Governments suspicious of African Court



African Court on Human  and People’s Rights judge Justice Gerard Niyungeko  (3)
African Court on Human and People’s Rights judge Justice Gerard Niyungeko

Bongiwe Zihlangu

SOME African governments are suspicious of the African Court on Human and People’s Rights and remain reluctant to become fully accredited as this would allow their citizens and civic groups direct access to the court.

Since its launch in November 2006, only 28 of the 54 African Union (AU) members, among them Lesotho, have endorsed the Tanzania-based court. However, a paltry seven nations— Ivory Coast, Burkina Faso, Ghana, Mali, Rwanda, Malawi and Tanzania — have signed the Declaration of Article 34 (6) of the Protocol, which allows individuals and Non-Governmental Organisations (NGOs) to approach the Court directly, but only after exhausting all domestic remedies.

Established to complement the protective mandate of the African Commission on Human and People’s Rights, the Court however, only appears to receive token support from most governments if the number of signatories to Article 34 (6) are to be used as a barometer.

Addressing a sensitisation seminar on the Court in Maseru this week, Justice Gerard Niyungeko of Burundi said this reluctance was due to a host of factors.

Justice Niyungeko, who was President of the Court from 2006-2012, told delegates who included Law Society of Lesotho President Advocate Shale Shale, Law, Constitutional Affairs and Human Rights Minister Motlalentoa Letšosa, judges of the Court Duncan Tambala of Malawi and Angelo Matusse of Mozambique, Ombudsman Advocate Leshele Thoahlane (King’s Counsel) and retired Lesotho judge Justice Kelello Guni: “We have visited countries where we were told, in some instances, about this fear of risking an avalanche of cases that could destabilise political systems.

“We have also been told, in some countries, that there are fears of financial implications of the outcome of judgments, which could affect countries’ economies.

“Human rights issues are also politically sensitive hence the reluctance to abdicate sovereignty. African States are very much attached to their sovereignty, having mainly attained independence over the last 50 years.”

Justice Niyungeko further noted because most NGOs largely receive funding from Western powers whose agenda is viewed by some governments not to be in the best interest of Africa, “countries are reluctant to post their declarations to allow this direct access to the court”.

He added: “However, our line of argument, even in light of these concerns, is that this Court is the last remedy once all local legal recourses have been sought and failed.

“We try to mitigate their fears by assuring them the likelihood of an avalanche of cases is not possible because there are legal procedures to be followed, with the African Court as the very last resort.”

In his keynote address, Minister Letšosa said although Lesotho ratified the protocol establishing the Court, “we have not yet posted a declaration allowing individuals and NGOs direct access to it…and are consulting relevant stakeholders so that we can make an informed decision on this issue”.

The government, Mr Letšosa further noted, was “committed to continue working towards a conducive human rights environment demonstrating a democratic society”.

Mr Letšosa emphasised that government respected its citizens and would continue, through civic education “to enlighten them about their rights and obligations in a democracy”.

He added: “We will create avenues for citizens’ engagement with each other and their elected leaders, while at the same time engaging the media and independent civil society in promoting human and people’s rights.”

The minister further highlighted that in a bid to ensure the enjoyment of human rights by all, government had since developed the Human Rights Commission Bill.

“The Bill has been awarded a certificate of approval by the Attorney General’s chamber and will be presented to cabinet soon,” Mr Letšosa said.

“The government found it befitting also, to take measures to develop a National Human Rights Policy.”

The Policy, he said, would serve as “a guiding tool for the fulfilment of human rights obligations in Lesotho.

“The policy will need extensive consultations and active collaboration between government and civil society…and will be a tool for evaluating the country’s vision on human rights and evaluating our performance with regard to our international human rights obligations.”

The minister further said institutions such as the Ombudsman, Directorate on Corruption and Economic Offences (DCEO), Police Complaints Authority (PCA) and Police Inspectorate were further proof of government’s respect for human rights.

“Human rights belong equally to each one of us and bind us together as a community with the same ideals and values. Inherent human dignity, non-discrimination, equality and fairness apply to everyone and at all times because we belong to one family—that of humankind,” Mr Letšosa said.

Meanwhile, Advocate Shale said Monday’s seminar sought to raise public awareness about the African Court.

“However, most importantly, it is to encourage the Government of Lesotho to deposit a declaration under Article 34 (6) of the Protocol establishing the Court in order to enable individuals and NGOs direct access to the Court. It is also to sensitise prospective applicants on how to access the Court.”

Adv Shale was also quick to question Lesotho’s reluctance to post the declaration despite ratifying the Protocol in October 2003.

“The question which immediately comes to mind then is: why has our country not done so for twelve years after making the good move of ratifying the Protocol on 28 October 2003?” Adv Shale said.

“This sensitisation seminar comes at an opportune moment for Lesotho, a time when many human rights scholars and activists are faced with both theoretical and practical questions regarding the protection of human rights, and the ability of international mechanisms to solve national ailments.”


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