RECENT DEVELOPMENTS

Human rights developments in African sub-regional economic communities during 2011

Solomon T Ebobrah

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

SUMMARY

During 2011 there were both negative and positive developments in the human rights work of African sub-regional economic communities. From the negative perspective, the travails of the Southern Africa Development Community Tribunal in 2011 stand out as the most notorious as they brought about a limitation in the effectiveness of this erstwhile budding human rights regime in Southern Africa. Arguably, as a consequence of the suspension of the Tribunal, there was very little human rights activity from Southern Africa to report on. Thus, the focus in this contribution is squarely on developments that occurred in the human rights regimes in East Africa and West Africa. Significantly, there was an increase in human rights litigation activity before the sub-regional courts in both regions. Activities in the judicial sector and other non-juridical human rights activities in the respective regimes of the East African Community and the Economic Community of West African States are analysed critically in this contribution. Developments during 2011 demonstrate the growing confidence of actors and institutions in the human rights regimes of the two sub-regions.

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^* LLB (Rivers State), LLM (Human Rights and Democratisation in Africa), LLD (Pretoria); sebobrah@yahoo.co.uk I am very grateful to the unknown reviewers for the very incisive comments that helped to shape this contribution. I accept responsibility for any errors in this work.
1 The idea of the sub-regional realisation of human rights emerged with the resurgence of economic regionalism in the late 1990s as evidenced in the revision of the treaties of regional economic communities or the adoption of new treaties. However, it was the increased involvement of the ECOWAS Community Court of Justice in judicial protection of human rights in 2005 that heralded the entry of RECs in the field of continental protection of human rights that was previously the exclusive preserve of the African Union. Generally, see F Viljoen International human rights law in Africa (2012) 469 for a discussion of the realisation of human rights through sub-regional institutions in Africa.
2 Fortunately, the increased use of sub-regional human rights realisation mechanisms does not appear to have negatively impacted on the demands on continental structures such as the African Commission on Human and Peoples' Rights.
3 Eg, the ECCJ is reported to have received 100 cases between 2005 and 2011. See S Ojelade 'ECOWAS Community Court handles 100 cases in six years -President', http://www.nationaldailyngr.com/index.php?option=com_ content&view=article&id=2378:ecowas-community-court-handled-100-cases-in-six-years-president&catid=372:news-extra&Itemid=617 (accessed 15 May 2012).
4 Eg, the development of strategies on the platform of the African Union has commonly focused on the EAC, ECOWAS and SADC regimes. Similarly, donors and development partners from outside the continent have been more interested in understanding and supporting the human rights work in these three organisations.
5 In May 2011, the operations of the SADC Tribunal were suspended and the Tribunal all but wound up.
6 See ST Ebobrah 'Human rights developments in African sub-regional economic communities during 2010' (2011) 11 African Human Rights Law Journal 216 for a brief introduction of the nature of the EAC human rights regime.         [ Links ]
7 By art 9 of the 1999 EAC Treaty (as amended), the organs of the EAC include the Summit, the Council, the Co-ordination Committee, the Sectoral Committees, the East African Court of Justice, the East African Legislative Assembly and the Secretariat.
8 The classification of activities under these headings is not rigid and is not to suggest that these are standard labels for human rights activities. It has been done liberally (as in previous years) to easily capture connected human rights or rights-related activities under the same heading for the sake of convenience. Hence, a term like 'standard setting' is used here to capture all activities relating to setting new standards through treaty or policy adoption as well as activities aimed at re-affirming existing human rights standards.
9 Art 5 of the 1999 EAC Treaty as (amended) enumerates the objectives of the EAC.
10 See Ebobrah (n 6 above) 216 220-221.
11 The EAC Deputy Secretary-General in charge of Political Federation draws this link probably to justify intensified action in this area. See 'EAC - COMESA - IGAD Observer Mission Interim Report of 2011 General Elections in the Republic of Uganda', http://www.eac.int/about-eac/eacnews/567-press-release-eac-comesa-igad-oberver-mission-interim-report-general-election-republic-of-uganda-2011.html (accessed 15 May 2012).
