SciELO - Scientific Electronic Library Online

 
vol.9 issue1Human rights developments in the African Union during 2008Out of the starting blocks: The 12th and 13th sessions of the African Committee of Experts on the Rights and Welfare of the Child author indexsubject indexarticles search
Home Pagealphabetic serial listing  

Services on Demand

Article

Indicators

Related links

  • On index processCited by Google
  • On index processSimilars in Google

Share


African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Afr. hum. rights law j. vol.9 n.1 Pretoria  2009

 

RECENT DEVELOPMENTS

 

Human rights developments in sub-regional courts in Africa during 2008

 

 

Solomon T Ebobrah

LLD Candidate and Tutor (LLM Human Rights and Democratisation in Africa), Centre for Human Rights, University of Pretoria, South Africa; Lecturer, Niger Delta University, Nigeria

 

 


SUMMARY

The year 2008 saw very significant developments in the budding human rights activities of regional economic communities in Africa. This was especially prominent in the area of supranational judicial protection of human rights by sub-regional courts. In East Africa, Southern Africa and West Africa, sub-regional courts concluded cases with considerable implications for the protection of rights on the continent. As human rights litigation before sub-regional courts is still a new trend, the jurisprudence that emerged from these courts in 2008 provides opportunities for improving a popular understanding of the processes of the courts. It also allows for reflections on the real value of these developments.


 

 

“Full text available only in PDF format”

 

 

