TABLE OF CONTENTS
II. The Court with bound hands – Art 34(6) of the Protocol and other legal obstacles
1. Art 34(6) of the Protocol
2. Challenging Art 34(6) of the Protocol
3. Referring cases to the Commission
4. “The Court is a creature of its Protocol”
III. The Court on human rights
1. The “Employment Contract” Court?
2. The African Court of Human and Peoples’ Rights
IV. Overall conclusions
Ten years after the establishment of the African Court of Human and Peoples’ Rights, the question arises how the Court has dealt with human rights issues so far. By analyzing the behavior of the Court in its case law, this paper shall examine the contribution of the African Court to the development of human rights in Africa and what its prospects might be.
This paper will emphasize the procedural problems that Art 34(6) of the Protocol represents concerning the access of African citizens to the Court and how the case law on this issue evidences the conflict between state sovereignty and human rights on the African continent, and the Court’s difficult position in trying to reconcile them. Furthermore, the paper will provide an overview of the case law of the Court on human rights issues. On the one hand, the Court’s decisions highlight a serious confusion among the population concerning the Court’s role, showing that the Court is often considered to be an appellate organ that deals with ordinary civil law matters. On the other hand, however, once the Court comes to decide, it is capable of taking a liberal approach concerning political rights. Based on this case law, the paper will provide some main conclusions and give an outlook on the future of the Court.
The combined legacy of its checkered colonial and post-colonial history continues to haunt Africa still today. The African human rights system is faced with almost insurmountable challenges: massive violations on a continent of immense diversity, where a tradition of domestic compliance with human rights norms is still to be established1.
The African Charter of Human and Peoples’ Rights (“Charter”) came into effect on 21 October 1986 and intends to promote and protect human rights and basic freedoms on the African continent. The Charter reflects a peculiar Cold War compromise between the ideological and belief systems represented at its negotiation, which were described as including “atheists, animists, Christians, Hindus, Jews and Muslims; and over 50 countries and islands with Marxist-Leninist, capitalist, socialist, military, one-party and democratic regimes”2. This means that the Charter recognizes universal human rights, but also reflects the wish of the Member States of the African Union (“AU”) to maintain their distance from both the East and the West in their conception of the ideological function of human rights3. It makes explicit reference to the “historical tradition and the values of African civilization” in its preamble and includes some peculiarities, which differ it from the European or American Charter of Human Rights4.
However, the African Charter is often considered to be an instrument that is largely promotional with no credible enforcement mechanism. This is hardly surprising, because virtually no African State could even boast of a nominal democracy in 1981, when the Charter was adopted5. In 1981, the Charter provided only for the creation of a Commission and not a Court on human rights, in contrast with the European and the Inter-American systems which, at the time, had both. Several reasons have been advanced for this. On the one hand there is the more idealistic explanation that the traditional way of solving disputes in Africa is through mediation and conciliation, not through the adversarial, “win or lose” mechanism of a court. On the other hand, there is the view that the member States of the AU were protective of their newly found sovereignty, and did not wish to limit it by means of a supra-national court6. However, with respect to specific functions and to its performance in general - and commentators seem to agree on this point - the African Commission (“Commission”) has been a disappointment7.
Nevertheless, in the last decade of the 20th century, African States became more open to international justice in the conduct of their internal affairs. Emergent democracies such as Namibia, Malawi, Benin, South Africa, Tanzania, and Mali were more inclined than their predecessors to respect human rights at home8. The presence of other regional human rights courts in the Americas and Europe advanced the idea within the modern African State that its conduct toward its own citizens is no longer an internal, domestic matter.
The African Court of Human and Peoples’ Rights (“Court”) was established by the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (“Protocol”) which entered into force in 2004. The newly created Court was considered a way to put some “teeth” into the system: hopes were high that it would operate in a context less hostile than the environment that determined and limited the power and effectiveness of the Commission9. On its website, the Court presents itself in the following way:
“The African Court on Human and Peoples' Rights (the Court) is a continental court established by African countries to ensure protection of human and peoples’ rights in Africa. It complements and reinforces the functions of the African Commission on Human and Peoples' Rights. (…) The Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples' Rights, the Protocol and any other relevant human rights instrument ratified by the States concerned.
