Following the 30th anniversary of the African Charter on Human and Peoples’ Rights, WEBSTER ZAMBARA asks whether progress has been made in promoting and protecting human rights on the continent.
In late October, the African Court of Human and Peoples’ Rights held a sensitisation seminar in Johannesburg. The aim of this event was to make South Africans, as well as institutions and organisations more broadly, aware of the existence of the court, its role and mandate, and its track record of effectiveness. This is indeed a peculiar situation. Under normal circumstances, courts do not often work proactively to raise their public profile – and effectively solicit new work. But in this case the judges of the African Court have good reason for taking this outreach route: between 2008 and early 2011, the court received only one case, despite a myriad of human rights violations across the continent.
The seminar took place just days after the 30th anniversary of the African Charter on Human and Peoples’ Rights (ACHPR) on 21 October, known as Africa Human Rights Day. The Organisation of African Unity (OAU), predecessor to the African Union, adopted the charter in 1986 as a solemn commitment by African leaders to promote and protect human rights. It has been ratified by all African states except Morocco, which is not a member of the AU.
The African Charter was developed to guarantee the civil, political, economic, social and cultural rights of people in African state parties, as well as the group rights of minorities. Pursuant to this mandate, the African Commission on Human and Peoples’ Rights was established in Banjul, Gambia to monitor compliance with the Charter.
Africa has witnessed decades of human rights violations, from colonisation and the slave trade to war, genocide, oppression and, in the cases of South Africa and Namibia, apartheid. More recent crises include conflict and famine in the Horn of Africa, and political turmoil in Libya and Egypt. The Libyan ‘revolution’ brought horrendous human rights violations, many perpetrated by the outgoing regime of Muammar Gaddafi – who was captured and killed just before Africa Human Rights Day.
Despite some success in protecting and promoting human rights on the continent, the Africa Commission’s work has often been inadequate and ineffective. This is partly due to its quasi-judicial approach, through which it is limited to reliance on processes of negotiation and conciliation. Further, many state parties are reluctant to comply with the Commission’s obligations and recommendations. These structural weaknesses compelled African leaders to adopt the Protocol to the ACHPR, which established the African Court on Human and Peoples’ Rights in 1998 in order to enforce the Commission’s protection mandate, and bringing renewed hopes for improved human rights protection.
Yet the lack of seriousness and commitment with which many African leaders have embraced this human rights regime and institutions is perhaps best illustrated by serious delays in electing and appointing judges to the Court. The first judges were only appointed in 2006, and two more years of preparation were required before the Court was ready to receive cases at its seat in Arusha, Tanzania. Despite the high proportion of women among victims of human rights abuses in Africa, there are only two female judges among the eleven appointed to the Court.
Unlike the African Charter, which has been ratified by 53 of the 54 African states, the African Court Protocol has only been ratified by 26 states, including South Africa. Ratification is necessary for state parties to come into the court’s jurisdiction, and for enforcing compliance with its judgments, but low numbers speak to a lack of political will among many governments. The Court’s weaknesses do not end here. Access by individuals and non-governmental organisations (NGOs) is considerably limited by article 5(3) and 34(6) of the African Court Protocol, which prevents the lodging of human rights petitions unless the state that is the subject of the suit has both ratified the protocol and made a special declaration accepting the competence of the Court to hear cases of this kind. Put more simply, a state must grant individuals and NGO access to the Court, thereby opening itself up to law suits. Perhaps unsurprisingly, only five countries – Burkina Faso, Ghana, Mali, Malawi and Tanzania – have made this declaration.
Thirty years of life is long enough to define the character of a person or an institution. Celebrating the ACHPR and the establishment of the Court are important milestones for Africa in ensuring greater protection for human rights, which can act as a catalyst for sustainable peace and development. However, the current human rights architecture and institutions remain works in progress, and are quickly overwhelmed by events such as the political instability and change seen in North Africa this year. It is also disappointing that many leaders still have not ratified the African Court Protocol, and that direct access for citizens remains extremely limited. The doctrine of ‘African solutions to African problems’ will only carry weight when Africa begins to respect its own institutions, both in word and practice.
Webster Zambara is a senior project leader for the Southern Africa desk at the IJR.