* LLB (Rivers State), LLM (Human Rights and Democratisation in Africa) (Pretoria); sebobrah@yahoo.co.uk. I am grateful to Abdi Jibril Ali (LLM (Human Rights and Democratisation in Africa) class of 2009) for his assistance in the research for this contribution.
1 The African Court on Human and Peoples' Rights, which was established to complement the protective mandate of the African Commission on Human and Peoples' Rights, had not heard a single case as at 31 March 2009, even though the judges of the Court took office in January 2006.
2 The subsidiary plenary bodies consist mostly of national ministers.
3 Since 2005, the ECCJ has handed judgment in no less than 16 cases, most of which touch on aspects of human rights. See generally ST Ebobrah 'A rights-protection goldmine or a waiting volcanic eruption? Competence of, and access to the human rights jurisdiction of the ECOWAS Community Court of Justice' (2007) 7 African Human Rights Law Journal 307.         [ Links ]
4 Unreported Suit ECW/CCJ/APP/04/07, Judgment ECW/CCJ/JUD/03/08, judgment delivered on 5 June 2008.
5 Unreported Suit ECW/CCJ/APP/08/08, Judgment ECW/CCJ/JUD/06/08, judgment delivered on 27 October 2008. The Koraou case received wide publicity in the media and on the internet and has brought attention to the work of the ECCJ.
6 SADC (T) Case 1/2007, judgment delivered on 27 May 2008.
7 SADC (T) Case 2/2007 in which judgment was delivered on 28 November 2008. The Campbell case was filed in 2007 and became famous with an interim ruling by the Tribunal in December 2007.
8 Reference 3 of 2007.
9 See F Viljoen International human rights law in Africa (2007) 490;         [ Links ] W Braude Regional integration in Africa (2008) 62.         [ Links ]
10 Braude (n 9 above) 63.
11 The 1999 Treaty of the EAC, which was adopted and ratified by Kenya, Tanzania and Uganda, entered into force on 7 July 2000. Burundi and Rwanda acceded to the EAC Treaty on 18 June 2007. The EAC Treaty is available at http//www.eac.int (accessed 20 March 2009).
12 See art 5(2) of the 1999 EAC Treaty.
13 See art 7(2) of the 1999 EAC Treaty.
14 The organs of the EAC are the Summit, the Council of Ministers, the Co-ordinating Committee, the Sectoral Committees, the East African Court of Justice, the East African Legislative Assembly and the Secretariat.
15 See art 27(2) of the EAC Treaty.
16 In the 2007 case of Katabazi & 21 Others v Secretary-General of the EAC & Another, Ref 1 of 2007, the EACJ had to deal with allegations of human rights violations contrary to the EAC Treaty. See also Prof Nyoungo 'o & 10 Others v The Attorney-General of Kenya & Others, Ref 1 of 2006 (Nyoungo'o case). In the Nyoungo'o case, the application was for invalidation of the process and the rules made by the Kenyan National Assembly for the purposes of selecting Kenyan representatives to the East African Legislative Assembly (EALA). The application was brought on the grounds that the process and the rules violated art 50 of the EAC Treaty, which requires the election of persons to the EALA by national assemblies. The EACJ found that there had been a violation of art 50 of the EAC Treaty.
17 The amendments were made in 2007 by Kenya, Tanzania and Uganda while Rwanda was formalising its membership. The amendments were to restructure the EACJ into two divisions: a First Instance and an Appellate Division; to expand the grounds for removal of judges of the Court, to limit the jurisdiction of the Court, to set time limits for the filing of cases by individuals and legal persons, and to set grounds for appeal and deem current judges as First Instance judges and past decisions as First Instance decisions.
18 East African Law Society case (n 8 above) 17.
19 One outcome of the EACJ decision in the Nyoungo'o case was that the East African Legislative Assembly could not be inaugurated. See East African Law Society case (n 8 above) 33-34.
20 East African Law Society case (n 8 above) 14-16.
21 East African Law Society case (n 8 above) 25.
22 East African Law Society case (n 8 above) 23-25 28.
23 As will be shown shortly, the SADC Tribunal also relied on fundamental principles to claim competence over human rights.
24 East African Law Society case (n 8 above) 32-34.
25 See art 38(2) of the EAC Treaty.
26 This comes out in the East African Law Society case (n 8 above) 37.
27 At inception, there were 15 member states that made up ECOWAS. These were Benin, Burkina Faso, Côte d'Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Sierra Leone and Togo. Cape Verde subsequently acceded to the ECOWAS Treaty of 1975, bringing the membership to 16. In 2000, Mauritania withdrew its membership, bringing the membership of the organisation once again to 15.
28 Art 2(1) of the 1975 ECOWAS Treaty.