The Court is composed of eleven Judges, nationals of Member States of the African Union (…), elected by their respective States. (…) The judges are elected for a six year or four year term (…). The Court (…) moved to its seat in Arusha, the United Republic of Tanzania in 2007”10.
Importantly, the Court’s judgments are final, without appeal and binding on the States party to the case. However, apart from settling disputes, the doctrine considers that the Court’s main task should be to create a body of law with precedential value and an interpretation of the substantive law of the Charter and other human rights documents to guide and direct States. Such forward-looking decisions would deter all states from future misconduct by modifying their behavior11.
Ten years after the establishment of the Court, the question arises on how the Court has dealt with human rights issues so far. Has the Court fulfilled its task of starting to create such a “body of law with precedential value”? By analyzing the behavior of the Court in its case law, this paper shall examine the contribution of the African Court to the development of human rights in Africa.
Section II of this paper will emphasize the procedural problems that Art 34(6) of the Protocol represents concerning the access of African citizens to the Court. The case law on Art 34(6) of the Protocol evidences the conflict between State sovereignty and human rights on the African continent, and the Court’s difficult position in trying to reconcile them. In Section III, the paper will provide an overview of the case law of the Court on human rights issues. On the one hand, the Court’s decisions highlight a serious confusion among the population concerning the Court’s task, showing that the Court is often considered to be an appellate organ that deals with ordinary civil law matters. On the other hand, however, once the Court comes to decide, it is capable of taking a liberal approach concerning political rights. Finally, Section IV will provide some main conclusions and give an outlook on the future of the Court.
II. THE COURT WITH BOUND HANDS – ART 34(6) OF THE PROTOCOL AND OTHER LEGAL OBSTACLES
1. Art 34(6) of the Protocol
Michelot Yogogombaye v. the Republic of Senegal12 was the first case to put into evidence the main obstacle that keeps the Court from exercising its task properly: Art 34(6) of the Protocol. According to Art 5(3) of the Protocol, Non Governmental Organizations (“NGO”) and individuals may only bring cases before the Court in accordance with Art 34(6) of the Protocol13. However, according to Art 34(6), individuals and NGOs cannot bring a suit under Art 5(3) against a State unless that State has made a declaration accepting the jurisdiction of the Court, in contrast to State parties and African intergovernmental organizations, which enjoy “automatic” access to the Court once a State ratifies the Protocol14. Up to this day, only 7 out of 54 have made such a declaration15.
In Michelot Yogogombaye v. the Republic of Senegal, a 13 page long judgment, the Court diligently examines each procedural condition, but in the end comes to the conclusion that
“Senegal was not on the list of the countries that have made the said declaration. Consequently, the Court concludes that Senegal has not accepted the jurisdiction of the Court to hear cases instituted directly against the country by individuals or [NGOs]. In the circumstances, the Court holds that, pursuant to Article 34 (6), it does not have jurisdiction to hear the application”16.
The Court’s decision gives the sad impression of a Court that is willing to decide on the merits but finds no way around the procedural obstacle. This behavior could be characterized as reluctant judicial restraint. The Court explains that there is no alternative way of interpreting art 34(6) of the Protocol, the text being sufficiently clear. It tries to read the concerned article in every way possible, even thinking of absurd interpretations such as rejecting only the physical reception of the petition: “The word ‘receive’ should not […] be understood in its literal meaning as referring to ‘physically receiving’ ”. By doing this, the Court goes very far in its explanation, giving the impression that it is trying to apologize for its “failure” to deal with the issue. Furthermore, it is also remarkable that the Court rejects to hear the case in a judgment, since such a procedural rejection is normally made in a simple letter by the Registrar.
The reasons for the willingness of the Court probably lie in the fact that this is the first application filed. Aware of their role as the new mechanism for the protection human rights in Africa, the judges knew what a message they would send if they would refuse to decide on the very first case ever brought before them. After the failure of the Commission, the high expectations of the population were probably sociological factors pushing the Court (the first African court on human rights!) to render a decision in order to protect human rights – however, these sociological factors clashed with a legal factor. The Court had to apply the law, and legally seen there was no alternative but to decide as it did, given the clear language of Art 34(6) of the Protocol. As shall be discussed later, Art 34(6) is a deliberate attempt by the States to limit the Court’s jurisdiction.
