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.