by the Vice President of the African Court on Human and Peoples’
the Honorable Justice Sophia A B Akuffo
on the occasion of the Opening of the 49th Ordinary Session
of the African Commission on Human and Peoples’ Right 28th April 2011, Banjul, The Gambia
Excellency… the Rep. of the Attorney General of the Republic of
the Gambia Mrs. Ayssatu Graham
Honorable Reine Alapini-Gansou, Chairperson of the African Commission,
Honorable ministers of the African Commission on Human and Peoples’ Rights
Excellency Mrs. Julia D Joiner, Commissioner, Political Affairs, Commission of the African Union,
Honorable ministers of the Government of the Republic of the Gambia,
Excellencies Members of the Diplomatic and Consular Corps,
Distinguished Delegates of African Union Member States,
Honorable representatives of African Union Organs,
Distinguished Representatives on International Organizations,
Distinguished Representatives of National Human Rights Institutions,
Distinguished Representatives of Non-governmental Organizations,
Distinguishes Ladies and Gentlemen
I consider it a great honour that I have been invited to speak on this occasion, the 49th Ordinary Session of the African Commission on Human and Peoples’ Rights. That we, the African Court on Human and Peoples’ Rights, continue to be accorded this opportunity to address the Commission and, through you, the entire African human rights family is deeply appreciated and lauded. For this continual opportunity, I must thank you, honorable Chairperson, and all the honorable Commissioners. I also wish to take this opportunity to thank you for your participation in the Continental Conference on the Promotion of the Court, organized by the Court in March this year, in Lilongwe, Malawi. It is also my sincere pleasure to convey very warm greetings from my colleague-Judges of the Court to members of the Commission, as well as all other participants in this 49th Ordinary Session of the Commission.Madam Chairperson
Distinguished Guests, Ladies and Gentlemen
Our relationship is grounded in Statute and our goals are similar –to establish a veritable human rights culture in Africa. Both institutions recognize the importance of working together, and, hence, it is gratifying to note that, between July 2009 and April 2010, the Commission and the Court, in recognition of the symbiotic relationship that the protocol establishing the Court requires of us, met three times to harmonize our rules of Procedure. These meetings not only gave us the opportunity to shape a new human rights paradigm for our beloved Continent, but also enabled us to better understand the challenges facing our two institutions.
Both institutions now have new rules of procedure which not only define their relationship, but more importantly provide a framework within which cases might be referred to or transferred from one institution to another. To that end, the rules of procedure of the two institutions also include issues such as regular meetings of our institutions and their bureaus, transfer and referral of cases between the two institutions, as well as collaboration where there is a request for interpretation of the Charter or request for advisory opinions. One important feature in our rules is the ability to prevent forum shopping. It is my pleasure to inform this gathering that the harmonized Rules of the Court came into effect on 2nd June 2010. As from that date, therefore, the Court stands ready to receive any referrals and or transfers of cases from the Commission. It also stands ready to deal with requests for advisory opinions as well as petitions from individuals and NGOs.
I must stress here that the main source of cases to the Court at this time is the Commission. This is because, the Protocol gives the Commission unlimited access to the Court, whereas individuals and NGOs may only access the Court directly upon the deposit by States of a declaration permitting them to do so. The Court had been ready to receive cases since the adoption of its Interim Rules of Procedure and the recruitment of Registry staff in 2008. With the adoption and entry into force of the new rules of procedure of the Commission, the way is now open for cases to be cases to be referred from the Commission to the Court.
Cases against States that fail to comply with the recommendations of the Commission within the specified period may be referred to the Court immediately; where a state fails to comply with a request to the implement provisional measures, the case may be referred to the Court; and situations/conditions of serious or massive violations shall also be referred to the Court. The Commission has already referred to the Court an application falling under the latter category, regarding the situation in Libya; these scenarios demonstrate the complementarily envisaged in the Protocol- a situation where the Court can step in any event where the powers of the Commission are limited.
The adoption of the rules of the two institutions, in and of itself, is not enough to enhance the protection of human rigs in Africa. Creating a human rights culture requires the active participation of all stakeholders from Member States to the ordinary person on the street. This is why I wish to take this opportunity to invite all those African States, which have not already done so, to ratify the Protocol, and furthermore, make the declaration allowing individuals and NGOs direct access to the Court. By so doing, they demonstrate their commitment not only to the promotion and protection of human rights, but also to building an African where human rights are seen as inseparable components to unity, peace and sustainable development.
