Article 17(1).
[24] Ibid., Article 18.
[25] Ibid., Article 19.
[26] Ibid., Article 20.
[27] Ibid., Article 21.
[28] Ibid., Article 22.
[29] Ibid., Article 23.
[30] Ibid., Article 24.
[31] Ibid., Article 27.
[32] Ibid., Article 28.
[33] Ibid., Article 29(1) – (8).
[34] Ibid., Article 66.
[35] Ibid., Article 64(1).
[36] Ibid., Article 45(1).
[37] Ibid., Article 45(2).
[38] Ibid., Article 45(3).
[39] Ibid., Article 47.
[40] Ibid., Article 48.
[41] Ibid., Article 49, 50 and 51(2).
[42] Ibid., Article 52 and 53.
[43] Ibid., Article 55(1).  
[44] Ibid., Article 56.
[45] Ibid., Article 59.
[46] African Commission on Human and Peoples’ Rights, Examination of State Reports, 14th Session, December 1993: Report of Ghana, available at htt://wwwl.umn.edu/humanrts/achpr/sess14-complete.htm., visited on 7/7/2007 and re-visited on 8/12/2011.
[47] E.A. Udu, supra.
[48] C. A. Odinkalu, ‘The Individual Complaints Procedures of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment, cited in H.J. Steiner and P. Alston, International Human Rights in Context: Law, Politics and Moral, Op. cit., p. 923 – 925.
[49] The African charter on human and peoples rights article 45(3) and (4).
[50] S. Gumedze, ‘Bringing Communications before African Commission on Human and Peoples’ Rights”, African Human Rights Law Journal, p. 118.
[51] African charter on human and peoples’ rights p. 55(2).
[52] 223/96, 14th Annual Activity Report (in compilation of Decisions 1994 – 2001, IHRDA, Banjul 2002, pp. 331 – 334) para. 20.
[53] African Commission on Human Peoples’ Rights Commission No. 129/94, 2 Int.Hum.Rts.R.616 (1995).
[54] African Commission on Human Peoples’ Rights Commission No. 129/94, 2 Int.Hum.Rts.R.616 (1995).
[55] H. J. Steiner and P. Alston, op. cit., pp. 931 – 932, cited in E.A. Udu, op. cit., pp. 90 – 91.
[56] African communication on human and peoples’ rights communication No. 87/93, 3 mt. Hum. Rts R, 137 (1996).
[57] E. A. Udu, op. cit., pp. 92 – 93. 
[58] 205/97 Kazeem Aminu v. Nigeria, 13th Annual Activity Report (in compilation 1994 – 2001, IHRDA, Banjul 2002, pp. 282 – 286), para. 18.
[59] 13th Annual Activity Report (in compilation 1994 – 2001, IHRDA, Banjul 2002, pp. 161 -191), para. 137. 
[60] 15th Annual Activity Report (in Decisions of the African Commission on Human and Peoples Rights on Communications 2002 – 2007, IHRDA, Banjul 2008, pp. 277 – 293). The contention was that the operations of the military government of Nigeria, through the state oil company, the Nigerian National Petroleum Company – the majority shareholder in a consortium with Shell Petroleum Development Corporation caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni people.
[61] 15th Annual Activity Report (in decisions 2002 – 2007, IHRDA, Banjul 2008, pp. 277 - 293), para. 52.  
[62] Ibid., Article 58.
[63] All peoples have the right to existence, the right to their natural resources and property, and the right to their economic, social and cultural development – African Charter on Human and Peoples’ Rights, articles 20, 21 and 22). Notably, land alienation and dispossession as well as the dismissal of indigenous communities customary land rights and other natural resources resulted in the negation of their livelihood systems and deprivation of their means. The very existence of indigenous peoples was consequently threatened, thereby rendering them destitute. 
[64] However, the multiplication of international tribunals has generated heated debates in recent years. It is argued that the proliferation of tribunals will result in the fragmentation of the international legal system or even in the interpretation of international legal norms, thereby leading to forum shopping. This practice with the corollary overlapping of jurisdictions is capable of jeopardizing the unity of international law and its role in inter – state relations.
[65] The treaty establishing the African Economic Community of June 3, 1991 entered into force on May 11, 1994. The gamut of the AEC Treaty is the provision for the establishment of an African Economic Community, through a gradual process that would be achieved by coordination, harmonization and progressive integration of the activities of existing and future regional economic communities.
[66] The protocol was adopted by the Assembly of heads of State and Government of the defunct Organization of African Unity (OAU) on June 9, 1998, at its thirty – fourth ordinary session held in Ouagadougou, Burkina Faso, and entered into force on January 1, 2004. The first judges were sworn in on July 2, 2006 at the seventh AU summit. 
[67] The Draft Rules of Procedure of the Commission, rule 118. 
[68] Protocol on the African Court, Articles 4 and 7.
[69] R.W. Eno, ‘The Jurisdiction of the African Court on Human and Peoples Rights’, African Human Rights Journal, (2002, vol. 2) p. 233.
[70] Protocol to the African Charter on Human and Peoples Rights on the Establishment of the African Court on Human and Peoples Rights, Article 6.
[71] Ibid., Article 8.
[72] Ibid., Article 10.
[73] Ibid., Article 26.
[74] Ibid., Article 27. 
[75] Ibid., Article 28.
[76] Ibid., Article 29.
[77] N.J. Udombana, ‘Towards the African Court on Human and Peoples’ Rights: Better Late than Never’, (2000) 3 Yale Hum. Rts. & Dev. L. J. 45.
[78] The Protocol to the African Charter on the African Court on Human and Peoples’ Rights, Articles 3.                   
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