XV Edition GIZ Law Journal

AFRICAN UNION

AFRICAN UNION

Member States have signed the Maputo Protocol, but only eight (8) had ratified it. As the continent awaits the coming into force of the MalaboProtocol,andthesubsequentoperationalisation of the single Court, the African Court has been fully operationalized. The Court became operational in 2006 after the swearing in of the first Judges at the AU summit held in Banjul, in The Gambia and is based in Arusha, Tanzania. As of August 2020, 52 Member States of the AU have signed the Protocol, 30 of which had ratified it. Of the 30 State Parties, only six (6) – Burkina Faso, Malawi, Mali, Ghana, The Gambia and Tunisia – still maintain the declaration they deposited in conformity with Article 34(6) of the Protocol that allows the African Court to receive cases directly from individuals and NGOs. Although it can be considered young, the African Court has over the past 10 years actively handled cases of human rights violations and issued landmark judgements thereof. As of October 2020, the Court has received 295 applications, of which 278 are by individuals, 14 are by NGOs and three (3) by the African Commission . Although this performance is quite commendable, it has been met with clear backlash from State Parties to the Protocol and is likely to generate further backlash, given the regional context in which the Court operates 50 . Even though the transformation of the OAU into the AU came with a new principle on non-indifference, contrary to that of non-interference, Africa is known for upholding state sovereignty, which in practice reinforces the latter principle. In addition, the Court operates in an environment where different governance systems co exist, characterized by authoritarian and democratic states. Many of these states are facing governance challenges, including systemic violations and abuses of human rights ignited by armed conflicts, terrorism, shrinkingcivic andpolitical spaces, political instabilities and brutality by armed forces.

Plan for the Promotion and Protection of Human and Peoples’ Rights in Africa that was drafted as part of the recommendations from the AU theme of the year 2016: The Year of Human Rights with particular Focus on the Rights of Women, the Commission is encouraged to actively engage with National Human Rights Institutions. This is intended to increase engagement with State Parties to the African Charter as well as strengthen national human rights redress mechanisms for human rights violations. 2.2. The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol) was adopted in June 1998 in Burkina Faso and came into force in January 2004. The idea to establish the African Court can be traced to the 1990s, a period characterized by several landmark occurrences, which included the end of the cold war and apartheid regime in South Africa. This period was also characterized by different waves of democratization in Africa, signaling the need for judicial mechanisms that would guarantee the protection of human and peoples’ rights, as the continent strived to consolidate its democratic gains and moved towards an integrated Africa. As such, the African Court was established as a mechanism with complementary protective mandate to the African Commission. However, in 2003, the AU Assembly of Heads of State and Government adopted a Protocol of the Court of Justice of the African Union (Court of Justice), without any reference to the already existing African Court. This prompted the AU Assembly of Heads of State and Government in 2014 to adopt a Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol), which provided for the merger of the African Court and Court of Justice into a single Court 48 . As of June 2020, 33 AU

The backlash to the African Court has taken variety of forms, including, as earlier stated, withdrawal of four (4) States Parties – Rwanda, Tanzania, Cote D’Ivoire and Benin – of their declaration allowing individuals and NGOs to petition the African Court. Another form has been deliberate non-compliance of State Parties to the judgements of the Court, withmany national Courts accusing the African Court of interference in their jurisdiction. Although the backlash to the African Court is not particular to the African Human Rights System, some of the forms exhibited by some State Parties to the Protocol, signal deeper concerns in the willingness of these States to guarantee the full enjoyment of fundamental rights for all. The deliberate inhibition of the individuals and NGOs to directly access the African Court, in a context where local remedies are either not adequate or unduly prolonged, leaves citizens in the concerned states with no alternative regional mechanisms, rather international mechanisms. It is also important to note that the deliberate delay by AU Member States to ratify the Malabo Protocol, and the repeated calls by some of the Member States to withdraw from the International Criminal Court, continue to leave the African Court in an insecure institutional situation. The uncertainties regarding when the African Court of Justice and Human Rights will come into existence, has left the African Court in a challenging predicament, further hampering its full growth. In addition, although there is growing reference to the African Court jurisprudence in some national courts, some State Parties to the Protocol have often accused the Court of relying heavily on international jurisprudences - European and Inter American Courts of Human Rights – which do not reflect Africa’s “realities”. The above cited backlashes to the African Court notwithstanding, the Court continues to undertake judicial diplomacy initiatives, including bilateral engagements with State Parties that have withdrawn from declaration 34 (6) of the Protocol. The Court is also exploring ways towards the use of the amicable

settlement procedure. This follows the trend of most national courts resorting tomore acceptable traditional African forms of alternative dispute resolution mechanisms, including mediation. Further, the Court continues to undertake sensitization initiatives, including training of legal counsels on themandate and jurisprudence of the Court, as well as jurisdictional and admissibility limits of the Court. Similarly, the African Court has undertaken trainings of media personnel on the mandate of the Court across the continent. This continues to improve the quality of cases brought before the African Court. 3. Conclusion Although the African Human Rights System faces serious challenges, which if not addressed have the potential to inhibit its effectiveness, it is important to recognize that its very existence is already a key milestone to the continent. It has provided an opportunity for international human rights to play a critical role in the promotion and protection of human and peoples’ rights in Africa, which otherwise would not have existed. Specifically, the African Human Rights System has been critical in the interpretation of human rights within the African context, which would have otherwise been viewed as foreign notions, reinforcing their acceptability and applicability within the regional normative and institutional frameworks. It is also important to note that unlike other regional human rights systems, the African System puts emphasis on peoples’ rights, which affirms a commitment to guarantee fundamental rights for all. In addition, the transformation of the AU from the Union of the States to that of the people, puts the core values of human existence at the fore front of the Union. This provides a broader framework for holding its Member States accountable for their actions and inactions towards the respect, promotion and protection of human rights for all, otherwise, this role will be relegated to international human rights mechanisms.

48 Article 1 and 2 of the Protocol on the Statute of the African Court of Justice and Human Rights 49 Status of Contentious Matters before the African Court on Human and Peoples’ Rights - https://www.african-court.org/en/index.php/ cases/2016-10-17-16-18-21 50 Daly TG, Wiebusch M, “The African Court on Human and Peoples’ Rights: Mapping Resistance against a Young Court” (2018). International Journal of Law in Context 14, 294–313. https://doi.org/10.1017/S1744552318000083

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