Human rights developments in African sub-regional economic communities during 2010

Solomon T Ebobrah

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

SUMMARY

In 2010, judicial and non-juridical human rights developments continued to grow within the framework of three of the most active regional economic communities in Africa, albeit at different paces. During the year, the East African Community and Economic Community of West African States structures sought to consolidate their existing human rights work. The East African Court of Justice tried to establish itself as a human rights court, making pronouncements that will shape the direction of human rights litigation before it. The EACJ continued to assert its role despite the non-adoption of the protocol required to expressly confer human rights jurisdiction upon it. In Southern Africa, while the Summit endeavoured to shape the democratic culture in the region, the Southern African Development Community Tribunal faced a serious challenge to its continued existence and operation as a forum for human rights realisation. These developments are analysed against the background of their overall significance to human rights in Africa.

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* LLB (Rivers State), LLM (Human Rights and Democratisation in Africa), LLD (Pretoria); sebobrah@yahoo.co.uk
1 A zero draft of the Human Rights Strategy for Africa emerged some time in 2010 (on file with author).
2 The Colloquium of the African Human Rights Court and Similar Institutions took place in Arusha, Tanzania, between 4 and 6 October 2010.
³ As noted by F Viljoen International human rights law in Africa (2007) 488, the AU recognises eight RECs as building blocks of the African Economic Community (AEC) and, by extension, the AU. However, it has to be noted that sub-regional organisations such as the International Conference on the Great Lake Region (ICGLR) have also developed sub-regional human rights standards that are worthy of note even though no significant institutional human rights activity is evident in its organisational structure.
⁴ See, generally, ST Ebobrah 'Human rights developments in the African sub-regional economic communities during 2009' (2010) 10 African Human Rights Law Journal 233.         [ Links ]
5 Generally, see B Hettne 'The new regionalism: A prologue' in B Hettne et al (eds) National perspectives on the new regionalism in the South (2000).         [ Links ]
6 The EAC was initially founded by Kenya, Tanzania and Uganda in 1967 but became dissolved in 1977 following disputes between the partner states. With the new wave of regionalism partly prompted by reactions to globalisation, the EAC was revived with the adoption of a new founding Treaty in 1999. This Treaty was first amended in 2006 and later in 2007. With the accession of Burundi and Rwanda to the Treaty of the EAC, the Community now has five partner states. The Treaty of the EAC (as amended) is reproduced in S Ebobrah & A Tanoh (eds) Compendium of African sub-regional human rights documents (2007) 37.
7 See art 5 of the 1999 Treaty of the EAC as amended.
8 In 2010, the EAC adopted a Protocol to formally create a Common Market, thereby effectively moving into the second major phase of its existence.
⁹ Some would argue, based on the theory of 'new regionalism', that there is no need for such express statement of objective to enable a regional organisation to engage in human rights work.
¹⁰ See, generally, art 5(3)(b), (d) (e) and (f) of the 1999 EAC Treaty as amended.
11 Generally, the term 'standard setting' is associated with the adoption of treaties and, to a lesser extent, declarations by legislative and decision-making bodies of international organisations. However, owing to the limited scope of human rights standard setting in African sub-regional organisations, the term is liberally applied in this contribution to cover every activity that sets or re-affirms standards even in non-binding contexts.
12 'Resolution to urge partner states to fight FGM/C' press statement released by the Public Relations Department of the EAC.
13 The African Women's Protocol was adopted in 2003 on the platform of the AU and entered into force in 2005. It is reproduced in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2010) 61.
14 The African Charter on Democracy, Elections and Governance was adopted in 2007. It is yet to enter into force.
15 'Heads of Human Rights Commissions Recommend Draft EAC Bill of Rights to Council of Ministers', press release by the Public Relations Department of the EAC. As at the time of writing, the draft bill was still only with the EAC Secretariat.
