RECENT DEVELOPMENTS

Human rights developments in African sub-regional economic communities during 2009

Solomon T Ebobrah

Researcher, Centre for Human Rights, University of Pretoria, South Africa; Lecturer, Niger Delta University, Nigeria

SUMMARY

The year 2009 saw important judicial and non-juridical human rights developments within the framework of three of the most active regional economic communities in Africa. During the year, each of the three communities engaged in some form of standard-setting in the field of human rights. Further, in East Africa, thematic meetings relevant to human rights were convened. In Southern Africa and West Africa, the communities embarked on activities aimed at strengthening democracy. Sub-regional courts in Southern Africa and West Africa were also involved in human rights cases during 2009. These developments are reviewed to highlight their overall significance in the context of human rights in Africa.

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* LLB (Rivers State), LLM (Human Rights and Democratisation in Africa), LLD (Pretoria); seborah@yahoo.co.uk
1 African human rights scholars are increasingly acknowledging this fact. See generally F Viljoen International human rights law in Africa (2007) and J Akokpari &         [ Links ] DS Zimbler (eds) Africa's human rights architecture (2008).         [ Links ]
2 Viljoen (n 1 above) 488.
3 See eg ST Ebobrah 'Human rights developments in sub-regional courts in Africa during 2008' (2009) 9 African Human Rights Law journal 312; OC Ruppel 'Regional economic communities and human rights in East and Southern Africa' in A Bösl & J Diescho (eds) Human rights in Africa: Legal perspectives on their protection and promotion (2009) 275 -319.         [ Links ]
4 Kenya, Tanzania and Uganda were members of the original East African Community which was established in 1967 but was dissolved in 1977. The 1999 Treaty of the rejuvenated EAC was adopted in culmination of efforts commenced in 1991 to revive the EAC after a period of inactivity following the dissolution of the original organisation. The 1999 Treaty was amended in 2007. On 18 June 2007, Burundi and Rwanda acceded to the EAC Treaty, bringing the membership of the organisation to five states. The EAC Treaty is available at http//www.eac.int. (accessed 28 February 2010).
5 Art 5(2) of the EAC Treaty as amended.
6 Arts 5(3)(e) & (f) of the EAC Treaty as amended.
7 Converging states of the EAC are referred to as partner states.
8 Art 6(d) of the EAC Treaty as amended.
9 This sub-heading is used advisedly in the whole of this contribution in recognition of the fact that the term 'standard-setting' is more commonly associated with the adoption of treaties and, to a lesser extent, declarations by legislative and decisionmaking bodies of international organisations.
10 The EALA is the legislative organ of the EAC. Other organs of the EAC are the Summit, the Council of Ministers, the Co-ordinating Committee, the Sectoral Committees, the East African Court of Justice and the Secretariat. See generally art 9 of the 1999 EAC Treaty as amended.
11 25 November of each year is generally set aside as the International Day for the Elimination of Violence Against Women.
12 The EALA is the legislative arm of the EAC and has some form of actual legislative powers, but it is the Summit that drives the process of integration in the EAC.
13 The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (adopted in 2003 and entered into force in 2005) is generally referred to as the Maputo Protocol. See para 14 of the Resolution. Also see para 8 of the Resolution where Tanzania is congratulated for being a signatory to UNIFEM's 'Say No to Violence against Women Campaign'.
14 See para 15 of the Resolution.
15 Para 16 of the Resolution.
16 See generally F Banda 'Building on a global movement: Violence against women in the African context' (2008) 8 African Human Rights Law journal 1-22 on the highlights of the Maputo Protocol.
17 Para 17 of the Resolution.
18 Para 19 of the Resolution.
19 See para 4.5.2(i) of Report Ref EAC/SDF/10/2009 (Report of the Forum for EAC Ministers Responsible for Social Development) of 7 October 2009.
20 Para 4.5.2(iv) of Report Ref EAC/SDF/10/2009.
21 See paras 4.5.2 (v) and (vii) of Report Ref EAC/SDF/10/2009.
22 See paras 4.5.2(xii), (xiii) and (xiv) of Report Ref EAC/SDF/10/2009.
23 'EAC set to improve social protection for the disabled in East Africa' http://www.newstimeafrica.com (accessed 14 March 2010).