29 The intervention of the ECOWAS Monitoring Group (ECOMOG) in Liberia and Sierra Leone in the late 1980s and the early 1990s illustrates this trend. See generally F Olonsakin & EK Aning 'Humanitarian intervention and human rights: The contradictions in ECOWAS' (1999) 3 The International journal of Human Rights 17.         [ Links ]
30 In 1992, a Committee of Eminent Persons was appointed to review the 1975 ECOWAS Treaty. The report of the Committee is available at the ECOWAS Commission Abuja (on file with the author).
31 The ECOWAS Revised Treaty was signed in Cotonou, Benin on 24 July 1993 and entered into force on 23 August 1995. The 1993 revised Treaty was signed by the then 16 member states of the organisation before the withdrawal of Mauritania in 2000.
32 Art 3(1) of the 1993 revised ECOWAS Treaty.
33 See art 4 of the 1993 revised ECOWAS Treaty on the principles of ECOWAS. The organs or institutions of ECOWAS include the Authority of Heads of State and Government, the Council of Ministers, the Community Parliament, the Economic and Social Council, the Community Court of Justice and the ECOWAS Commission.
34 Supplementary Protocol A/SP 1/01/05 Amending Protocol A/P 1/7/91 relating to the Community Court of Justice adopted in 2005.
35 In 2008, the ECOWAS Commission was involved in election monitoring in Guinea, Guinea Bissau and Ghana. The ECOWAS Commission also organised workshops on trafficking in persons, including on issues of victim rehabilitation.
36 Manneh case (n 4 above) para 5.
37 Manneh case (n 4 above) para 4.
38 See Essien v The Gambia, unreported Suit ECW/CCJ/APP/05/05, judgment delivered on 14 March 2007.
39 Manneh case (n 4 above) para 9.
40 See art 90(4)(a) of the rules of procedure of the ECCJ.
41 See Ebobrah (n 3 above) on this point.
42 In certain cases, complaints before the African Commission are postponed for periods of three to six months or more to enable state parties to respond to the communication against them.
43 Compare paras 3 & 11 of the Manneh case (n 4 above).
44 See para 24 of the Manneh case (n 4 above). This, it can be argued, is based on art 5 of the African Charter.
45 See Zegveld & Another v Eritrea (2003) AHRLR 84 (ACHPR 2003), eg, where the detention of persons incommunicado and solitary confinements were held to be gross violations of Charter-based human rights.
46 Para 25 of the Manneh case (n 4 above). The ECCJ quotes the whole of art 2 in this para.
47 See eg C Heyns 'Civil and political rights in the African Charter' in M Evans & R Murray (eds) The African Charter on Human and Peoples' Rights (2004) 144-145.         [ Links ] Heyns uses the same approach by severing the first limb of art 2 for that purpose.
48 Compare Purohit & Another v The Gambia (2003) AHRLR 96 (ACHPR 2003) para 49, where the African Commission stated that arts 2 and 3 of the African Charter basically form the anti-discrimination and equal protection provisions of the Charter.
49 Para 33 Manneh case (n 4 above). One wonders whether the fact that the African Commission is not a court in the strict sense of the word is partly responsible for the failure by the ECCJ to consider the jurisprudence of the Commission. This is because the court makes reference to decisions of other international courts in its judgments.
50 Para 26 Manneh case (n 4 above).
51 See para 39 Manneh case (n 4 above).
52 Paras 40-45 Koraou case (n 5 above).
53 European Court of Human Rights Applications 2832/66; 2835/66; 2899/66, judgment of 18 June 1971. See J Allain 'Hadijatou Mani Koraou v Niger (2009) 103 American Journal of International Law.         [ Links ] Allain takes issue with the Court's findings and especially the application of the European Court's decision.
54 Para 42 Koraou case (n 5 above).
55 See eg Essien case (n 38 above) para 27, where the ECCJ took the position that the requirement in art 56 of the African Charter is directed at the African Commission specifically.
56 ST Ebobrah 'A critical analysis of the human rights mandate of the ECOWAS Community Court of Justice' (unpublished research report submitted to the Danish Institute for Human Rights in December 2008) 15.         [ Links ]
57 See eg Ugokwe v Federal Republic of Nigeria, unreported Suit ECW/CCJ/APP/02/05 para 32 and Keita case (n 24 above) para 31.
58 In para 83 of the Koraou judgment (n 5 above), the ECCJ expressed displeasure that the national courts did not denounce the slave status of Hadijatou.
59 The ECCJ applied art 26 of the 1991 Protocol of the Court when it moved to Mali in the case of Keita v Mali, unreported Suit ECW/CCJ/APP/05/06.
60 Paras 49 to 53 Koraou case (n 5 above).
61 This argument was raised in the final brief submitted by counsel for Niger. See para 54 Koraou case (n 5 above).
62 Para 54 Koraou case (n 5 above).
63 Art 56(6) of the African Charter is a good example of such statutory limitation.
