"Challenges, Strategies, Operational Capacity, and Efficiency of the African Court of Human Rights and of the People for the Prevention and Sanction of the Crime of Genocide and the Defense of Human Rights" - Augustino S.L. Ramadhani

[Translation turned in by lecturer]

"Challenges, Strategies, Operational Capacity and Efficiency of the African Court of Human Rights and of the People for the Prevention and Sanction of the Crime of Genocide and the Defense of Human Rights"

A document presented by the jurist Augustino SL Ramadhani, immediate ex-president of the African Court of Human and Peoples' Rights.

 

A. INTRODUCTION

 

1. I am going to speak briefly about the African Court since I know that very few participants are aware of the Court. Next, I will look at the challenges, strategies, operational capacity, and efficiency of the African Court with regard to the Defense of Human Rights. Thirdly, I will consider the African Court and the crime of genocide. Fourthly, I am going to review some decisions of the Court that address some of the Human Rights related to risk factors. Finally, I'm going to take a look at Criminal Justice in Africa.

2. The African Charter on Human and Peoples' Rights (the Charter) was adopted by the Organization of African Unity on June 27, 1981 and entered into force on October, 21 1986. The purpose of the Charter is to promote and to protect human and peoples' rights and freedoms. To this end, the Charter created the African Commission on Human and Peoples' Rights (the Banjul Commission). The Banjul Commission investigates complaints submitted to it and makes recommendations that are not binding on States, as it is a quasi-judicial body.

3. Due to the challenges of the Banjul Commission regarding the implementation of its recommendations, the African Union decided to establish a Tribunal to make binding decisions. Thus, in 1998, the Protocol of the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human Rights and Human Peoples and on the Rights of Peoples (Protocol) was adopted and the African Court to complement the protection mandate of the Banjul Commission was created.

 

b. The composition of the Court:

 

4. The Court is composed of eleven judges who are nationals of the Member States of the AU and are elected in the individual capacity of jurists of high moral authority and recognized judicial or academic background and practical experience in the field of Human and peoples' rights. The judges are elected by the Assembly of Heads of State for a period of six years renewable once. The judges then elect a President and a Vice-President from among themselves for a period of two years, renewable once.

 

c. The Competition of the Court:

 

5. The Court has jurisdiction over:

i. Contentious Matters:

This is the jurisdiction of the Court over all cases and disputes submitted to it for its interpretation and application of the Charter and any other human rights instrument ratified by the States concerned.

ii. Matters of advisory opinions:

The Court may give an advisory opinion on any legal matter relating to the Charter or any other human rights instrument. The request for an advisory opinion may come from the AU; A member state of the African Union, any other body of the AU or any African organization recognized by the AU. However, the matter should not be one that is before the Banjul Commission.

 

d. The Judgments of the Court and its Compliance:

 

6. A Court decision is final and binding, however, the Court may review a judgment due to a request from a party based on the discovery of new evidence that was not within the knowledge of that party at the time of judgment. The Court may issue the corresponding orders to remedy the violation including the payment of a fair compensation or reparation.

7. The parties in a case must be notified of the resolution that has been given and that they have committed to comply with, within the time stipulated by the Court. Copies of the judgments are also transmitted to the Member States of the African Union, the Banjul Commission, and the Council of Ministers responsible for supervising their execution on behalf of the Assembly.

 

C. CHALLENGES, STRATEGIES, THE CAPACITY OF OPERATIONAL EFFICIENCY AND THE AFRICAN COURT WITH RESPECT TO HUMAN RIGHTS DEFENSE

 

8. There are six main challenges to the Court in defending human rights:

i. Low level of visibility of the Court, lack of ratification of the Protocol, and preparation of the Declaration:

The Court is not known either by lawyers and leaders and this has led to a low level of ratifications of the Protocol and very few declarations under Article 34 allowing individuals and non-governmental organizations (NGOs) to accede to The Court directly. Thirty States of the 54 AU Member States have ratified the Protocol and of these only 7 have made the declaration. The challenge is to make the Court truly African, having jurisdiction over all of Africa and the African peoples.

ii. How to deal with the number of cases:

Despite the low rate of ratifications and declarations, there are many requests and requests for advisory opinions that have been submitted to the Court. At the moment there are 79 pending applications and 6 advisory opinions.

Iii. Budgetary constraints:

The budget allocated to the Court is not enough to make it work as it should be. For example, the budget for January through December of fiscal year 2016 is $ 8 million of state funding and $ 2 million of donor funding totaling $ 10 million. It is worth remembering that in October 2000, the ICJ asked the UN to increase its budget from $ 10 million to $ 13 million to avoid "slow death". That was over 15 years ago and the Court's budget is still $10 million.