12 Pressrelease'StakeholdersdiscussdraftGoodGovernanceProtocolandBillofRightsin Burundi'http://www.eac.int/about-eac/eacnews/574-press-release-stakeholders-discuss-draft-good-governance-protocol-and-bill-of-rights-in-burundi.html (accessed 15 May 2012).
13 As above.
14 As of the time of writing, the East African Legislative Assembly had passed the Bill of Rights into law. See 'EALA passes bill on human rights', http://www.eac.int/index.php?option=com_content&view=article&id=988:eala-passes-bill-on-human-rights&catid=146:press-releases&Itemid=194 (accessed 28 May 2012).
15 As above.
16 See 'EAC Protocol on Good Governance in final stages' http://www.eac.int/about-eac/eacnews/633-protocol-on-good-governance-in-f¡nal-stages.html (accessed 15 May 2012).
17 'EAC heads of NECs discuss best practices in conducting credible elections' http://www.eac.int/about-eac/eacnews/613-necs-discuss-best-practices.html (accessed 15 May 2012).
18 'AC Conference on good governance opens in Kampala' http://www.eac.int/about-eac/eacnews/738-eac-conference-on-good-governance-opens-in-kampala-tomorrow.html (accessed 15 May 2012).
19 'EAC, COMESA, IGAD plan joint election observation for Uganda' http://www.eac.int/about-eac/eacnews/533-joint-election-observation-for-uganda.html (accessed 15 May 2012).
20 See the comments of the EAC Deputy Secretary-General in charge of Political Federation (n 11 above).
21 Adopted by the AU in 2007, reproduced in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2007) 108.
22 See art 19 of the Democracy Charter.
23 Arts 9(e) & 23 1999 EAC Treaty.
24 The case of Katabazi & Others v Secretary-General of the EAC & Others was the first case where the EACJ faced the challenge of addressing complaints of human rights violations in spite of the absence of a human rights jurisdiction.
25 Unreported suit, reference 3 of 2010, ruling delivered on 29 June 2011. It must be noted that the significance of the findings in this case have been greatly watered down by the fact that the decision has been overruled in the appellate decision in Attorney-General of Republic of Kenya v Independent Medical Legal Unit, Appeal 1 of 2011, judgment of 15 March 2012. This later case falls outside of the temporal scope of this article, hence it has not been discussed.
26 The officials include the Attorney-General (official legal representative of the state), the Minister of Internal Security of the Republic of Kenya, The Chief of General Staff of the Republic of Kenya and the Commissioner of Police of the Republic of Kenya.
27 Art 30(1) of the 1999 EAC Treaty (as amended) provides that, subject to art 27 of the Treaty, any resident of a partner state may refer for the determination of the EACJ, the legality of any Act, regulation, directive, decision or action of a partner state or an institution of the Community on the ground that such was unlawful or is an infringement of the provisions of the Treaty.
28 (2007) AHRLR 119 (EAC 2007).
29 As ST Ebobrah 'Litigating human rights before sub-regional courts in Africa: Prospects and challenges' (2009) 17 African Journal of International and Comparative Law 91 argued,         [ Links ] it was evident from Katabazi that, in the absence of an unequivocal grant of human rights jurisdiction, the EACJ treads on a thin and delicate line when it is faced with cases alleging human rights violations. Hence, practitioners and litigants need to carefully couch claims before the court whenever a human rights violation is involved.
30 See p 6 of the IMU decision.
31 As at the time of writing, the Appellate Division of the EACJ, sitting on appeal over the present case, had criticised the First Instance Division for failing to properly analyse the basis for its claim of jurisdiction beyond the 'lone reference to the Katabazi decision'. Even though the Appellate Division considered Katabazi to be sound law, it felt that the question of jurisdiction raised issues of mixed law and fact and therefore required deeper evaluation and analysis. See Attorney-General of Republic of Kenya (n 25 above).