¹⁶ The EAC Good Governance Protocol is currently undergoing review by stakeholders in EAC partner states. E-mail communications between the author and an official at the EAC Secretariat give the impression that it is only after the current round of consultations that the document would be released to the general public.
¹⁷ By art 27(2) of the 1999 EAC Treaty (as amended), the human rights jurisdiction of the EACJ is made subject to the adoption of a protocol to that effect by partner states.
18 'Conference designs robust resolutions to guide PwD's engagement with EAC partner states, private sector, EAC organs and institutions and national parliaments', press release by the Public Relations Department of the EAC Secretariat.
19 As above.
20 'EAC, ICGLR sign MoU' press release by the Public Relations Department of the EAC Secretariat.
21 As above.
22 The AU Convention for the Protection and Assistance of Internally-Displaced Persons was adopted in 2009 and is yet to enter into force.
23 'EAC Election Observer Mission for legislative elections in Burundi', press release by the Public Relations department of the EAC Secretariat.
24 'EAC Election Observer Mission to the 2010 general elections in the United Republic of Tanzania', press release by the Public Relations department of the EAC Secretariat.
²⁵ See the interim statement released by the EAC Election Observer Mission (on file with author).
26 See the press release announcing the Mission (on file with author). The first three provisions listed relate to 'good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality as well as the recognition, promotion and protection of human rights'.
27 See art 27(1) of the 1999 EAC Treaty (as amended).
28 Art 27(2) 1999 EAC Treaty (as amended).
²⁹ See the decision in Katabazi & Others v The Secretary-General of EAC & Others Ref 1 of 2007 (unreported) http://www.safiii.org/ea/cases/EACJ/2007/3.html (accessed 1 April 2011).
³⁰ See AG Kenya vAnyang Nyoung Application 1.
31 Ariviza & Another v AG Kenya & Others Application 3 of 2010 (arising out of Reference 7) 2.
32 Ariviza (n 31 above) 9.
³³ See the Katabazi case (n 29 above).
34 The African Commission is not a court and therefore cannot be a substitute for the EACJ, even though it is also an international forum for human rights litigation in Africa.
35 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.
36 Art 3(1) of the 1993 revised ECOWAS Treaty.
37 See art 4 of the 1993 revised ECOWAS Treaty on the principles of ECOWAS.
38 The ECOWAS Commission is the Executive Secretariat of the Community and hosts most of the institutions and executive activities of the Community.
39 'Strategic partners call for roadmap and work plan to combat trafficking of women and children in West Africa' http://news.ecowas.int/presseshow.php?nb=024&lang=en&annee=2010 (accessed 31 March 2011).
40 As above.
41 'African Union campaign against trafficking in persons launched for ECOWAS' http://news.ecowas.int/presseshow.php?nb=050&lang=en&annee=2010 (accessed 31 March 2011).
42 As above.
43 'ECOWAS joins AU, IOM to extend fight against human trafficking' http://news.ecowas.int/presseshow.php?nb=049&lang=en&annee=2010 (accessed 28 March 2011).
44 'ECOWAS, UNCHR, ADF explore issues on humanitarian dimension to regional peace and development project' http://news.ecowas.int/presseshow.php?nb=038&lang =en&annee=2010 (accessed 31 March 2011).
45 As above.
⁴⁶ 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. By art 45 of the ECOWAS Protocol on Democracy and Good Governance, member states of ECOWAS are liable to sanctions in the event that a democratic government is overthrown.
⁴⁷ In late 2009, the military in Niger overthrew the civilian government of Mamadou Tandja following that government's attempt to amend the Constitution to extend its term of office.
48 'ECOWAS deploys an observation mission to monitor the 2010 presidential elections in Togo' http://news.ecowas.int/presseshow.php?nb=024&lang=en&annee=2010 (accessed 31 March 2011).
⁴⁹ See art 3 of the 2001 ECOWAS Protocol on Democracy and Good Governance.
⁵⁰ 'The 31st October 2010 presidential election in Cóte d'Ivoire was held in a peaceful environment' http://news.ecowas.int/presseshow.php?nb=024&lang=en&annee=2010 (accessed 31 March 2011).
