East Africa: We Must Fight Our Way Back to the African Court for Even More Justice

Curtains fell on 2020 with an important message from the president of the African Court on Peoples' and Human Rights, Sylvain Oree. Talking to the press, the eminent jurist said that it was a 'misjudgement' for some African countries to withdraw a certain declaration which allows their private citizens and non-governmental organisations to access the court.

Justice Oree made clear his intention to engage with the said countries with a view to convincing them of the importance of keeping their commitment to the role of the court and to help it deliver its intended mandate. The countries in question are Tanzania, Rwanda, Benin, and Cote d'Ivoire. I wish him well but doubt he will be listened to.

After protracted deliberations back in the 1970s, members of the Organisation of African Unity (OAU) decided to set up this court whose remit would include, among many other matters, issues brought to its attention by private citizens and NGOs.

By the very nature of the court it was clear from the get-go that many complainants would naturally be complaining about State intervention in their lives and activities.

However, it was made clear that for any individual or NGO to go to the African Court, he, she or it must first have exhausted local remedies.

After the withdrawal referred to above, even after one has cleared processes in the municipal courts, the African Court will remain inaccessible.

It is a sad state of affairs because it speaks to the unwillingness of African states to allow those who reside under their jurisdictions to have recourse to supranational adjudication when they feel their states have transgressed against their rights.

This is not a 'misjudgement', or a 'misunderstanding' as President Oree avers; rather it is a deliberate, conscious and barefaced action by our states calculated to bar their citizens from any remedy they (the states) may have refused them in their own countries.

It is like this: These states, by withdrawing from their international obligations, are in effect saying to their citizens: 'Here is the deal. If you have anything you want to complain about in this country, go to our courts, which are your courts, if you are a true patriot. If you still feel aggrieved after you have been through all our courts, too bad, but that is the end of the road for you.

We know very well how much our judicial officers, including judges, think they are part of the Executive, and how even the most conscientious judge may feel obligated to the head of state and his juniors.

The theories of 'separation of powers' will be taught in all the schools of the realm till the cows come home, but the feeling that those who own the police are the real state never goes away.

Where you have a Judiciary that has been beaten into accepting that it is only an appendage of the Executive, and Parliament is even more pliant and meek, those in the Executive will be justified in believing that they are above the law and act accordingly.

It was in the spirit of pan-Africanism that the African Court was set up to try and craft a mechanism that would help our countries synthesise their judicial preoccupations with a view to ensuring a governance architecture based on the respect for the most fundamental human rights.

Yet, as is common in many an undertaking we have attempted, we always reveal ourselves to be seriously schizophrenic, taking away with the left hand what the right hand has established, wanting our sugar to be sour, and willing our fire not to burn.

Most confounding among the withdrawing state is Tanzania, the host country, which, one would have thought --if only for courteous diplomacy alone--would have set the example of how to nurture pan-African institutions. It is most embarrassing that Tanzania is reneging on many fundamental principles that presided at the fashioning of our nationhood.

What we need is more justice, not less. Even if we had somehow created a proliferation of institutions keeping guard over the state and the way it deals with its citizens we should never feel that judicial oversight over the state is too much, to the extent that we should be trying to alleviate the onus placed on the state to justify its every act.

The state, that is the beast that feeds on the misery of its people, whose primary concern is for its own perpetuation and whose acts will be directed toward that basic goal, all other activities being peripheral and subsidiary. All efforts that can be deployed to rein in the appetites of the state should be welcomed and congratulated, not thwarted.

All the major sources of people's and human rights violations flow from the state, and all the main sources of corruption too.

A government that actively seeks to do away with external, especially supranational, invigilator is in the hands of elements wanting to keep people in bondage.

Ulimwengu is now on YouTube via jeneralionline tv.

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