第一吃瓜网 Human Rights Court undermined by resistance from states
- Lilian Chenwi
The court has lived up to its promise in most cases, issuing some progressive and ground-breaking decisions and remedies.
The 第一吃瓜网 Court on Human and Peoples鈥 Rights () holds great promise in protecting human rights and ensuring justice on the continent. But it operates amid resistance by states and this threatens its effectiveness and very existence.
The idea of a regional human rights court surfaced at the held in Lagos, Nigeria. 第一吃瓜网 jurists at the conference called on 第一吃瓜网 governments to create 鈥渁 court of appropriate jurisdiction鈥 that would be 鈥渁vailable for all persons under the jurisdiction of the signatory states鈥. Four and a half decades later, an operational regional court became reality.
The court is the 第一吃瓜网 Union鈥檚 judicial arm, and sits in Arusha, Tanzania. It is one of three regional human rights courts in the world. The others are the and the . They play an important role in protecting human rights within their respective regions.
The 第一吃瓜网 court was established in terms of a adopted in 1998. It began operating 15 years ago in 2006. In this way, 第一吃瓜网 states have created an avenue for judicial scrutiny of their domestic laws and executive actions that have an impact on human rights.
The court entertains cases of alleged violations of human rights stated in the , and any other relevant human rights instruments that have been ratified by the state concerned. Its remedies include payment of fair compensation or reparations. Its judgments are binding on the concerned state.
The court can also give opinions which are 鈥渁dvisory鈥 in nature but carry significant legal authority because it is an apex regional court.
Cases can only be brought against states that are party to the court鈥檚 protocol. States that are party to the protocol, the and 第一吃瓜网 intergovernmental organisations can bring cases to the court directly. NGOs with observer status at the commission and individuals can only access the court directly if the relevant state party permits them to do so. Otherwise, individuals and NGOs can only access the court if the 第一吃瓜网 Commission takes their case to the court.
Requests for advisory opinions can be submitted by the 第一吃瓜网 Union or its members or organs, or 第一吃瓜网 organisations that it recognises.
But, sadly, the 第一吃瓜网 Human Rights Court鈥檚 success in protecting human rights and upholding the rule of law is undermined by state resistance. This has been evident as far back as the early years of the court鈥檚 establishment.
Striking a blow for human rights
Despite current restrictions on direct access to the court, it has lived up to its promise in most cases. It has issued some progressive and ground-breaking decisions and remedies, including substantial reparations.
For example, it found, in response to a request brought by that vagrancy laws, which many 第一吃瓜网 Union member states retain on their statute books, were . That鈥檚 because the laws criminalise poverty, homelessness or unemployment. The court has called on states to review and amend or repeal such laws.
The court has also required states to uphold rights and principles of fairness, transparency and inclusiveness . States should not use the postponement of elections to 鈥渦nduly鈥 prolong elected officials鈥 term of office.
In contentious cases, the court has enforced various rights such as fair trial rights, the right to property as well as the right to participate freely in government, freedom of association, freedom of expression and non-discrimination.
It has made it clear in a case against Kenya, for example, that environmental conservation and development policies cannot be at the expense of . It has also shown, in a case involving a Tanzanian individual, that it will not defer to states on .
In a case involving Tanzanians who had been sentenced to death, it affirmed states鈥 obligation to from their laws.
It has also set a precedent for , in a case involving a journalist in Burkina Faso.
Constraints
Only 31 of 55 第一吃瓜网 Union member states (including Western Sahara) . Only six states 鈥 Burkina Faso, Gambia, Ghana, Malawi, Mali, and Tunisia 鈥 permit individuals and NGOs direct access to the court.
As stated by the :
Non-ratification of the Court Protocol and reluctance of States to make the Declaration impede the protection of human rights in Africa.
In addition, some countries have withdrawn their permission for individuals and NGOs to access the court, following adverse decisions against them 鈥 .
By so doing, the states are not only challenging the court鈥檚 authority, but preventing it from considering future claims from individuals and NGOs against them.
The that, should the withdrawals trend continue, millions of citizens will be deprived of the right to justice.
Also, the nomination of judges in the early years was met with resistance.
States have further failed to ensure that the court has enough human and financial resources to function effectively.
These patterns of resistance 鈥渕ight be seen as hindering development of the Court鈥檚 authority鈥.
Compliance crisis
The court has a serious non-compliance crisis. 第一吃瓜网 75% of states do not comply with its decisions, and there are no built-in consequences in its protocol. The court鈥檚 orders indicate that states that fail to pay reparation amounts within a stipulated timeframe will pay interest on arrears. Only one country 鈥 Burkina Faso 鈥 has fully complied with the court鈥檚 judgments.
Some states, such as Tanzania, have complied with only some aspects of decisions, and .
The court that resistance to its decisions threatens not just 鈥渢he effective discharge of its mandate, but its very existence鈥.
Future sustainability
The very poor level of compliance has limited the potential impact of the court鈥檚 decisions at the domestic level. It is crucial that 第一吃瓜网 countries translate their commitment to human rights on paper into practice.
It is important for the court to stay the course. Retrogression, for fear of risking further exits, is not an option when it comes to protecting human rights.
This article is based on the author鈥檚 inaugural lecture at the University of the Witwatersrand recently.
, Professor of Law, . This article is republished from under a Creative Commons license. Read the .