Iv. Inappropriate staff:

The Tribunal has insufficient staff. There are only ten lawyers and that number includes the Secretary and Deputy Secretary. This is the case for all other sections.

V. Enforcement of judgments:

The implementation of the Court's rulings also poses a problem. The Protocol obliges the Court to report to the Assembly on the state of execution of its judgments, which generally depends on the will of the participating States. There is no enforcement mechanism.

saw. Inadequate premises:

The Court is housed in rented buildings that are extremely inadequate. Some judges, for example, share offices and other staff members are crammed into small rooms.

 

B. Strategies, Operational Capacity and Efficiency

 

9. The Court has carried out certain strategies and has developed operational capacities to cope with the existing task and has achieved a certain degree of efficiency.

I. Low Level of Awareness:

The Court of Justice has launched the awareness-raising strategy in 25 Member States of the AU. These awareness-raising missions have been funded by the German Government through GIZ. The last mission was in Chad in December last year, with the participation of ten Central African States. As a result, Chad ratified the Protocol at the Summit in January of this year. Regrettably, however, the GIZ no longer sponsors these awareness missions and the EU will only sponsor very few missions in the next three years of the new agreement.

Ii. Legal Assistance Fund:

One of the important strategies to ensure that applicants can also involve the Court is to ensure legal representation for them. So far a small sample of US $ 10, 000 is reserved for such service. Almost all cases before the Court of Justice are carried out on a pro bono basis. The Court has therefore sent a document to the political bodies of the AU and the Statute on the establishment of the Legal Assistance Fund of AU human rights bodies was approved on 31 January 2016. The Fund will achieve to cover aid to unsuccessful applicants that do not have resources.

Iii. Treatment of the load / number of cases:

Since most cases are from Tanzania and more or less complaints are of the same nature, the Court intends to have pilot judgments that would be used to apply to cases and to have an understanding with the relevant authorities of Tanzania and thus agree on the application of Pilot Trials. If this is successful, then the number of cases will be greatly reduced.

Iv. Enforcement of judgments:

The Court also presented to the AU political bodies another role in the execution of sentences; however, this has to be addressed.

 

D. THE AFRICAN COURT AND THE CRIME OF GENOCIDE

10. Obviously, from what has been said so far, there is no direct relationship between the African Court and the crime of genocide. This is very clear seeing the jurisdiction and powers of the Court in accordance with the provisions of the Protocol that was created by the court:

i. The Court only deals with human rights issues.

ii. Cases before the Court are against the States whereas crimes of Genocide are against the persons (accused).

iii. The Court has no power to convict and sentence. The Court has authority to order a state to make the payment of just compensation or reparation.

11. However, the Court can deal with human rights violations that are criminal in nature; after all genocide is defined as the deliberate and systematic eradication or mass murder of a large group or population identified by the perpetrators. Therefore genocide is the large-scale violation of human rights. That it is also the importation of the Rome Statute which gives an elaborate definition of genocide.

12. The "Compilation of risk factors and legal standards for the prevention of genocide" gives a number of human rights risk factors. I will only mention groups and not in detail:

1. The political and social exclusion of the members of a particular group;

2. Attacks on the identity of members of a particular group; and

3. Restrictions on the movement of members of a particular group;

4. Denial of access to basic needs to members of a particular group; and

5. Violations of the rights to life, liberty, and personal integrity of members of a particular group.

 

E. DECISIONS OF THE COURT TO ADDRESS SOME OF THESE "RISK FACTORS AND LEGAL STANDARDS"

 

13. Due to the time limitation, I will cite three decisions of the Court, and a case pending before the Court, dealing with these "risk factors and legal standards" and thus contribute to the prevention of possibilities of the crime of genocide:

The beneficiaries of the late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabe human rights and popular movement. Burkina Faso Norbert Zongo was a research journalist and the Director of the weekly magazine Le independent. He investigated the death of a certain David Ouedraogo who was the chauffeur of François Compaoré, a brother and adviser to the President of the Republic of Burkina Faso. Consequently, he published a series of articles. He and his three companions were killed in 1998.

The beneficiaries of the murdered journalists arrived at the Court by filing a complaint that the Burkina Faso authorities not only failed to investigate, detain the perpetrators and bring them to justice, but they also discouraged the efforts of those who were willing to do so.

The Court held that the respondent State did not take adequate measures to ensure respect for the rights of journalists killed, and did not show due diligence in the search, investigation, prosecution and trial of the killers. Therefore, the Court ordered the respondent State to seek, investigate, prosecute, and trial the killers.