51 'ECOWASwelcomestheproperconductofthesecondroundofthepresidentialelections in Guinea' http://news.ecowas.int/presseshow.php?nb=024&lang=en&annee=2010 (accessed 31 March 2011).
52 Originally established in the 1975 ECOWAS Treaty, the ECCJ was operationalised by Protocol /P1/7/91 of 6 July 1991 on the ECOWAS Community Court of Justice adopted by ECOWAS member states in 1991.
53 Supplementary Protocol A/SP.1/01/05 Amending Protocol A/P.1/7/91 relating to the Community Court of Justice adopted in 2005.
54 Gen List ECW/CCJ/APP/03/09; judgment ECW/CCJ/JUD/01/10, judgment delivered 17 February 2010.
55 Art 33 of the Rules relates to the form of applications before the ECCJ. Subpara 1 requires the name and address of an applicant to be included on the processes filed.
56 Art 10(d) of the 2005 Supplementary Protocol grants individual access in human rights cases in so far as the application is not anonymous and had not instituted before another international court.
57 Para 26 of the judgment in the Garba case (n 54 above).
58 Para 28.
59 Gen List ECW/CCJ/APP/07/08;judgment ECW/CCJ/APP/02/10, ruling delivered 14 May 2010.
60 See Ebobrah (n 4 above).
61 The French term chose jugée has been roughly translated here as res judicata.
62 Suit ECW/CCJ/APP/04/09; judgment ECW/CCJ/RUL/03/10, ruling delivered 11 June 2010.
63 Under the original structure, the head of administration in ECOWAS was known as the Executive Secretary rather than the President of the ECOWAS Commission as the office is now known.
64 See paras 1 to 6 of the Uwechue ruling (n 62 above).
65 Art 10(c) is open to challenges to acts and inactions of a Community official which violate the rights of an individual or corporate body.
66 Paras 24 to 34 of the Uwechue ruling (n 62 above).
67 Para 34 of the Uwechue ruling (n 62 above).
68 In the earlier case of Ukor v Layele (2005), unreported Case ECW/CCJ/APP/01/04, the ECCJ entertained a case involving only individuals even though the case was dismissed on some other grounds. See 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 307 321-322 for an initial critique of the Court's decision to receive cases between individuals.
69 Paras 35 to 38 of the Uwechue ruling (n 62 above).
70 Para 37 of the Uwechue ruling.
71 As above.
⁷² Para 38 of the Uwechue ruling (n 62 above).
73 See para 39.
74 Paras 41 to 43.
75 See the formulation in art 3 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, reproduced in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2010) 41. Professors Laurence Helfer and Karen Alter, at a meeting in Abuja, March 2010, confirm that there is already a growing feeling among some stakeholders that by dicta such as the present one, the ECCJ is taking a position that it will only apply treaties ratified by states before it.
76 See paras 42 and 43 of the Uwechue ruling (n 62 above).
77 See n 2 above.
78 Para 46 of the Uwechue ruling (n 62 above).
79 As above.
80 (1988) Ser C No 4.
⁸¹ Role Gen No ECW/CCJ/APP/05/09; Arret No ECW/CCJ/JUD/05/10, judgment of 18 November 2010.
82 Paras 16 & 17 of the Tandja decision (n 81 above).
83 See n 62 above.
84 Suit ECW/CCJ/APP/08/08, judgment ECW/CCJ/JUD/06/08, judgment delivered on 27 October 2008.
85 See p 13 of the Tandja decision (n 81 above).
86 See pp 11 & 12 of the Tandja decision.
87 p 17 of the Tandja decision.
88 As above. See the definition of torture and cruel, inhuman and degrading treatment as set out in the reports of the UN Special Rapporteur on Torture, Cruel, Inhuman and Degrading Treatment.
⁸⁹ p 18 of the Tandja decision (n 81 above).