24 As above.
25 As above.
26 In August 2009, the African Commission hosted an experts' meeting in Accra, Ghana, to discuss modalities for the adoption of an African Protocol on Disabled Persons and Elderly Persons. As the commissioners are expected to act independent of the states that nominated them, the extent of state participation in the process can only be negligible. While there is a possibility of the AU Authority of Heads of State and Government taking over the process, there is also the possibility of the process ending up like the Declaration of Principles on Freedom of Expression.
27 See Katabazi & Others v Secretary-General of the East African Community & Another (2007) AHRLR 119 (EAC 2007)
28 By art 27(2) of the 1999 EAC Treaty as amended, the EACJ is expected to have a clear jurisdiction to hear human rights cases when a protocol to that effect is adopted by partner states. Although the process towards adopting such a protocol had begun as far back as 2007 with the EAC Secretariat-initiated draft, the protocol is yet to come into being.
29 See 'Bid to let EA Court of Justice to try genocide and human rights suspects' The East African http://www.theeastafrican.co.ke/news (accessed 14 March 2010).
30 As above.
31 See 'EAC chief justices propose harmonisation of regional legal systems' http:www.appablog.wordpress.com (accessed 14 March 2010).
32 'East Africa Court to try rights-abuse cases' http://allafrica.com/stories (accessed 13 March 2010).
33 See art 27 of the 1999 EAC Treaty as amended.
34 As at 15 March 2010, no EAC partner state had made the declaration required by art 34(6) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court of Human and Peoples' Rights.
35 See 'CJ touts for East Africa Court of Appeal' Daily News http://www.dailynews.co.tz (accessed 14 March 2010) on the call by the Chief Justice of Tanzania for the transformation of the EACJ into an East African Court of Appeal.
36 Civil society and African research organisations have been involved in research around this issue.
37 Issues in Kenya, Somalia, Sudan and the Democratic Republic of Congo have been touted as areas where the ICC should act. While Kenya is the only member of the EAC among the states listed, there is sufficient proximity to encourage any of these states to join the EAC and shut out the ICC. However, it is important to note that the clause that allows the ICC to exercise jurisdiction where national proceedings appear to be aimed at protecting perpetrators could also be applicable.
38 The original member states of ECOWAS were Benin, Burkina Faso, Côte d'Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Sierra Leone and Togo. With the accession of Cape Verde to the 1975 ECOWAS Treaty, membership of the Community grew to 16. In 2000, Mauritania withdrew its membership of the Community.
39 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.
40 Art 3(1) of the 1993 revised ECOWAS Treaty.
41 See para 4 of the Preamble to the 1993 revised ECOWAS Treaty.
42 See art 4 of the 1993 revised ECOWAS Treaty on the principles of ECOWAS.
43 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.
44 Supplementary Protocol A/SP1/01/05 Amending Protocol A/P1/7/91 relating to the Community Court of Justice adopted in 2005.
45 'Regional policy for rehabilitation of trafficked persons for adoption' http://news.ecowas.int/presseshow (accessed 31 March 2010).
46 As above.
47 The Policy is only the latest in the ECOWAS response to the challenge of trafficking in persons in the region. In 2001, ECOWAS adopted a plan of action to combat trafficking in persons in West Africa. This was followed in 2006 with the adoption of a joint plan of action with the Economic Community of Central African States to address the scourge of trafficking in the two regions.
48 See eg art 4(2)(g) of the Maputo (African Women's) Protocol and art 29 of the African Charter on the Rights and Welfare of the Child.
49 'ECOWAS Ministers adopt labour policy' http://news.ecowas.int/presseshow (accessed 31 March 2010).
50 As above.
51 'Council of Ministers urge respect for regional decisions and protocols' 045/2009 http://news.ecowas.int/presseshow (accessed 31 March 2010).
52 Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, adopted on 21 December 2001 and entered into force on 28 February 2008.