64 Paras 87 to 89 Koraou case (n 5 above).
65 Para 96(1) Koraou case (n 5 above).
66 See Interights & Others (on behalf of Bosch) v Botswana (2003) AHRLR 55 (ACHPR 2003) para 51, where the African Commission stated that a state violates art 1 of the African Charter only when it fails to enact relevant legislation to give force to Charter rights.
67 See paras 77 to 79 Koraou case, (n 5 above).
68 Paras 84 to 86 Koraou case, (n 5 above).
69 Para 91 Koraou case (n 5 above).
70 See Purohit v The Gambia (n 48 above) para 64.
71 Art 77 of the 1993 revised ECOWAS Treaty.
72 'Nigerian lawyer writes Chambas on detained Gambian journalist' Panapress, http://www.panapress.com/newslatf.asp?code=eng045982&dte=05/08/2008 (accessed 12 April 2009).         [ Links ]
73 Niger's Minister of African Integration quoted in portlandtribune.com/us_world_news/story.php? (accessed 11 April 2009).
74 See Viljoen (n 9 above) 492; also see generally GH Oosthuizen The Southern African Development Community: The organisation, its policies and prospects (2006).         [ Links ] The founding members of the SADCC were Angola, Botswana, Lesotho, Malawi, Mozambique, Swaziland, Tanzania, Zambia and Zimbabwe.
75 The Treaty of SADC was signed in Windhoek, Namibia, on 17 August 1992 but was amended in 2001. The current member states of SADC are Angola, Botswana, the Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.
76 See art 5(1)(a) of the Consolidated SADC Treaty. The Treaty is available at http://www.sadc.int/index (accessed 11 April 2009).
77 Generally see art 5 of the Consolidated SADC Treaty.
78 Art 4 of the Consolidated SADC Treaty.
79 Art 16 of the SADC Charter of Fundamental Social Rights.
80 See Final Communiqué of the 28th Summit of SADC Heads of State and Government, http://www.sadc.int/index/browse/page/203 (accessed 17 February 2009).         [ Links ]
81 This is based on a joint reading of the letter of employment and Rule 14.2.6 of the SADC Administration Rules and Procedures handbook.
82 Mtingwi case (n 6 above) 15.
83 Compare the arguments whether the European Union as an organisation should be bound by the European Convention on Human Rights (ECHR) without a formal accession to that instrument, separate from the ratification of the ECHR by individual member states.
84 The Campbell case (n 7 above) is seminal in the sense that it is the first matter brought to the Tribunal by an individual seeking protection for human rights against a member state of SADC. Between October 2007 and November 2008 when final judgment was delivered, the SADC Tribunal entertained and gave its ruling in five different interim applications.
85 See the Campbell case (n 7 above) 8.
86 Campbell & Another v Zimbabwe (Campbell interim 2007), SADC (T) Case 2/2007, ruling of 13 December 2007 2.
87 Campbell interim 2007 (n 86 above) 7.
88 See Gideon Stephanus Theron v Zimbabwe & 2 Others, Case SADC (T) 2/08; Douglas Stuart Taylor-Freeme & 3 Others v Zimbabwe & 2 Others, Case SADC (T) 03/08; Andrew Paul Rosslyn Stidolph & 58 Others v Zimbabwe & 2 Others, Case SADC (T) 04/08; and Anglesea Farm (Pvt) Ltd v Zimbabwe & 2 Others, Case SADC (T) 06/08 (consolidated) 8. The interim measure was not ordered in respect of the last three applicants as their eviction had been completed at the time of the application.
89 Albert Fungai Mutzie & Others v Campbell & 2 Others, Case SADC (T) 8/08.
90 Nixon Chirinda & Others v Campbell & 2 Others, Case SADC (T) 9/08.
91 Campbell interim 2007 (n 86 above) 7-8.
92 Compare the ECCJ which entertained a dispute with only individuals as parties in Ukor v Laleye, unreported Suit ECW/CCJ/APP/01/04.
93 See the ruling of 18 July 2007 in the Campbell case (on file with the author).
94 By the organisational structure of SADC, the Summit of Heads of State and Government is the highest authority of SADC.
95 Campbell case (n 6 above) 12-13.
96 Campbell case (n 6 above) 15-16.
97 Campbell case (n 7 above) 17-18.
98 See the arguments put forward by the respondent state on 23 of the Campbell case (n 7 above).
99 As above. Art 21(b) of the Protocol on the Tribunal enjoins the Tribunal to develop its own jurisprudence 'having regard to applicable treaties, general principles and rules of public international law'.
100 Campbell case (n 7 above) 19-21.
101 See 25 of the Campbell case (n 7 above).
102 It is interesting that, unlike some other systems, there is room for dissenting judgments and the dissenting opinion of Judge OB Tshosa on whether Amendment 17 amounted to racial discrimination is relevant.
103 See 53 of the Campbell case (n 7 above).
104 See 49-50 of the Campbell case (n 7 above).

Creative Commons License All the contents of this journal, except where otherwise noted, is licensed under a Creative Commons Attribution License