Human Rights Protection on the African Continent: An Elusive Target or an Unwelcome Development?

The end of the colonial rule in the 1960s gave the people of Africa renewed hope for a better life. The formation of the inter-state Organization of African Unity (OAU), with the objective of improving the lot of the people of Africa, added momentum to this renewed hope. At last African leaders were coming together to deal with issues that affected the continent.

The intent of African leaders to make Africa a better place in which to live was confirmed by an apparent recognition of, and respect for, human rights.  To ensure that these rights were respected and protected, the African Charter on Human and Peoples’ Rights (the Charter) was adopted at Banjul, The Gambia, on 27 June 1981.  However, the Charter only came into operation in 1986 — five long years after its adoption.   The delay apparently was caused by the need to deposit the requisite number of instruments of ratification.    This, it could be argued, was the first sign that the enthusiasm shown by the African leaders when adopting the Charter was not to translate into speedy implementation.  It was a sign of things to come.

In November 1987, the African Commission on Human and People’s Rights (the Commission) was established. Its mandate was three-fold: protection of human rights, promotion of human rights, and interpretation of the Charter.  This Commission, however, had a significant weakness: it could not take decisive action without the endorsement of the Assembly of the Heads of State and Government (the Assembly).   The Assembly, derogatively also called “the old boys’ club”, had the authority to accept or reject the recommendations of the Commission.  The ineffectiveness and/or reluctance of the Assembly to deal with human rights violations on the continent is well encapsulated in the adage “watch me kill my people and I will watch you kill yours”. 

In 2000 the Assembly was given a facelift and the OAU gave way to the African Union (AU).  In 2004, the Protocol to the African Charter on the Establishment of an African Court on Human and People’s Rights was adopted.   At last, Africans would have a court that would deal with human rights violations.   Moreover, the Constitutive Act of the AU also included provision for the establishment of the Pan African Parliament (PAP) and the African Court of Justice (ACJ).  The ACJ would settle disputes between state parties. There was now an expectation on the continent that an individual or individuals experiencing human rights violations had a court to which they had recourse, as did a state that had a grievance against another.

Despite the adoption of these progressive measures, however, not much has changed on the African continent.  Until today the African Court on Human and People’s Rights   exists largely on paper, even though the 11 judges were appointed a year ago on 2 July 2006. The court has no courthouse (although one option was that it would occupy the Rwanda Tribunal offices in Arusha, Tanzania), and no cases on the roll. This is not because the judges are unwilling to do their work or that there are no complaints of human rights violations to be lodged.  It is simply because there are no finances to operationalise the court.

The most recent development in the quest for justice on the continent is the merger of the African Court on Human and People’s Rights and the African Court of Justice.  The result of this new arrangement is that the process will have to start afresh.  It will be necessary to renegotiate a new protocol and abrogate the adopted one in order to integrate the two courts. To that end, a new legal instrument has been drafted, which is intended to regulate the African Union Court of Justice, as the court will be known, once it is established.

This draft legal instrument was considered during the Executive Council of the AU during its 9th Session held in Banjul, The Gambia, from 25 to 29 June 2006. A remarkable aspect of the draft instrument is that under the proposed merged court, locus standi (the right to lodge a case with the court) has been significantly broadened to include NGOs and individuals and the AU or its organs. Under the Protocol establishing the African Court on Human and Peoples’ Rights, locus standi was severely restricted by the requirement of a state having to consent to its citizens lodging cases against it. So far only two states have ever given such consent, which is indicative of the greater problem of lack of political will on the continent.

In the meantime, no AU structure protects the human rights of the peoples of the continent outside their domestic systems, where these exist, and to the extent they are not manipulated. The delay in the legal redress of infringements of human rights and fundamental freedoms for the peoples of Africa may still be protracted as their leaders seem to care more for the provision of arms and luxury vehicles than the protection of their people’s rights. How long they will have to live on hope alone remains to be seen. If the hope that was created in 1981 with the adoption of the African Charter on Human and Peoples’ Rights dissipates completely, self-help may eventually take over.