Sylvain Ore | The right to access of the administration of justice and its contribution to the prevention of the violations of human rights

Dear participants, ladies and gentlemen: Les traigo un cordial saludo desde Arusha de parte de todos los jueces y el personal de la Corte Africana de Derechos Humanos y de los Pueblos. That’s my limit. And this is a google translation, I hope I managed well.

 

I wish to thank the organizers for the interest of the Court, the African Court and for inviting me to share the Courts experience in the relation to access to justice and the protection of human rights in the continent.

 

My topic: The right of access to justice and its contribution to the prevention of human rights violations will be dealt with in four points: First, I will deal with the Court on its mandate, briefly of course. Access to justice in the exertion local remedies (I’ll explain to you what it means). Access to justice as a basic fundamental rights (third). And fourth: effective access to justice can prevent human rights violation.

 

In the age of Internet and images it was fourth that access to justice will no longer be a major concern. One could also think that with globalization, fundamental rights will occupy a natural place and that access to justice would occupy a place of honor. It was a mistake.

 

Unfortunately, we realized that access to justice in a world dominated by economic and political interests, have become a primary rights to guarantee absolutely if you want to prevent violations of human rights. Normally, the states have responsibility to prevent human rights violations. The international law recognized that fact. The jurisprudence of international courts such as International Court of Justice, European Court on Human Rights and the American Court on Human Rights, African Court even the International Criminal Court confirmed that obligation.

 

The Inter-American Court on Human Rights (as we are in America) has clearly established that preventing human rights violation is the obligation of the states. In the case of Velasquez Rodriguez versus Honduras, *which concerned informed his appearance*, the Court said the State has the obligation to take all necessary measures to prevent a human rights violation, which implies, due* diligence of States for right of access to justice. But as I said, it’s not the case because most of the time the States violate the human rights, and this is the cause of why the International Court has been established.

 

I would like to say a few words on the establishment on mandate of the Court and for that purpose I will just show you some short videos, three videos exactly, but very short. The first one is a short documentary on the African court.

 

[VIDEO 1]

 

[NO AUDIO]

 

… than the original standards violated human rights. That’s a national electoral commission that is composed in majority of members of the ruling coalition did not meet the requirements of independence and impartiality. And that sentencing a journalist to time in jail for publications that are critical to public authorities, did not meet the standards of proportionality and violated freedom of expression.

 

While the court has faced issues with implementation of some of it’s judgments, states have generally so far respected its decision. And the African Union has provided the institution with continuous support to uphold human rights justice as an African value on political commitment.

 

Now the second point, let’s deal with access to justice in the execution of local remedies. You know before ** International Court, I’m talking about the African Court that the same applied to the Inter-American Court of Justice. So I think your interest can be great since you are also concerned by the Inter-American Court of Justice.

 

Before considering the merits of a matter brought before it, the African Court must have be certain that domestic remedies have been exhausted. The import of the principle of a exertion of local remedies is that before it is called in an International Forum. The concerned state must be given an opportunity to address the alleged complaint within its domestic system. But there is also a condition: it’s that the states must ratify the protocol of cause and in the case of the African Court must have made a declaration.

 

At this stage, I think it’s important to watch the second video, the one with the interview of Al Jazeera.

 

[VIDEO 2]

 

As you can see, the access to the African Court is a challenge in the protection of human rights in the continent.

 

But in any case, the Court has adopted numerous exceptions to the principle of the extortion of local remedies, and consequently, exempted the applicant from ** of the said remedies. For instance, in the case of ** and ** the Court added that there was no available remedy for the applicants to exhaust, while they did not have ** standing to undertake constitutional review. The Court, therefore found the applicant admissible and the applicant alleged that several provisions of the Malian Court violates International instrument to reach the state as a party, including the African Charter on the Rights and Welfare of the Child and the protocol on the Rights of Women in Africa.

 

In fact, what happened in Mali is that the government tried to change the Constitution, to rewrite the constitution, and in one of the articles that it positioned*, they planned that the age marriage is at 18 for a girl and boys. But then there were big demonstrations of Islamist and the government was obliged to withdraw that law and to put that the girls can be married at 15 years without even the consents, and also the boys can be married to 15 to 18 years. And also in the **, the illegality between boys and girl.

 

One citizen just ** the African Court because it was not possible to see the Constitutional Court since the petition, the ** the position could not be done there. And the court decided that it is a violation of the human rights and it’s discriminatory against the girls. So this is one of the access of the Court when the National labels everything as failed.

 

The second two points is that of access to justice as basic fundamental rights.

 

These aspects of access to justice can be seen as deriving from the possible aspects of the right to remain a stand alone prescription. In that respect, the African Charter provides respectively for the right to have one cause heard and be tried by competent and impartial Courts and the independence of the judiciary.

 

One case that might be brought to ** this aspect of access to justice is that of [Anudo name] Tanzania, where the applicant was expelled to a ‘no man’s land’ after being denied the states recognition to nationality. In considering where were the facts for the correspondents immigration authority to expel the applicants before he could exercise his rights to fight his case in domestic court, violated its rights. The African court took the view that ** at prevented the applicant from using assisting remedies. As such and given that the court ultimately found a respondent in violation of the applicants rights to citizenship. It is understood that, had the respondent allowed the applicant access to domestic court, his rights to nationality might not have been violated.

 

The fourth and last point is: Effective access to justice can prevent human rights violation. And before I say something about that, I will just show you the last video about Ogiek people, indigenous people.

 

[VIDEO 3]

 

So in the conclusion you can see how access to justice and the prevention of human rights violation can bring peace.

 

You have seen in the video that it can bring social peace among peoples and we are very glad that CUMIPAZ has programmed this kind of session, because indeed justice is also a kind of peace. As was said in the morning by my ** colleagues, the judge from ICC: Justice and peace has to be hand to hand; if I express very well what you said.

 

So thank you very much for your kind attention.