32 See p 10 of the IMU decision.
33 See p 7 of the IMU decision.
34 See, eg, the case of Ukor v Layele, unreported Suit ECW/CCJ/APP/01/04, as well as the cases of David v Uwechue, unreported Suit ECW/CCJ/APP/04/09 and SERAP v The President of Nigeria & 8 Others, unreported Suit ECW/CCJ/APP/07/10 (discussed by Ebobrah (n 6 above) 216).
35 See David v Uwechue (n 34 above).
36 Unreported, reference 1 of 2010, judgment delivered on 30 June 2011. The 2nd, 3rd and 4th respondents are the Attorney-General of Uganda, one Hon Sam Njuba (the winner of the election) and the Electoral Commission of Uganda.
37 See p 2 of the Sebalu decision.
38 See p 16 of the Sebalu decision.
39 See pp 17 to 19 of the Sebalu decision.
40 See p 19 of the Sebalu decision.
41 See p 32 of the Sebalu decision.
42 See p 29 of the Sebalu decision.
43 See p 41 of the Sebalu decision.
44 Reference 2 of 2010, ruling delivered on 29 September 2011.
45 See p 1 of the Mjawasi decision.
46 See p 3 of the Mjawasi decision.
47 See pp 5 & 6 of the Mjawasi decision.
48 See p 8 of the Mjawasi decision.
49 Unreported, reference 7 of 2010, judgment delivered 30 November 2011.
50 See p 24 of the Ariviza judgment.
51 Community Court of Justice ECOWAS Law Reports (2004-2009) 35.
52 Unreported, role general. ECW/CCJ/APP/01 /09.
53 See pp 24 to 25 of the Ariviza judgment.
54 See p 30 of the Ariviza decision.
55 Unreported, reference 8 of 2010, judgment of 1 December 2011.
56 See pp 11 to 12 of the Plaxeda-Rugumba decision.
57 As above.
58 Para 23 of the Plaxeda-Rugumba case.
59 As above.
60 As above (my emphasis).
61 Para 24 of the Plaxeda-Rugumba case.
62 See generally Viljoen (n 1 above) 498; 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 ]
63 The revised ECOWAS Treaty was adopted in 1993.
64 Art 4(g) 1993 revised ECOWAS Treaty.
65 The ECOWAS Commission is one of the main institutions of ECOWAS and the nerve centre of most of the organisation's activities. By art 6 of the 1993 revised ECOWAS Treaty, other institutions 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, the Fund for Co-operation, Compensation and Development and the Specialised Technical Commissions.
66 http://news.ecowas.int/presseshow.php?nb=046&lang=en&annee=2011 (accessed 15 May 2012).
67 http://www.comm.ecowas.int/ (accessed 15 May 2012).
68 'ECOWAS observers deployed to supervise the 2011 legislative and presidential elections in Niger', http://www.comm.ecowas.int/ (accessed 15 May 2012).
69 In early 2010, then President Mamadou Tandja of Niger was overthrown by a military coup after he tried to amend the Constitution of Niger in order to extend his stay in power beyond the stipulated two terms.
70 'Former Liberian leader to head ECOWAS observer mission to Nigeria's presidential election' http://www.comm.ecowas.int/ (accessed 15 May 2012); 'ECOWAS Head of Mission advises Cape Verdeans on run-off presidential elections' http://www.comm.ecowas.int/ (accessed 15 May 2012).
71 Reports of ECOWAS election observation missions are available at the ECOWAS Commission, Abuja, Nigeria.
72 'ECOWAS statement on the 24 November 2011 presidential elections in The Gambia', http://www.comm.ecowas.int/ (accessed 15 May 2012).
73 As above.
74 The decision against The Gambia in the case of Ebrimah Manneh v The Gambia, Community Court of Justice, ECOWAS Law Report (2004-2009) 181 has remained unenforced as The Gambia declined to comply.
75 The ECCJ was originally established by art 4(1)(d) of the 1975 ECOWAS Treaty as the 'Tribunal of the Community'.
76 Protocol A/P.1/7/91 adopted and provisionally entered into force in July 1991.
77 Supplementary Protocol A/SP.1/01/05 Amending Protocol A/P.1/7/91 relating to the Community Court of Justice.
78 Unreported Role Generale ECW/CCJ/APP/18/08; Arret ECW/CCJ/J U D/01 /11, judgment delivered on 9 February 2011.
79 The Union Economique et Monetaire Ouest Afrique (UEMOA) is the monetary and economic union of francophone West African countries.