Michelot Yogogombaye v. the Republic of Senegal should not remain the last case that was rejected from being heard because a declaration in the sense of Art 34(6) of the Protocol has not been made. In 8 out of 26 cases, the Court has declined jurisdiction for this reason17. All these cases contain the same wording and are of the same length, which is significantly shorter than Michelot Yogogombaye v. the Republic of Senegal, only consisting in 5 pages and getting to the core issue quicker. However, the rejection is always made by decision and not by a registrar’s note, as judge Ouguergouz criticizes after every decision in an identical dissenting opinion.
Apart from article 34(6) of the Protocol, there are three other cases in which the Court has declined its jurisdiction for other legal obstacles. The first of these cases, Association de Juristes d’Afrique pour la Bonne Gouvernance v. Côte d’Ivoire, was rejected because the NGO that had filed the case had no observer status within the AU18. In the second and third case, Youssef Ababou v. Morocco and Ekollo Alexandre v. Cameroon and Nigeria the State parties had neither signed nor ratified the Protocol (the Kingdom of Morocco not even being an AU Member State).
In light of this case law, it can be said that the first active years of the Court accentuated the dramatic impact of Art 34(6) of the Protocol, which blocks access to the Court of individuals and NGOs from a great number of Member States. This forces the Court to decline its jurisdiction against its will, making it engage in some form of reluctant judicial restraint.
2. Challenging Art 34(6) of the Protocol
Art 34(6) of the Protocol has already been widely criticized by the doctrine before the Michelot Yogogombaye v. the Republic of Senegal case; however, it was this case that probably delivered a terrible blow to the standing and reputation of the Court in the eyes of most Africans. After all, it is individuals and NGOs, and not the African Commission, regional intergovernmental organizations, or State parties, who will be the primary beneficiaries and users of the Court. A human rights court is primarily a forum for protecting citizens against the State. While limiting the access of NGOs and individuals to the Court may have been necessary to get States on board, it nevertheless threatens to render the Court virtually meaningless21. However, there are two major decisions of the Court on Art 34(6), in which said article was directly attacked for being inconsistent with the Charter itself: Femi Falana v. African Union22 and Atabong Denis Atemnkeng v. African Union23.
a) Femi Falana v. African Union 2011
The decision in the matter of Femi Falana v. African Union is probably one of the most important decisions of the Court, representing the first direct attack on Art 34(6) of the Protocol. Femi Falana, a Nigerian national, who describes himself as a human rights lawyer, seized the Court with an application against the AU24. Since his efforts to have Nigeria make the declaration have failed, he decided to file an application directly against the AU as a representative of its 54 Member States, asking the Court to find Article 34(6) a violation of his rights to equal treatment and freedom from discrimination, as well as his right to be heard. The key point of the entire case lies in the question of jurisdiction whether the AU, being an intergovernmental organization, can be sued as a Respondent, and how it could be held responsible for the existence of Art 34(6).
Concerning the jurisdiction of the Court, Falana’s submission was straightforward: as a representative of the African people and their governments, the African Union is competent to defend actions brought against the Member States25. It can thus be “sued before the Court because it was the one which enacted and adopted the Protocol, as a corporate community on behalf of its Member States”26. Furthermore, since the African Union is not a Member State of the AU and Art 34(6) of the Protocol only requires States to make the declaration, Art 34(6) of the Protocol does not require the AU to make this declaration. Falana asked the Court to declare “that Art 34(6) of the Protocol […] is illegal, null and void as it is inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter of Human and Peoples’ Rights”27.
The AU as a Respondent denied that the Protocol and the Charter were adopted by the AU, submitting that they were adopted by its Member States, as evidenced in the preamble to the Protocol. The Protocol, talking about a State in Art 34(6), “and the African Union not being a State, cannot ratify the Protocol”. Thus, “the African Union cannot assume obligations of sovereign Member States which have sovereign rights when ratifying the Protocol and making the declaration”28 and cannot be held liable for a State’s failure to ratify the Protocol or to make the declaration of Art 34(6) of the Protocol.
