Africa Struggles To Give Meaningful Access To Justice By George Kegoro 07 Apr 2012

Africa is struggling to give effect to various justice institutions that have been established at various levels around the continent. In March 2011, the African Court on Human and Peoples Rights held its first public hearing at its seat in Arusha Tanzania. The case Femi Falana vs. the African Union, concerns the validity of article 34 (6) of the Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights, which denies direct access to the court by nationals of countries that are state parties to the protocol unless their countries have signed a declaration authorising it. The merits of the case itself, although important, are not as critical as the fact that this case, and other recent developments, represents modest steps that may lead to a cautious optimism that the court is finally getting into the imagination of Africans and that it may start doing the important human rights work for which it was established. The background to the Femi Falana case lies in the first case filed before the court in 2008 when a Chadian national resident in Europe sought accountability against Senegal, which has been harbouring former president Hisne Habre, a long-term fugitive of Chadian and international justice. The court, however, declined jurisdiction, citing rule 34(6) which provides that the court can only take up cases filed by state parties and that for an individual to have direct access to the court, the country where the individual comes from needs to have signed a declaration allowing its nationals direct access to the court. As Chad had not signed the declaration, the court could not take up the case. The defeat of Abdoulaye Wade, president of Senegal at the polls, will lead to a change of leadership in Senegal and with it there is hope that the longstanding search for justice against Habre can finally make progress. While the protocol establishing the African court came into force in 1998, it took 10 years for the first case to be brought before the court and even then this was a non-starter. However, there has been a recent surge in the number of cases brought before the court, which now stands at 19. The low level of ratification of the protocol of the court remains the main problem standing in the way of access to the justice that the court promises. Out of the 53 African states that are members of the African Union, only 26 have ratified the treaty on the African court. The hindrance of access by individuals to the court through a requirement that a member state must authorise such access by signing the declaration is also a significant problem for the court. Only Tanzania, Malawi, Ghana, Burkina Faso and Mali have signed the declaration. It has been pointed out that the fear that states have over allowing direct access to the court is largely misplaced. The requirement that parties who come before the court must exhaust local remedies acts as a sieve.

The problems facing the African Court resonate with those facing courts established under the various sub-regional economic cooperations. The SADC Tribunal of Justice has been worst hit: following its decision that declared the eviction of white famers by Zimbabwe as unconstitutional, Zimbabwe pulled out of the Tribunal, whose legitimacy it challenged. Then in 2010 the SADC summit ordered a review of the functions and ... terms of reference of the SADC Tribunal, which has led to the suspension of the operations of the tribunal which currently has only four of 10 judges appointed and does not accept nor hear any cases. The backlash against the tribunal is not dissimilar with the treatment that the East African Court of Justice received following its decision with which Kenya disagreed and which led to an. amendment to the treaty on the court. The forthcoming AU summit in Malawi is expected to advance discussions on a protocol for the establishment of enhanced jurisdiction for the court, particularly the jurisdiction to try crimes under international law. This discussion began the 13th session of the AU Assembly held in Sirte, Libya, which resolved that member states of the AU should not cooperate with the ICC in the arrest and surrender of the Sudanese president, Omar el Bashir, a fugitive of the ICC. The AUs decision was based on its perception of the impact the indictment of President Bashir would have on the peace process pertaining to the conflict in Darfur. The AU also mandated the drafting of a protocol that would lead to the establishment of a criminal court for Africa, in rivalry with the ICC. If the Malawi summit approves the protocol on an extended jurisdiction for the court, this will enter the African human rights system into new and uncharted territory especially in relation to the ICC, which some of the African states are parties to. During a civil society meeting held in Arusha on the sidelines of the hearing of the court and in which the judges of the court also participated, judges from the court noted that it was natural for states to fear courts of law and to seek to control them in as many ways as possible, and that it would not be surprising if African states will in future try to put more controls on the court. The meeting noted that while the African court has prioritised promotional tours around Africa meant to explain the mission of the court and to encourage states that have not done so to ratify the treaty on the court, the court needed to also provide sufficient time for the cases pending before it which need to be heard expeditiously. The days ahead will be interesting to watch in terms of access to justice for the African continent. Mr Kegoro is the Executive Director of the International Commission of Jurists (Kenya Chapter). editor@nairobilawmonthly.com