80 See paras 1 to 6 of the Aboubacar decision.
81 Paras 15 to 19 of the Aboubacar decision.
82 Paras 20 to 21 of the Aboubacar decision.
83 Paras 31 to 35 of the Aboubacar decision.
84 Unreported Role Generale ECW/CCJ/APP/12/09, Arret ECW/CCJ/JUD/11.
85 See para 29 of the Ibrahim decision.
86 Para 30 of the Ibrahim decision.
87 Paras 37 to 45 of the Ibrahim decision.
88 See paras 50 & 51 of the Ibrahim decision.
89 Unreported consolidated Suit ECW/CCJ/APP/17/10; ECW/CCJ/APP/01 /11, judgment ECW/CCJ/ADD/01 /11, judgment of 18 March 2011.
90 The Foundation Ivorienne pour l'Observation et la Surveillance des Droits de l'Homme et de la Politique (FIDHOP), the Actions pour la Protection des Droits de l'Hommes (APDH) and the Fideles a la Democratie et a la Nation de Cóte d'Ivoire (FIDENACI) combined to submit the application to the ECCJ.
91 See para 4 of the Mrakpor ruling.
92 See paras 5 to 6 of the Mrakpor ruling.
93 Para 12 of the Mrapkor ruling.
94 Para 15 of the Mrakpor decision.
95 Suit ECW/CCJ/APP/08/09; Ruling ECW/CCJ/APP/07/10, ruling delivered on 10 December 2010.
96 See para 17 of the Mrakpor decision.
97 See para 29 of the Mrakpor decision.
98 Unreported Role Generale ECW/CCJ/APP/07/09, Arret ECW/CCJ/J U D/05/11, judgment of 9 May 2011.
99 See paras 4 to 15 of the CDD decision.
100 Para 18 of the CDD decision.
101 (2008) AHRLR 182 (ECOWAS 2008).
102 Para 19 of the CDD decision.
103 Para 22 of the CDD decision.
104 Para 24 of the CDD decision.
105 Paras 27 to 28 of the CDD decision.
106 Para 30 of the CDD decision.
107 Para 31 of the CDD decision.
108 Unreported Suit ECW/CCJ/APP/03/09, judgment ECW/CCJ/RUL/05/11, ruling delivered on 1 June 2011.
109 Paras 1 to 4 of the Akeem ruling.
110 Para 9 of the Akeem ruling.
111 See para 29 of the Akeem ruling.
112 Unreported Gen List ECW/CCJ/APP/07/08; judgment ECW/CCJ/APP/02/10, ruling delivered 14 May 2010.
113 Paras 34 to 36 of the Akeem ruling.
114 Unreported Suit ECW/CCJ/APP/05/08, judgment ECW/CCJ/JUD/07/11, judgment of 8 July 2011.
115 Para 5 of the Ocean King Limited decision.
116 Paras 7 to 99 of the Ocean King Limited decision.
117 Paras 39 to 41 of the Ocean King Limited decision.
118 Para 47 of the Ocean King Limited decision.
119 Unreported Suit ECW/CCJ/APP/01 /08, judgment ECW/CCJ/JUD/06/11, judgment of 8 July 2011.
120 Paras 15 to 16 of the Starcrest Investment decision.
121 Unreported Role Generale ECW/CCJ/APP/12/10, Arret ECW/CCJ/JUD/09/11, judgment of 7 October 2011.
122 Paras 25 to 45 of the Amegabvi decision.
123 Paras 49 to 53 of the Amegabvi decision.
124 Para 55 of the Amegabvi decision.
125 Paras 58 to 67 of the Amegabvi decision.
126 Eg, such fears were expressed to the author during a visit to the seat of the EACJ in 2010. Similar fears have also been expressed by former students of the LLM (Human Rights and Democratisation in Africa) programme of the Centre for Human Rights, University of Pretoria in 2010.