Almost every country in the world is experiencing a narrowing of peoples’ rights and freedoms because of government restrictions imposed in the name of fighting the Covid-19 pandemic. But will these governments willingly give up their new powers as the contagion eases? And if not, where should the people of a state look for help, if their own courts uphold these infringements of fundamental rights? In Africa, the African Court on Human and Peoples' Rights would be the court to adjudicate serious rights issues like these. But the question is whether, come the end of the pandemic, the court will be in a position to help. Very few of the 55 members of the African Union have fully signed up to the court in the sense of allowing individuals and NGOs to bring cases of human rights violations for adjudication by that forum. And those numbers have dropped in the past few months, weakening the court further. The case of Malawi human rights activist Charles Kajoloweka should, however, persuade people of the need to protect the African Court from any further withdrawals - and of the need to lobby for more countries to submit to its jurisdiction.
Judgment of Supreme Court, Malawi, awarding costs against Charles Kajoloweka
Ruling by African Court on Human and Peoples' Rights on jurisdiction to hear Kajoloweka matter and staying enforcement of Malawi's order
When it comes to rule of law, constitutionalism and the judiciary, Malawi is perhaps the most interesting African country right now. In a series of cases, the courts have found there is no proper basis in existing laws for lockdown regulations, so Malawi is not experiencing the Covid-19 paralysis of many other states in the region. Then, last week, the Supreme Court affirmed an earlier lower court decision nullifying the most recent national elections and stipulating that polls must now be re-run.
Both of these sets of decisions are highly significant and are already re-shaping politics: there is a real possibility of a change in government given the close outcome of the May 2019 election when fewer than 159 000 votes separated President Peter Mutharika (38.57 % of the votes) from his rival, Lazarus Chakwera (35.41 %).
But while Malawians are closely affected by these judicial decisions, a third series of cases offers an important lesson for others in Africa as well. These cases tell the story of a Malawian human rights activist, Charles Kajoloweka. Executive director of the NGO, ‘Youth and Society’, Kajoloweka has been involved in legal action against a powerful political figure. He argued that Malawi’s former Minister of Agriculture, George Chaponda, ought to be suspended during a commission of inquiry into ‘Maizegate’ – a major corruption scandal in which Chaponda was implicated. The High Court agreed with Kajoloweka and barred the Minister from his role in the Cabinet until after the inquiry had completed its work.
But the decision quickly landed in the Supreme Court where the judges upheld Chaponda’s appeal and – this is the important part – awarded costs against Kajoloweka personally. Faced with a bill for legal costs of MWK 21648675 (more than R500 000), the young human rights activist turned to the African Court on Human and Peoples' Rights. That court, based in Arusha, Tanzania, is a regional human rights court for the people of Africa or, rather, for those whose countries have signed all the relevant documents allowing individuals to bring a legal case against their own country.
Kajoloweka is lucky: Malawi is one of the few states whose governments have jumped through all the necessary administrative hoops. As a result, he has been able to ask that the African Court consider whether the award against him violates his human rights.
Last month, the African Court ruled that it has jurisdiction to consider and decide the case and, pending the finalisation of the matter, has issued an order staying enforcement of the costs bill against him. Kajoloweka, represented by the Pan African Lawyers Union, had brought his case to the African Court in connection with ‘public interest litigation’ undertaken in Malawi, said the African Court. It noted Kajoloweka’s claim that the costs order awarded against him personally violated a number of his rights under the African Charter and other human rights instruments. Kajoloweka also said the order staying enforcement of the costs bill against him was crucial. Otherwise he would lose all his personal and other belongings and, even if he were later to win at the African Court, these belongings might never be recovered, thus causing him ‘irreparable harm’.
Malawi, on the other hand, had submitted that the costs order should be executed immediately and urged the African Court to dismiss Kajoloweka’s application on the grounds that he had not ‘exhausted domestic remedies’.
Given that the Supreme Court – which made the costs order against Kajoloweka – is the highest court in Malawi, it is difficult to know what more he was supposed to have done to ‘exhaust his domestic remedies’. But that will be one of the questions that the African Court will consider once it hears the matter fully at a date still to be finalised. So will international law and the law of other jurisdictions, not least SA where the Constitutional Court has held that, except for vexatious litigation, costs are not awarded in cases against the state, to ‘prevent the chilling effect’ that adverse costs’ orders might otherwise have on litigants seeking to assert their constitutional rights.
But the point here is not the strength or otherwise of Kajoloweka’s case. Rather, it is the fact that he was able to approach the African Court about his problem at all. It’s a court with a less than stellar public profile despite the fact that it was established by the 55-member strong African Union. Of all these members, however, only about half have ratified the protocol setting up the court. And of those, even fewer have gone through the steps – making an ‘additional declaration’ – that would allow individuals and NGOs to approach the court directly. Originally just 10 in fact: Rwanda, Tanzania, Benin, Ivory Coast, Gambia, Malawi, Mali, Tunisia, Ghana and Burkina Faso.
In 2016, Rwanda withdrew its Additional Declaration after only three years, presumably because the court had been asked to deal with sensitive issues relating to imprisonment on the grounds of genocide denial. That withdrawal was followed by a period of some stability around state membership at the court.
Then, over the past months, Tanzania announced it was withdrawing from its Additional Declaration. This was followed by news that Benin had also decided to withdraw its Additional Declaration and, even more recently, Ivory Coast has done the same.
The weaker the court, the weaker its authority to consider the cases of people like Kajoloweka. Imagine, if the African Court decides in his favour, the injustice that would have been done had the judges not been able to hear his plea for help.
But it’s not just Kajoloweka. Almost every African government is giving itself extraordinary powers, ostensibly to deal with Covid-19, that clearly transgress fundamental rights. People are already expressing some concern and reservation, and there are signs that the constitutional validity of some of these measures will be tested in Africa’s domestic courts.
The real test lies ahead, however, as the pandemic eases: how many governments will readily give up those handy, newly-acquired powers of control? And if the African Court is any further weakened, will it be able to act as an adjudicator of human rights in protecting the people of the continent from remaining, over-reaching dictatorial powers?
These are troubling questions, difficult to answer. But they illustrate why the people of Africa need to keep an eye on their governments. We must ensure there are no further withdrawals from the jurisdiction of the court in matters concerning individuals. In fact, with an eye to the next few years and the possibility of increasingly long-lived state cut-backs on our rights and freedoms, we should be lobbying for more countries – for our own countries – to submit to the full jurisdiction of the court.
Kajoloweka’s case is a wake-up call, showing the importance of the African Court and how seriously we should all be taking this threat to its continued, meaningful existence.
* 'A Matter of Justice', Legalbrief, 4 May 2020