Born in 1998 with the signing of the Additional Protocol to the African Charter on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights has been operational since 2006. Its main mission is to protect human rights on the continent.
But after more than a decade of activity, it is clear that it is far from the account. The news of African countries remains marked by the abundance of human rights violations. What are the reasons for the inefficiency of this Court?
Absence of a real political will
In 1981, when the African Charter on Human Rights was adopted, States favoured the amicable settlement of human rights violations by setting up only a human rights commission. But, the observation of its shortcomings will lead to the creation of a jurisdiction, in this case the African Court of Human and Peoples’ Rights. It must be said that the process of his birth was so long and difficult that one cannot help doubting the true will of the States.
Did they really want this Court? Did not they just want to look good by creating it? Subsequent facts seem, in any case, to confirm the absence of a real will on their part. Of the 52 States Parties to the African Charter, only 30 States have ratified the Protocol and only 8 have made the declaration accepting the jurisdiction of the Court to receive individual petitions. The Court created to protect human rights on the continent is therefore deprived of jurisdiction to receive applications for alleged human rights violations by the majority of citizens of African Union (AU) member states.
Despite repeated reminders, some states seem unwilling to take the step while others are moving backwards. The case of Rwanda is quite telling, this country signed the Charter in 1998 and ratified it in 2003. After submitting in 2013 the declaration giving its citizens the possibility to directly refer the matter to the Court, by a notification of 29 February 2016 it announced its intention to withdraw declaration.
Clearly, characterized for the most part by dictatorial and authoritarian political regimes, states perceive the Court as a new forum for human rights defenders and a new source of “embarrassment” for them. In reality, without the involvement of NGOs and the influence of the global context, this Court would certainly not have emerged.
Institutional weaknesses by design
Without openly opposing the creation of the Court, it seems that African states have opted for more discreet strategies by weakening the founding text. The last method is indeed less expensive in terms of image than the first. Thus, they will restrict access to the Court to individuals and NGOs. The latter can only seize it directly if and only if the State concerned has made the declaration authorizing the Court to receive the individual petitions.
Human rights are by definition the rights of individuals, it is clear that by this requirement, the States give with one hand and resume the other. Also, the absence of coercive measures to ensure the execution of the Court’s judgments will prevent it from fully playing its role of protecting human rights. Indeed, the voluntarism of States enshrined in Article 30 of the Protocol cannot constitute a sufficient guarantee in this respect.
The Protocol entrusts the follow-up of the execution of the judgments of the Court to a political body, in this case the Executive Council of the AU. The Court cannot then ensure compliance with its own decisions. This is the example of the Ivorian state which, condemned since 18 November 2016 by the Court to reform its electoral structure to bring it into line with international conventions, only committed two years later to take measures. Going in this direction we can also mention Mali which has not yet taken any action following the judgment of May 11, 2018 in which the Court asked him to amend its law on marriage which sets the age of marriage at 16 years for women.
Lack of human and financial resources
Not really desired, the Court seems to be left behind. The human and financial resources available to it are largely inadequate. Apart from the full-time President of the Court, who lives in the place of the seat of the Court, the other ten judges work part-time while the number of cases before the Court continues to grow.
This situation results in delays in the finalization of certain cases. As for the Registry, which was reformed in 2012, not all posts could be filled immediately because of insufficient funds. According to the same report and that of 2016 which is the very last one, the current premises are too narrow to house the staff as well as the activities of the Court.
All in all, if the creation of the African Court to raise hopes on the continent, it must unfortunately be admitted that its inefficiency seems to have been programmed. It is above all a question of whether the idea of the creation of this Court has been carefully thought out. It was already condemned to disappear with the merger announced since 2004 with the AU Court of Justice, when it had not started its activity.