Distinguished Guests, Ladies and Gentlemen
The circumstances in which we find ourselves today do not lead to a justifiable conclusion that, in Africa, there is a general commitment to the protection of human and peoples’ rights. Otherwise, how can one explain the fact that, since the adoption of the Protocol in June 1998 (more than twelve years ago), only twenty six (26) of the fifty three (53) Member States of the African Union have ratified it, and only five (5) State Parties to the Protocol (Burkina Faso, Ghana, Malawi, Mali and Tanzania) have made the Declaration under Article 34(6) thereto, allowing individuals and NGOs direct access to the Court. The Court’s case-load is still feather-light because of the low rate of ratification of the Protocol, and the restricted access to the Court by individuals and NGOs, other than to individuals and NGOs from the five States Parties mentioned.
The success of the African Court as a human rights protection mechanism would require a 100% ratification of the Protocol by Member States, as well as their acceptance of the competence of the Court by making the Declaration under Article 34(6) thereof. This ‘universal’ ratification will give the Court the legitimacy it needs to effectively discharge its mandate. It will also demonstrate the commitment of States Parties to the protection of human rights and bring renewed hope to the people of Africa that, perhaps, the protection of human rights is no longer a half-hearted business as usual. Anything short of 100% ratification will limit the jurisdiction of the African Court and the legitimacy of the protection system, as some citizens of Member States would not benefit from the ‘insurance cover’ the Court is established to provide where the remedies available from the Commission are inadequate.
The effective protection of human rights on the continent, therefore requires the involvement of all the key stakeholders, including in particular, the general population, NGOs, National Human Rights Institutions and AU Member States. There is room for everyone, as everyone has a part to play in developing the African Human Rights system.
As we all know, for reasons of political and diplomatic relationships, Members States are loath to bring each other before an international human rights Court or tribunal. Thus, the responsibility for shaping and nurturing a credible human rights system and instructive human rights jurisprudence rests with human rights advocates such as NGOs, Bar Associations and national human rights institutions. The court recognizes the pivotal role of the Commission as the principal source of cases to the Court, and believes that, through the relationship built over the past years, there is enough reason for an assurance that the Commission and the Court will not suffer the fate of other regional human rights systems, where competition rather than cooperation, characterized the initial years of their establishment, to the detriment of their mutual stakeholders.
Happily, other than the harmonization of our Rule of Procedure, in furtherance of the excellent relationship between our institutions, the Court organized from 9-11 March 2011 a Continental Conference on its promotion where the Commission participated. Just prior to this conference, the Bureaus of the Court and the Commission met to discuss, inter alia, complementarity issues and to prepare for their statutory annual meeting which has been scheduled for August this year. These institutionalized and other interactions are laying the foundation for strengthening the complementarity relationship between the two institutions.
Indeed, we are not rivals, but rather, complementary organizations, established to work hand-in-hand to protect human rights. We recognize that the Commission has powers to do things which the Court can never do, and the Court has powers to do things which the Commission has never been able to do. Where one institution’s mandate is limited, the other is expected to up the mantle. In this regard, therefore, the Court looks forward to the Commission forwarding or referring to it more cases, as appropriate, so that binding decisions and specific remedies can be ordered.
In Conclusion, I want to assure the Commission, and all prospective applicants, that we, at the Court, are ready to complement the great efforts that the Commission has made towards our joint mandate of protecting human rights, and that the Court will certainly make use of the Jurisprudence that the Commission has established. I believe that the presence of the Court at this session sends a clear message- that this is a continuation of coordinated and focused collaborative activities between the Court and the Commission aimed at ensuring effective human rights protection.
Consequently, I wish to congratulate the African Commission on Human Peoples’ Rights on its untiring efforts in promoting and protecting human rights on the continent, and to invite Member States of the African Union to work with both the Commission and the Court to construct a culture of human rights in Africa. In this regard, the role of our partners, in particular, NGOs, cannot be overemphasized. Given the sadly high level of illiteracy and the equally high rate of poverty on the continent, most victims of human rights violations will be looking up to you for assistance to vindicate their rights, a challenge that many NGOs have laudably met in their interactions with the Commission. We hope that civil society will continue to work hard to ensure that victims of human rights gain unfettered access to the Court as well.
Finally, on behalf of the African Court on Human and Peoples’ Rights, I wish you all successful and fruitful deliberations during this 49th Ordinary Session of the Commission and, once again, reiterate the Court’s readiness to work with all stakeholders to protect human rights in Africa.
for your attention.