Friday, June 3, 2011

The African Charter on Human and Peoples’ Rights: Developing an Effective Framework

A recent study by the American Journal of Public Health found that an average of 48 women and girls are raped every hour in the Democratic Republic of the Congo.  According to the study, within a 12 month period, 400,000 females were raped during the ongoing civil war that has crippled the country.  Without a doubt, the call for human rights enforcement in Africa rings as loudly as ever. The perennial question debated by human rights scholars is whether Africa can effectively answer that call?  I believe that the African Charter on Human and Peoples’ Rights answers the call for standards that will improve human rights conditions in Africa. However, structural defects within the judicial institutions of the African Charter are limiting the Charter’s effectiveness and leaving the legitimacy of its judicial institutions in question.

Scholars have criticized the African Charter as veering too far from universalist standards, because of its recognition of communal rights and the interpretative discretion it gives member states.  What these scholars fail to recognize is that African states are extremely diverse and find themselves at various stages of development. Unlike regional instruments, such as the European Convention on Human Rights, the drafters of the Charter (OAU, now the AU) could not assume that political systems were wholly democratic or that signatories would be culturally homogenous. Considering Africa’s complex socio-economic history, which resulted in the uneasy convergence of indigenous and western cultural, political, and economic systems, the African Charter is appropriately tailored to the needs and concerns of its signatories.  

 As the European human rights system demonstrates, even when states share similar cultural, religious and political systems a universalist human rights document is quite difficult to implement and enforce.  Although the majority of the signatories to the European Convention share a Judeo-Christian religious culture, democratic political systems, and mixed–market economies, the European Court of Human Rights still finds it necessary to provide a “margin of appreciation.” This diplomatic mechanism is invoked when the court attempts to balance the rights of the petitioner with the national interest of a member state. By applying a margin of appreciation the European Court acknowledges the cultural, historical, and ideological diversity among the member states, which it must do in order to maintain its legitimacy. 

Like the European Court, the African Charter and its judicial institutions must strike a balance between state sovereignty and supranational authority.  The extent of diversity among and within African states makes this balancing act all the more arduous. In my opinion, it is not the rights provisions of the African Charter, but rather the provisions and protocols structuring its judicial institutions that are hindering the implementation and enforcement of human rights standards.

Under Article 2 of the protocol establishing the African Court, the Commission and Court coexist as “complementary” judicial institutions. The complementary roles of these institutions are not clearly defined.   Article 4 of the protocol creating the African Court provides little guidance. It states that “the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the African Commission on Human and Peoples' Rights.” The lack of clarity as to the authority of the judicial organs not only creates confusion for petitioners, but creates disjuncture between the African Court and the Commission.

The Protocol on the Statute of the African Court of Justice and Human Rights, which has not yet entered into force, provides hope for a better organized judiciary. However, with the merger of the African Court of Justice and the African Court of Human Rights will likely result in higher caseloads and a wider range of legal issues. There has been some chatter within the AU about focusing its energies towards sub-regions. Concurring, I believe that the creation of sub-regional courts—with the African Court of Justice and Human Rights monitoring the sub-regional courts and accepting appeals—would provide for a more effective and legitimate judiciary. First, sub-regional courts would limit the caseloads of the African Court of Justice and Human Rights.  With sub-regional caseloads, these courts could provide more attention to investigating and adjudicating each case. Second, sub-regional courts would have a better understanding of local, cultural, political, and economic structures within their regions.  This knowledge and familiarity would allow these courts to better identify and respond to human rights abuses.  Lastly, sub-regional courts would more effectively create a local human rights consciousness, as a result of their constant presence in the region.

Although sub-regional courts currently exist, they are independent of the AU and lack the financial and institutional capacity to handle human rights cases.  First, certain independent, sub-regional courts, such as the East African Court of Justice, do not officially recognize the African Charter as a source of law or have postponed extending jurisdiction to human rights issues. Sub-regional courts under the AU would recognize the African Charter as well as other human rights documents.  Second, many of these courts have faced significant difficulties obtaining funding. Sub-regional courts under the AU could still face this difficulty, but may have the opportunity to receive funding from both the AU and the sub-regions. Lastly, these courts lack the institutional capacity to handle human rights cases. For example, the Tribunal of the Southern African Development Community does not focus exclusively on human rights complaints. Furthermore, although the ECOWAS Court of Justice is mandated to handle human rights cases, it is a newly developed part of a larger organization focused upon economic development. Few would disagree that economic development has a significant impact on the occurrence of human rights violations. However, ECOWAS’ main focus is not on the implementation and enforcement of human rights standards. The delayed and quiet development of the Court is evidence of its lower priority among other ECOWAS institutions.

Considering the establishment of a network of AU sub-regional courts, there are obvious concerns that come to mind, such as whether the creation of sub-regional courts would create a bureaucratic monster, whether issues of corruption would arise at the sub-regional level, and whether these courts would receive adequate funding? Without a doubt, these concerns are valid.  However, I believe that a well defined, wider-reaching, and better organized judicial structure would improve the implementation and enforcement of the African Charter. If the chatter within the AU is to become a reality, it is up to the AU to devise a clear plan for the development and funding of sub-regional institutions. 

Posted by Uche Enemchukwu


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