53 The UN Peace-Building Fund allocates money through two funding facilities, the Immediate Response Facility and the Peace-Building Recovery Fund. Both facilities fund initiatives that respond to imminent threats to the peace process and initiatives that support peace agreements and political dialogue; build or strengthen national capacities to promote coexistence and peaceful resolution of conflict; stimulate economic revitalisation to general peace dividends and re-establish essential administrative services. See http://www.unpbf.org/index (accessed 31 March 2010).
54 'ECOWAS condemns acts of repression in Guinea' 096/2009 http://news.ecowas.int/presseshow (accessed 31 March 2010).
55 See art 1(c) of the 2001 ECOWAS Protocol on Democracy and Good Governance.
56 'ECOWAS delegation in Niger' 047/2009 http://news.ecowas.int/presseshow (accessed 31 March 2010).
57 'ECOWAS suspends Niger from membership of organisation' 113/2009 http://news.ecowas.int/presseshow (accessed 31 March 2010).
58 The attitude of the AU to the Zimbabwe saga is a clear example.
59 In this regard, the AU and SADC responses to the impasse in Madagascar are instructive.
60 Protocol/P1/7/91 of 6 July 1991 on the ECOWAS Community Court of Justice.
61 See Supplementary Protocol A/SP1/01/05 Amending Protocol A/P1/7/91 relating to the Community Court of Justice adopted in 2005.
62 See the new art 9(4) in art 4 of the 2005 Supplementary Protocol.
63 Unreported Suit ECW/CCJ/APP/10/06, Judgment ECW/CCJ/JUG/01/09 delivered on 28 January 2009.
64 The other four defendants were all statutory officers of Nigeria and include the Attorney-General of Nigeria, the Chief of Naval Staff, the Inspector-General of Police and the Comtroller-General of the Nigerian Prisons.
65 See paras 1-8 of the Bayi case. All the applicants were subsequently discharged.
66 A claim that the seizure of their vessel was in violation of art 21(2) of the African Charter was abandoned.
67 Art 9(3) of the 2005 Supplementary Protocol is the regime's provision on temporal limitation of action. It provides that '[a]ction by or against a Community institution or any member of the Community shall be statute barred after three (3) years from the date when the right of action arose'.
68 See para 32 of the Bayi case.
69 See eg Chinhamo v Zimbabwe (2007) AHRLR 96 (ACHPR 2007) on how the African Commission interprets this provision.
70 Both provisions relate to the right to liberty.
71 Para 37 of the Bayi case.
72 Art 5 of the African Charter protects the right to dignity.
73 Para 42 of the Bayi case.
74 See para 51 of the Bayi decision.
75 Para 49 of the Bayi case.
76 Unreported Suit ECW/CCJ/APP/08/08. The case was against Nigeria as first defendant and the Nigerian Universal Basic Education Commission as second defendant.
77 See para 2 of the SERAP case (n 76 above). The rights claimed were allegedly in violation of arts 1, 2, 17, 21 and 22 of the African Charter.
78 Para 14 of the SERAP case.
79 See eg Essien v The Gambia, unreported Suit ECW/CCJ/APP/05/05.
80 See eg, ST Ebobrah 'The future of socio-economic rights litigation in Nigeria' in F Emiri (ed) Called to the law: Essays in honour of Late Justice E Igoniwari (2009). The debate is sparked off by the fact that sec 6(6)(c) of the 1999 Nigerian Constitution declares that judicial powers vested in Nigerian courts 'shall not, except as otherwise provided in this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constiution'.
81 Para 17 of the SERAP case.
82 Para 18 of the SERAP case.
83 Para 19 of the SERAP case.
84 Para 30 of the SERAP case.
85 Para 34 of the SERAP case.
86 Socio-Economic Rights and Accountability Project v Nigeria (2008) AHRLR 108 (ACHPR 2008).
87 Unreported Case ECW/CCJ/APP/07/08; ADD NO ECW/CCJ/APP/11/09.
88 Hissène Habré ruled Chad from 1982 to 1990 when he was overthrown in a military coup. Since he was deposed, Mr Habré has lived in asylum in Senegal where several attempts have been made by alleged victims of his regime's repression to seek justice against him in Senegalese and Belgian courts.