⁹⁰ p 2 of the Tandja decision.
91 Role Gen ECW/CCJ/APP/07/08; Arret ECW/CCJ/JUD/06/10, judgment delivered on 18 November 2010. The decision was delivered in French.
92 The main aspects of the claim are summarised in the section on the Habré ruling (n 59 above).
⁹³ Para 27 Habré case (main judgment) (n 91 above).
⁹⁴ Paras 51 to 58 Habré case.
95 Suit ECW/CCJ/APP/12/07;judgment ECW/CCJ/JUD/07/10, judgment delivered 30 November 2010. It would be recalled that in 2009, the ECCJ overruled the preliminary objection raised by the defendants in this case. See Ebobrah (n 4 above).
96 The exchange rate of the Nigerian Naira to the US dollar is currently -N150.
⁹⁷ See paras 10 to 11 of the SERAP case (n 95 above).
98 Para 21 SERAP case (n 95 above).
99 Para 19.
¹⁰⁰ Para 28.
¹⁰¹ Para 31.
102 Suit ECW/CCJ/APP/08/09;Ruling ECW/CCJ/APP/07/10, ruling delivered on 10 December 2010.
103 Para 3 SERAP case 2 (n 102 above).
104 Para 26 SERAP case 2 (n 102 above).
¹⁰⁵ Paras 52 to 64 & 71 SERAP case 2 (n 102 above). It is worth noting that no appearance was entered on behalf of the state. Hence, all the parties before it were non-state actors.
106 The ECCJ referred to the popular SERAC vNigeria decision of the African Commission to support the 'usefulness of actio popularis'.
¹⁰⁷ Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001).
¹⁰⁸ Suit ECW/CCJ/APP/11 /07; judgment ECW/CCJ/JUD/08/10.
¹⁰⁹ Para 27 Saidykiian case (n 108 above).
¹¹⁰ Paras 43 to 44.
¹¹¹ See art 5(1)(a) of the Consolidated SADC Treaty. The Treaty is available at http://www.sadc.int/index (accessed 31 March 2011).
112 Art 4(c) SADC Treaty as amended.
¹¹³ Inside SADC, Issue 2, May 2010.
114 As above.
115 As above.
116 Madagascar and Zimbabwe are examples.
117 See report at http://www.reuters.com/article/2010/01/15/idUSLDE60E005 (accessed 31 March 2011).
118 The Zimbabwean 'No elections unless free and fair' http://www.thezimbabwean.co.uk/index.php?option=com_content&view=article&id=36161:no-elections-unless-free-and-fair-says-sadc&catid=69:sunday-top-stories&Itemid=30 (accessed 31 March 2011).
119 Adopted in 2000 and entered into force without the originally required number of ratifications as the Protocol was annexed (or understood to be annexed) to the amended SADC Treaty in 2001.
¹²⁰ See Campbell & Another v Zimbabwe (Campbell interim 2007) SADC (T) Case 2/2007, ruling of 13 December 2007 2. Also see SADC (T) Case 2/2007 in which judgment was delivered on 28 November 2008.
121 According to art 32 of the SADC Tribunal Protocol, the state where a decision of the Tribunal is to be enforced has the responsibility to enforce such a decision in accordance with its foreign judgment enforcement rules.
122 The SADC Summit consists of the heads of state and government of the SADC member states and is the supreme policy-making organ of the organisation. The referral to the Summit by the Tribunal took place in July 2008.
123 The legal opinion submit by Zimbabwe is on file with the author.
124 Record of the August 2010 meeting (on file).
¹²⁵ Case SADC (T 01/2009), ruling delivered 11 June 2010.
¹²⁶ p 4 Cimexpan ruling (n 125 above).
127 As above.
128 See, eg, Africa Legal Aid v The Cambia (2000) AHRLR 119 (ACHPR 2000); Abubakar v Ghana (2000) AHRLR 124 (ACHPR 1996).
129 Case SADC (T) 01/2010.
130 n 129 above, 4.