With a majority of seven votes to three, the Court agreed with the Respondent and concluded that it did “not have jurisdiction to hear the Application”29. It admitted that the AU had “a legal personality separate from the legal personality of its Member States” and that it was capable of possessing international rights and duties30. However, it went on stating that “international obligations arising from a treaty cannot be imposed on an international organization, unless it is a party to such a treaty”31. The AU not being party to the Protocol could not be held liable for obligations arising under that Protocol. The mere fact of having a separate legal personality did not imply that it could be considered as a representative of its Member States with regard to obligations that they undertake under the Protocol. Thus, the Court concluded that the “African Union cannot be sued before the Court on behalf of its Member States”32.
The judgment itself seems to represent a fragile compromise arising from a heated discussion between the judges, with five dissenting opinions annexed to it. As judge Ouguergouz puts it in his dissenting opinion, this decision is based on a blurred legal reasoning33 and “raises more questions than it resolves”34. The issue being rather simple, the Court seems to have lost itself in a complicated legal reasoning, making irrelevant statements and assertions that cause confusion.
It is useful to first look at the dissenting opinions of the judges Mutsinzi and Ouguergouz, which give a clear explanation of what exactly is confusing in the majority decision. The judges agree with the result but dissent on the legal reasoning. Judge Ouguergouz points out that the case had little to do with Art 34(6) itself. Instead, the question of jurisdiction was rather evident:
“The African Union could only be brought before the Court to answer for its own conduct. For that to happen, however it would be necessary for it to be allowed to become a party to the Protocol […] The Application has been filed against an entity other than a State having ratified the Protocol [… and thus] falls outside the jurisdiction of the Court. That was actually all what the Court needed to state from the outset to reject Mr Falana’s Application”35.
He heavily criticized many of the points raised by the Court, which add nothing to the legal reasoning but, on the contrary, blur it; so for instance the assertion that the African Union has a separate legal personality and does not act as a representative of its Members36. For judge Ouguergouz, the issue is so evident that the Court would not even have needed to intervene, its jurisdiction manifestly lacking37. In general, these two judges seem to be personally willing to engage in the protection of human rights, but are also concerned about a correct application of the law in order to preserve the credibility of the Court by not expanding its jurisdiction. This is evidenced by the words of judge Ouguergouz himself: “Same as Mr. Falana, I am in favour of the automatic access to the Court by individuals and non-governmental organizations; it is my view however that it is a matter that comes within the exclusive jurisdiction of Member States of the African Union”38. Therefore, these judges reluctantly decide to exercise judicial restraint.
However, there is a reason for this confusing decision of the majority, and it becomes clear when the dissenting opinions of the other judges are examined. The opinion of the judges Sofia Akuffo, Bernard Ngoepe and Elsie Thompson is diametrically opposed to the conclusion of the Court and represents an extremely human rights-activist approach. These three judges seem to have been so keen to declare Art 34(6) of the Protocol inconsistent with the Charter and to engage in the protection of human rights on the African Continent that they simply set aside the formal impediment by recurring to a legally flawed argument.
1 Heyns, Christof (2004), “The African Regional Human Rights System: The African Charter”, in: 108 Penn St. L. Rev. 679 2003-2004 (pp. 679-702), p. 701.
2 Odinkalu, Anselm Chidi (2001), “Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social, and Cultural Rights Under the African Charter on Human and Peoples' Rights”, in: Human Rights Quarterly, Vol. 23 No. 2, May 2001 (pp. 327-369) (The Johns Hopkins University Press), p. 330.
3 Okere, Obinna (1984), “The Protection of Human Rights in Africa and the African Charter on Human and Peoples'Rights: A Comparative Analysis with the European and American Systems”, in: Human Rights Quarterly, Vol. 6 No. 2. May 1984 (pp. 141-159) (The Johns Hopkins University Press), p. 145.
4 These differences include most importantly the entrenchment of “peoples’” rights, the correlation of rights with duties and some important differences concerning family rights. For a detailed analysis, see Okere (1984), p. 152 ff and Odinkalu (2001), p. 344.
5 Mutua, Makau (1999), “The African Human Rights Court: A Two-Legged Stool?”, in: Human Rights Quarterly, Vol. 21 No. 2, May 1999 (pp. 342-363) (The Johns Hopkins University Press), p. 345.