89 Communication 181/2001, Guengueng v Senegal, decision of 17 May 2006. See para 7 of the Habré ruling.
90 See para 14 of the Habré ruling. It was also subtly suggested that Senegal colluded with the applicants as there was no explanation for the access that the applicants had to the processes filed by Mr Habré before the court.
91 Paras 18-21 of the Habré ruling.
92 See para 21 of the Habré ruling where the court stated: '[L]a Cour, au regard de la valeur d'obligation erga omnes des droits fondamentaux de l'homme affirmes dans plusieurs conventions de portée universelle et régionale, estime que le droit au recours, une fois reconnu, ne peut souffrir de limitation tendant à le rendre ineffectif.'
93 Para 23 of the Habré ruling. The court also saw the right to intervene as an erga omnes obligation.
94 Para 27 of the Habré ruling.
95 Para 30 of the Habré ruling.
96 Paras 32-34 of the Habré ruling.
97 Unreported Suit ECW/CC/APP/01/09; Arrêt ECW/CCJ/JUG/04/09.
98 Paras 4-8 of the Amouzou case. Also see paras 9-10 of this case.
99 Generally see paras 12-26 of the Amouzou case.
100 See paras 27 & 34 of the Amouzou case.
101 See para 58 of the Amouzou case.
102 Para 60 of the Amouzou case.
103 Paras 76-77 of the Amouzou case.
104 See para 81 of the Amouzou case. This is similar to the position that the ECCJ took in Koraou v Niger (2008) AHRLR 182 (ECOWAS 2008).
105 Para 95 of the Amouzou case.
106 See paras 83-90 of the Amouzou case.
107 Paras 99-104 of the Amouzou case.
108 Unreported Suit ECW/CCJ/APP/02/09;Arrêt ECW/CCJ/JUD/05/09, delivered on 17 December 2009.
109 Paras 6-11 of the CNDD case (n 108 above).
110 Para 12 of the CNDD case.
111 See art 1(h) of the ECOWAS Democracy Treaty which states that 'each individual or organisation shall be free to have recourse to the common or civil law courts, a court of special jurisdiction, or any other national institution established within the framework of an international instrument on human rights, to ensure the protection of his/her rights'.
112 Para 29 of the CNDD case.
113 n 74 above.
114 See paras 55-56 of the CNDD case.
115 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, Namibia, Mozambique, Swaziland, South Africa, Tanzania, Zambia and Zimbabwe.
116 See art 5(1)(a) of the Consolidated SADC Treaty. The Treaty is available at http://www.sadc.int/index (accessed 31 March 2010).
117 Generally see art 5 of the Consolidated SADC Treaty.
118 Art 4(c) of the SADC Treaty as amended.
119 Eg, SADC has a region-specific Fundamental Rights Charter and a Protocol on the rights of women.
120 The SADC Tribunal is the judicial organ of SADC. Other organs of the Community are the Summit of Heads of State and Government; the Organ on Politics, Defence and Security Co-operation; the Council of Ministers; the Integrated Committee of Ministers; the Standing Committee of Officials; the Secretariat; and the SADC National Committees.
121 See Record of SADC Ministerial Meeting of May 2009 (on file with author).
122 A set of non-binding principles adopted in 2004.
123 The Botswana elections took place on 16 October 2009 and the mission was launched on 8 October 2009. The mission to Mozambique was launched on 18 October 2009 while the elections took place on 28 October 2009. The elections in Namibia took place on 27 and 28 November 2009.
124 The reports of the observer missions are on file with the author.
125 'SADC suspends Madagascar' http://www.mg.co.za/article/2009-03-31-madagascar-neighbours-mull-sanction (accessed 27 February 2010).
126 See Mike Campbell (Pvt) Limited & Others v Zimbabwe (2008) AHRLR 199 (SADC 2008) (Campbell case) in which judgment was delivered on 28 November 2008.
127 Unreported Case SADC (T) 03/2009.
128 2009 Campbell case 2.
129 Unreported Case SADC (T) 05/2008.
130 See NGO Forum case 3.
131 Unreported Case SADC (T) 07/2008.
132 Tembani case 2.
133 Tembani case 12.
134 As above.
135 See Ebobrah (n 3 above).
136 See Tembani case 24.