B. Lohe Issa Konate v. Burkina Faso. Lohé Issa Konaté is an editor who contributes to a weekly newspaper L'Ouragan and was found guilty of an offense after having written several articles against the prosecutor of Burkina Faso. He was sentenced to a 12-month prison sentence and also ordered to pay a fine of CFA (African Francs) F1.5 million (equivalent to US $ 3000).

The Court held that the criminalization of defamation is valid, but sentences of custody for criminal defamation are not valid and that fines are sufficient remedies.

C. Tanganyika Law Society and the Legal and Human Rights Center v. Tanzania consolidated with Rev Christopher Mtikila v. Tanzania. Rev Mtikila argued that certain articles of the Constitution of the United Republic of Tanzania and certain sections of the electoral act requiring that, collectively, the candidates for presidential elections, parliamentary and local government should be members of and be sponsored by a political party, constitute a violation of Articles 2, 10, and 13 of the Charter and Articles 3 and 25 of the [International Convention on Civil and Political Rights] ICCPR. "

The Court stated, inter alia, that "freedom of association is denied if an individual is obliged to associate with others. Freedom of association is also denied if other persons are forced to unite with the individual. In other words, freedom of association implies freedom of association and freedom not to associate. "

D. The case of the African Commission on Human and Peoples' Rights. The Republic of Kenya is pending before the Court, so I have to be very careful. The case was referred to the Court by the Banjul Commission. There is an ethnic minority group of indigenous Kenya called the Ogieks inhabiting the "Greater Mau Forest", a land area of ​​approximately 400,000 hectares. These people have a very traditional way of life. The Government issued a thirty-day eviction order for the Ogiek and other villagers of the Mau Forest on the grounds that the forest is a reserved water catchment area and also that the area is to be used for economic development for the benefit of all the nation.

The Ogiek people are asking the court to stop the eviction and to order the government to refrain from harassing, intimidating and interfering with the traditional livelihoods of the community. The Ogieks have also claimed compensation.

Whatever the decision is to be delivered, it will be a point of reference for indigenous minorities.

14. These decisions have to do with the following freedoms and rights to know: from my humble submission that the extensive frustration and violations of these freedoms and rights, among other things, "could potentially degenerate into genocide," to use Koffi Annan’s phrase, former Secretary General of the UN.

 

15. F. CRIMINAL JUSTICE IN AFRICA

 

16. The African Union is involved in the functioning of criminal justice in Africa whereby the Assembly of Heads of State requested the AU Commission, in consultation with the Banjul Commission and Court, to examine the implications of the Court to be able to prosecute international crimes against humanity and war crimes.

17. The Court in September 2009 gave its view that it was possible to give the Court a mandate on international crimes, but it would require institutional and legal adjustment and significant financial support.

18. In Malabo, Equatorial Guinea, in June 2014, the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol) was adopted by the Assembly of the AU. The Court's mandate was extended to international criminal jurisdiction covering 14 crimes including genocide, crimes against humanity and the crime of unconstitutional change of government.

19. In January 2015, the Assembly of Heads of State decided to implement the exercise of the Court's jurisdiction to try international crimes for signature and to ratify the protocol required, to establish a special fund and to convene a mobilization conference Of resources to raise funds to initiate and sustain the activities of the proposed African Court chambers of the international criminal law section to be provided for in article 19 bis of the Protocol. At that summit Kenyan President Uhuru Kenyatta contributed US $ 1m to the fund.

20. Fifteen ratifications are necessary for the Protocol to enter into force, but to date no State has done so except nine States have signed the Protocol.

21. Many criticisms have been directed against article 46 bis, which provides immunity from charges in the service of "Head of State or Government, or anyone acting or entitled to act in that capacity, or other senior officials of the State on the basis of his duties, during his tenure of office". Let me point out two things:

1. Immunity is during person’s the stay in a given position. That means that the processing can proceeded after the stay in a given position.

2. Many constitutions of African States contain such a provision. Perhaps the only question is: Who is a high official of State?

 

G. CONCLUSION

22. Human rights and genocide are inseparable since genocide is also a violation of human rights. Some human rights violations are criminal in nature and can lead to genocide. There is a saying that when there is smoke there is fire. Therefore, widespread and systematic violation of human rights is a breeding ground for genocide.

23. However, once the Malabo Protocol enters into force, the Court will be in a position to deal with the prevention and punishment of the crime of genocide, apart from the defense of human rights.

Thank you.