Guest blog by T. Brooks Davi
The African Court on Human and Peoples’ Rights (‘the Court’) is a continental court that was established by the African Union in 1998 to ensure the protection of human rights in Africa. The Court sits in Arusha, Tanzania and has jurisdiction over all cases submitted to it concerning the interpretation and application of the African Charter on Human and Peoples’ Rights (‘Banjul Charter’), the Protocol on the Establishment of the African Court on Human and Peoples' Rights (‘Court’s Protocol’) and any other relevant human rights instrument ratified by the country concerned. The Court became operative in 2004 and whilst its beginnings were somewhat slow and inauspicious, it has progressed rapidly in recent years, issuing a number of landmark judgments and carrying out activities that have bolstered human rights protections across Africa.
Court’s Expansion of its Jurisdiction
One of the most notable advances in recent years has been the Court’s expansion of its jurisdiction to hear cases concerning violations of human rights. Article 3(1) of the Court’s Protocol, as well as allowing the Court to hear violations of the Banjul Charter, allows it to hear cases concerning “any other relevant human rights instrument ratified by the States concerned”. Whilst the Court initially expressed reluctance to decide matters that were not explicitly concerned with violations of the Banjul Charter, recent times have seen a paradigm shift in its approach, and the Court has now conferred a broad power upon itself to hear violations of any human rights treaty that a respondent state has ratified, irrespective of whether there has been an alleged violation of a right contained in the Banjul Charter or not. This change was most recently demonstrated in the 2017 case of Actions pour la protection des droits de l’Homme (APDH) v Mali which concerned women’s rights in Mali. In this matter, the Court exercised its jurisdiction over the case notwithstanding that the Applicants did not allege any violation of the Banjul Charter but rather a host of other international treaties including the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (‘Maputo Protocol’), the Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) and the African Charter on the Rights and Welfare of the Child (‘ACRWC’). With this expansion of its jurisdiction, the Court has greatly enhanced its scope to redress human rights violations on the Continent and now stands as a unique example of a human rights court which is able and willing to hold states to account for a vast array of human rights violations, not just those defined by its own statute or protocol.
Recognition and Enforcement of Indigenous Peoples’ Rights
It is to be noted that as well as protecting civil rights and economic, social and cultural rights, the African Court is also tasked with defending “peoples’ rights” which are set out in Articles 19-24 of the Banjul Charter. In the recent landmark judgment of African Commission on Human and Peoples’ Rights v. Kenya (2017) the Court elaborated on this concept of peoples’ rights and demonstrated its willingness to recognise and enforce them against powerful state interests. The application was brought on behalf of the Ogiek peoples, who are an ethnic group of hunter-gatherers, indigenous to the Mau Forest in Kenya. The Ogiek claimed that they had been unlawfully evicted from the forest, which they consider their ancestral home, by the Kenyan government who had sold off much of the land to corporations for commercial use. As a result of this eviction, the Applicants claimed that their peoples’ rights had been violated, in addition to a number of other fundamental rights found in the Banjul Charter. The specific peoples’ rights at issue were the right to freely dispose of their natural resources (Article 21 Banjul Charter) and the right to development (Article 22 Banjul Charter).
In its judgment, the Court first examined the concept of “peoples” and concluded that whilst the term was originally meant to refer to entire populations in their fight against colonial oppression, it could also be used to include “sub-state ethnic groups and communities that are part of that population”. The Court held that as the Ogiek people are an ethnic group that are part of the Kenyan population, they are therefore “peoples” for the benefit of the Banjul Charter. The Court moved on to state that by evicting the Ogiek peoples from the forest, the Kenyan government had deprived them of the abundance of food it provides and thus had prohibited them from freely disposing of their natural resources contrary to Article 21 of the Banjul Charter.
In dealing with the right to development, the Court first made reference to the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’), Article 23 of which provides that indigenous peoples must be “actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions”. The Court held that the Ogiek’s expulsion from the forest without consultation and the subsequent injurious effects that this has had on their economic social and cultural development constituted a violation of Article 23 as they had been prohibited from having a say on issues that greatly affected them. This judgment demonstrates the Court’s willingness to recognise and enforce the rights of indigenous peoples and marks a new era in human rights protections for groups who are frequently subject to executive and corporate abuses on the African Continent.
Sensitization Missions and Increased Declarations
The African Court is unique in that, for individuals and NGOs to have direct access to the Court, the states concerned must, in addition to ratifying the Court’s Protocol, deposit a “Special Declaration” with the Court which specifically allows it to hear cases brought by these parties. Whilst around half the states on the African Continent have signed and ratified the Court’s Protocol, so far, only 8 states have deposited their Special Declaration with the Court. This low participation rate continues to hamstring the Court’s progress, as many individuals simply do not have access to the Court and it also precludes civil society’s engagement with the Court in many cases. In response to this, the Court has begun to carry out a number of what it terms “sensitization missions” which have the goal of encouraging states to ratify its Protocol and Special Declaration as well as to raise awareness of the African Court generally. Sensitization Missions consist of meetings between a Court Delegation (3 judges and the Registrar), high-ranking politicians and members of the judiciary from selected states. Civil society are also invited to participate in these missions and the Court engages with them through workshops and seminars.
Following the Court’s mission to Benin in 2015, Benin deposited its Special Declaration the following year and now allows individuals and NGOs access to the Court. Furthermore, following the mission to Tunisia in 2017, Tunisia also deposited its Special Declaration with the Court. The African Court has already began its sensitization programme for 2018 and has recently completed a three day mission to the Sahrawi Arabic Republic. Whilst there has been no great increase in the number of States joining the Court since it began its sensitization missions in 2010, examining the cases of Benin and Tunisia, which deposited their Special Declarations shortly after the Court’s visit, we can infer that the Court is having some success as a result of its missions. These two additional Special Declarations bring an estimated 20 million people within the Court’s purview as well as a number of NGOs and mark a clear progression for the Court in its role as a protector of human rights in Africa.
Recent years have seen the African Court begin to find its stride. Its willingness to expand its jurisdiction and defend vulnerable groups against powerful states has shown it to be a bold court with a desire to vigorously uphold its mandate to protect human rights on the Continent. Whilst it indeed seems that the Court has the aspiration to assert itself, the fact that so few states have deposited their Special Declarations allowing individuals and NGOs direct access to the Court continues to hamper its effectiveness. The Court’s outreach efforts to engage with states and civil society in response to this paucity of Special Declarations do appear to be having some success, however, progress has been slow and the Court may have to have recourse to other means to improve state engagement in future.