Billy Ntaote
ARUSHA — Lesotho and other African countries’ failure to make a declaration accepting the competence of the African Court on Human and People’s Rights denies organisations and ordinary citizens the opportunity to seek continental legal recourse where local judicial remedies would have failed, says the court’s former President Justice Niyungeko Gerard.
Lesotho ratified the protocol to the African Charter on Human and People’s Rights (AfCHPR) on the establishment of the African Court on Human and People’s Rights but, like many other African states that have not made declarations, it is denying its citizens access to the court.
Of the 54 African states, only twenty-six countries have ratified the protocol while a mere seven have actually made declarations allowing their citizens access to the court.
This, in essence, means the promotion of human rights in Africa remains a challenge despite the presence of the court as African states continue to stifle people’s rights by denying their citizenry access to the Court.
According to Justice Niyungeko, during a continental media briefing linked to a seminar on the AfCHPR in Arusha, Tanzania on Thursday, it had come to the African Court’s attention that not only Lesotho but several other African states feared that making a declaration accepting the competence of the court would open corridors for “an avalanche of court cases to be brought against them”.
“The states seem to fear that next after they have made the declarations, an avalanche of cases will be brought against them,” Justice Niyungeko said.
Justice Niyungeko was flanked by the current President of the African Court Lady Justice Sophia AB Akuffo and another judge, Justice Ben Kioko.
Of note though, is that in 2011 Lesotho made the sixth Amendment to the Constitution, providing for the established of the Human Rights Commission.
The African Court on Human and People’s Rights is a continental court established by member states of the African Union (AU) to enhance the protection of human and people’s rights in Africa and was established by virtue of Article 1 of the protocol to the AfCHPR.
The protocol was adopted on June 9, 1998 in Burkina Faso and came into force on January 25, 2004. The court started its operations officially in November 2006.
Justice Niyungeko further told the conference that human rights issues are politically sensitive matters that “need to be handled cautiously”.
Justice Niyungeko said AU member states’ decision to ratify and make declarations allowing both civil society groups with observer status to the commission and individuals to lodge cases with the African Court “could also have financial implications on such states”.
“There will be financial implications of the decisions of the court and states would have to pay reparations,” Niyungeko said.
He added: “If we were to say all African states’ citizens were to be said to have a right to education today, there would be serious financial implications to states.”
However, in giving an overview of the court’s system, Justice Niyungeko, who is also the very first president of the African Court, said the court was doing its best to “appeal to member states to ratify and make declaration”.
“Some of the states fear that they will be destabilised by the avalanche of cases that would be brought against them before the court if they both ratified and made declarations on the competence of the court,” Justice Niyungeko said.
Niyungeko further told the conference that human rights issues are politically sensitive matters that “need to be handled cautiously”.
According to article 34 (6), on the ratification of the protocol on the court’s establishment, at the time of the ratification of the protocol or any time thereafter, the state shall make a declaration accepting the competence of the Court to receive cases under article 5 (3) of the protocol.
The protocol goes further to state that the court shall not receive any petition under article 5 (3) involving “a state party which has not made such a declaration”.
Article 5 (3) of the protocol provides the court may entitle relevant NGOs with observer status before the African Commission on Human and People’s Rights, and individuals to “institute cases directly before the court”.
Speaking at a similar media briefing Justice Akuffo said the court has gone out of its way to change from a conservative judicial culture, to lobby AU member states to ratify and make declarations on the competence of the court.
“There is a need for member states to complete all the necessary processes to allow their citizens’ access to the African Court,” Justice Akuffo said.
Justice Kioko, on the other hand, explained that citizens and civic groups with observer status to the African Commission on Human and People’s Rights “can have their matters heard by the court if the commission was to refer their cases to the court”.
Justice Kioko further said it would be the commission that would be suing and the individual’s interests would be “carried by the commission”.
The individual, Justice Kioko added, would be riding on the back of the commission if their country has not ratified or made a declaration allowing such a citizen access to the court.