Just as efforts to build a pan-African human rights system appear set to culminate in the establishment of a human rights court for the continent, a proposal has been made which would make the court irrelevant, write AllAfrica guest columnists Chidi Odinkalu and Nobuntu Mbelle.
The African Union (AU) Summit in Sharm-el-Sheikh, Egypt at the end of this month must act to prevent the emasculation of the pan-African human rights system that has been laboriously established over the past quarter century.
Just as the system is to be completed by the establishment of a fully-fledged African Court of Justice and Human Rights, a proposal is on the table that will effectively block access to the new court for individual victims and communities or organizations acting on their behalf. This proposal will make the court irrelevant and should be changed.
That Africa needs this court is not in doubt. In many states, national laws are outdated, non-existent or inadequate; courts are ineffective or inaccessible; and public prosecutions have become too politicized or weakened by self-indulgent politicians, allowing African governments to avoid their responsibility to protect all persons within their territories.
African governments agreed in 1998 to create an African Court on Human and Peoples' Rights. Four years later, when the AU was formed, its Constitutive Act additionally created a Court of Justice of the AU. Together, the idea of these two courts gave initial credibility to the suggestion that African governments actually wanted to end impunity and make justice accessible to all.
The establishment of the AU promised a new era in which African governments would no longer be indifferent to how Africa's rulers behaved around the continent. The AU committed itself to uphold human rights and democratic principles, respect the rule of law and end impunity for atrocities on the continent. These commitments are fundamental to its Constitutive Act, to the African Peer Review Mechanism and to the New Partnership for Africa's Development (NEPAD).
In June 2004, under the leadership of Nigeria's then President, Olusegun Obasanjo, African governments agreed to merge the two courts into one institution. They argued that a merger would assure adequate resources to fund an effective continental court. In April this year, after four years of negotiations, African justice ministers agreed to the text of a single legal instrument to create an African Court of Justice and Human Rights.
At their upcoming Summit, African heads of state and government will formally adopt the instrument, thus establishing this new court. However, it has design flaws similar to those that have made it impossible for the African Court on Human and Peoples' Rights, established a decade ago, to receive any case to date.
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The justice ministers have refused to give individuals the right to sue states directly before the new, merged court. Only African governments, regional institutions like the AU (or third parties under conditions to be determined and with the consent of the state to be sued) can bring cases against states for the court to consider. Before an individual can bring a case, a government must first file a formal declaration with the AU saying it does not mind being sued.
African leaders know their states will not sue one another for human rights violations or for election-rigging. By denying individual victims access to the new court, governments will close an avenue through which atrocities might be addressed, effectively rendering the court still-born.
African governments can still do something about this: at their forthcoming summit, they can decide to grant all victims of human rights violations in Africa access to the new court. Governments which disagree can opt out or to decide to join later.
Africa is in urgent need of a court that will strengthen rather than diminish the accountability of governments. In Sharm-El-Sheikh, those governments have a golden opportunity to make this possible.
Odinkalu is senior legal officer, Open Society Justice Initiative; Mbelle co-ordinates the Coalition for the African Court on Human and Peoples' Rights.
