THOUGH the Arusha-based African Court on Human and Peoples’ Rights has recorded a number of successes, there have also been some failures during the Court’s operations.
The Court’s Registrar, Dr. Robert Eno, reveals that the Court has not been able to dispense justice as speedily as it would have wanted to.
He says that the average time for finalising an Application ranges from 24 to 36 months, and there is a growing backlog of cases.
The Registrar says, the delay may be due to a number of factors, some of them independent from the Court, but justice delayed is justice denied.
“With the current trend, it will take at least five years to dispose of the backlog of cases, leave alone the new ones,” the Registrar says.
He also points out that so far there is no searchable online case law database and in addition to that, less than 40 percent of Judgments are translated into all AU working languages – the jurisprudence of the Court is therefore not accessible to all domestic courts and African citizens in all AU Member States.
Dr Eno also says that there has been very limited use of Amicable Settlement procedure as for the past 15 years, amicable settlements have only been proposed in three percent of Applications and zero percent of Applications have been resolved amicably.
He points out perhaps the greatest failure of the Court, which goes to the very reason why it was established, and which he characterises as ‘collective failure’, is the failure to ‘complement’ the protective mandate of the African Commission.
The Registrar quotes Article 2 of the Protocol, which states clearly that the African Court was established to complement the protective mandate of the African Commission.
Unfortunately, he says 15 years after both the Commission and the Court are yet to agree on the meaning of complementarity, let alone putting it into practice. So far, within the framework of that complementarity, the Court has transferred four cases to the Commission, which the latter refused to consider, while the Commission has seized the Court with three cases.
The Court struck out one of the cases for want of prosecution and ruled in favour of the Commission in respect of the other two.
“But the inability of the two organs to agree on the meaning of complementarity and put in place a proper mechanism for its enforcement deprives Africans of the benefits envisaged by the drafters of the Protocol,” the Registrar says.
Dr Eno says that the high expectation that the two-tier arrangement will further assure individual access to the Court through the Commission for citizens of States which have not allowed such an access by a declaration has thus been dashed. According to him, one can also argue that this challenge may have emanated from the Protocol itself.
He points out that to establish an effective two-tier continental human rights system begins from defining the mode of interaction between the two bodies.
“The Protocol does not define complementarity. This may have been done deliberately to allow Judges and Commissioners to exercise freedom in deciding how to define and set out a suitable method of cooperation between them, which responds to human rights challenges facing the continent,” he says.
However, the Registrar says, in their attempt to operationalize complementarity, both the Commission and the Court have adopted a different understanding of the meaning of complementarity envisaged in the Protocol.
The Commission’s understanding of complementarity is that as a judicial body that makes legally binding judgments, the Court has to take appropriate measures to ensure Commission recommendations on complaints against States that have failed to comply with such recommendations are implemented.
Dr Enor says that it is not the understanding of the Commission that when it refers such decisions to the Court in which recommendations simply require implementation by the State concerned, the Court would re-open the matter with a view to consider the case de novo (afresh). According to the Commission, the role of the Court was to facilitate implementation of the Commission’s recommendations or decisions by making them legally binding.
The Court on the other hand, according to the Registrar, had a different view. The Court believes that being a judicial body, it will abdicate its judicial responsibility if it were simply to receive the recommendations of the Commission and ‘rubber stamp’ them for implementation.
He says that the Court argued that it is within its mandate and absolute discretion to consider, de novo, every matter brought by any party that appears before it, including the Commission, pursuant to the provisions of the Protocol.
“If the Court does not consider jurisdiction and admissibility afresh, it would not be acting in conformity with the Protocol,” says the Registrar of the Court.
Dr Eno points out, however, that notwithstanding such differences of understanding, the two organs have nonetheless agreed to give effect to the principle of complementarity envisaged in Article 2 of the Protocol.
To this end, he says, the two organs would have reflected in their respective Rules how cases should be filed by the Commission before the Court and transferred by the Court to the Commission.
They also instituted joint meetings to discuss ways to strengthen their relationship and enhance the protection of human rights on the continent.
The Registrar points out that the failures and challenges he analysed may give the impression that all is lost, but opportunities abound to allow the African Court to take its rightful place and play its rightful role within the African human rights system.
According to him, they also contribute fully to the socio-economic and political development of the continent, and deliver the vision of an Africa with a viable human rights culture and create the Africa “we want by 2063.”
He points out that the current AU Institutional Reform initiative is a great opportunity to have a holistic and fresh rethink and overhaul of the African human rights architecture, to ensure that the enabling instruments and the supervisory mechanisms established respond to the human rights challenges.
Dr Eno says the Court, like many other organs and institutions of the Union, operates within a more open and democratic dispensation, where human rights are at the forefront of bilateral as well as multilateral relations.
“The question of human rights is now firmly embedded in the African Union discourse,” he says, adding that the Judges are elected in their personal capacity and although are eligible for reelection once, one can say they enjoy some security of tenure to guarantee their independence and integrity of the Court.
He points out also that the Court, albeit with criticisms from some States, still enjoys support from many Member States of the Union and a large sector of human rights stakeholders on the continent.
In spite of the numerous challenges facing the Court in the discharge of its mandate, the Registrar says that the overwhelming desire for a strong and independent Court provides the perfect opportunity for the emergence of an African Court that meets the aspirations of the people.
To this end, he concludes, the current AU reform initiatives should ensure reexamination of the African human rights system to come up with a human rights architecture that will respond to the challenges of the times and guarantee an Africa with a viable human rights culture and the Africa we want by 2063.