6 Heyns (2004), p. 686.
7 Mutua (1999), p. 345 , as to the reasons see Hansungule, Michelo (2009), “African courts and the African Commission on Human and Peoples’ Rights”, in: “Human Rights in Africa- Legal Perspectives on their Protection and Promotion” (p. 232 ff), eds. A. Bösl and J. Diescho (Windhoek: Macmillan), p. 250.
8 Hansungule (2009), p. 269.
9 Mutua (1999), p. 344.
10 http://www.african-court.org/en/index.php/about-the-court/brief-history (Accessed: 18.5.2014).
11 Mutua (1999), p. 362.
12 Judgment on Application 001/2008 in the matter of Michelot Yogogombaye v. the Republic of Senegal (15. Dec 2009).
13 Article 5(3) [Access to the Court]: The Court may entitle relevant Non Governmental organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.
14 Article 34(6) [Ratification]: At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.
15 Those countries are Burkina Faso, Ghana, Malawi, Mali, Rwanda, Tanzania and Côte d’Ivoire.
16 Michelot Yogogombaye v. the Republic of Senegal , paras. 36-37.
17 These other 7 cases are the following: Judgment on Application 002/2011 in the matter of Soufiane Ababou v. Peoples’ Democratic Republic of Algeria (16. June 2011), Decision on Application 005/2011 in the matter of Daniel Amare and Mulugete Amare v. Republic of Mozambique and Mozambique Airlines (16. June 2011), Decision on Application 012/2011 in the matter of National Convention of Teachers Trade Union v. Republic of Gabon (15. Dec 2011), Decision on Application 002/2012 in the matter of Delta International Investments SA, Mr. AGL de Lange and Mrs. M de Lange v. Republic of South Africa (30. March 2012), Decision on Application 004/2012 in the matter of Emmanuel Joseph Uko and others v. Republic of South Africa (30. March 2012), Decision on Application 005/2012 in the matter of Amir Adam Timan v. Republic of Sudan (30 March 2012), Decision on Application 007/2012 in the matter of Baghdadi Ali Mahmoudi v. Republic of Tunisia (26. June 2012). It is particularly remarkable that even bigger countries such as South Africa, normally very advanced in human rights issues, have not made said declaration.
18 Decision on Application 006/2011 in the matter of Association Juristes d’Afrique pour la Bonne Gouvernance v. Republic of Côte d’Ivoire (16. June 2011), para. 5.
19 Decision on Application 007/2011 in the matter of Youssef Ababou v. Kingdom of Morocco (2. Sep 2011).
20 Decision on Application 008/2011 in the matter of Ekollo Moundi Alexandre v. Republic of Cameroon and Federal Republic of Nigeria (23. Sep 2011).
21 Mutua (1999), p. 349.
22 Judgment on Application 001/2011 in the matter of Femi Falana v. African Union (26. June 2012).
23 Judgment on Application 014/2011 in the matter of Atabong Denis Atemnkeng v. African Union (15. March 2013).
24 Femi Falana v. African Union, para. 1.
25 Ibid para. 25.
26 Ibid para. 64.
27 Ibid para. 40.
28 Ibid para. 65.
29 Ibid para. 74.
30 Ibid para. 68.
31 Ibid paras. 69-70.
32 Ibid paras. 71-72.
33 Ibid, Dissenting opinion of judge Ouguergouz, para. 30.
34 Ibid, Dissenting opinion of judge Ouguergouz, para. 34.
35 Ibid, Dissenting opinion of judge Ouguergouz, paras. 32-33. In order to argue that an intergovernmental organization such as the AU cannot be sued before the Court without being party to its Protocol, he puts forward the following argument: “The only international organization which might, in the near future, be a party before a Court in a matter regarding human rights violations is the European Union; talks are indeed underway to allow the European Union to accede to the European Convention on Human Rights and thus be subject to applications before the European Court of Human Rights” (para. 11).
36 Ibid, Dissenting opinion of judge Ouguergouz, para. 29-30.
37 Ibid, Dissenting opinion of judge Ouguergouz, para. 3: “In all cases where the jurisdiction […] of the Court is manifestly lacking, I am indeed of the opinion that the Court should not proceed with the judicial consideration […]; such application should rather be processed administratively and rejected de plano through a simple letter from the Registrar”.
38 Ibid, Dissenting opinion of judge Ouguergouz, para. 37.