African Human Rights Day seems like a good time to reflect on an issue that affects all three of the continent’s premier human rights bodies: the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child. This issue is one that is raised in a new report by Amnesty International, and it’s an issue faced by each country separately as well, namely how the system of choosing judges is run, in order to ensure transparency, fairness and the best candidates.
Amnesty International has released a report coinciding with African Human Rights Day, October 21. This is the day on which, in 1986, the African Charter on Human and Peoples’ Rights first came into effect.
The report closely examines the state of Africa’s premier human rights bodies and mechanisms over the last two years, namely the African Commission on Human and Peoples’ Rights, the African Committee of Experts on the Rights and Welfare of the Child, and the African Court on Human and Peoples’ Rights.
It’s an important, fascinating report. Among the sections that stand out as particularly important is the question of how judges are chosen to sit on the African Court and how members of the other two African regional human rights bodies are chosen.
The Amnesty report stresses a recurring problem: when vacancies open up, there aren’t enough candidates to allow for a meaningful, merit-based election.
For example, four new members of the African Commission had to be chosen in July 2019. But there weren’t enough candidates ‘to allow for a meaningful, genuine, competitive and merit-based election that would potentially result in the best possible composition for the regional body.’
Because of this, the election was postponed six months. But the delay didn’t really help, as there was no greater interest the second time round.
This is not an unusual occurrence, says the Amnesty report. ‘Elections for the three regional human rights bodies have almost always attracted an unacceptably low number of nominations.’ Many previous elections have had to be postponed to allow AU member state to nominate more candidates and the AU Commission has urged regions to submit more candidates than there are vacancies.
Amnesty is concerned that when states nominate people from their own country to regional bodies, the process used ‘often lacks transparency and openness’. Worse, merit is seldom considered. The AU Commission urges states to ensure ‘broad participation in and transparency of national nomination processes.’ It specifies that members state should ‘encourage the participation of civil society, including judicial and other state bodies, bar association, academic and human rights organisations and women’s groups’ in selecting nominees. The commission also urges that states should use a transparent and impartial national nomination procedure to create public trust in the integrity of the nomination process.
But what happens in reality? ‘(S)ecrecy and largely meritless national nomination processes persist.’ In 2017 the Open Society Justice Initive and the International Commission of Jurists commented that the processes of nominating individuals to global and regional human rights commissions or court found that these processes were ‘largely unknown and shrouded in secrecy’.
Amnesty says it has no comment to make about any individual nominated to these regional human rights bodies. Instead, its concern is about promoting ‘open, transparent and merit-based nominations and elections.’
Human rights credentials
In the view of Amnesty, these regional bodies should be made up of people ‘with the highest credentials in the field of human rights’. They should also have a strong commitment to ethical and moral standards ‘including independence and impartiality.’
If regional bodies are to be effective in carrying out their role of promoting and protecting human rights in Africa, then the members of these bodies must be ‘competent, independent and impartial’.
The quality of the individual members of these regional bodies could significantly impact on the work they do, not to mention public perception of their independence.
The report offers several suggestions for how matters could be improved:
States should institute national nomination processes that are ‘open, transparent, impartial and merit based.’ Vacancies should be advertised widely to ensure that they are open to all candidates who qualify. States should ‘actively encourage’ wide participation, including civil society, in the nomination process, and the list of candidates, with their CVs and other key information should be made public. Similarly, the outcome and a detailed statement on how the successful nominees meet the requirements, should be published.
In 2018, African heads of state adopted a new process for electing and appointing senior leadership. At its heart is a commitment ‘to ensure transparency and meritocracy’. And it is exactly the kind of process that should be used in other organs and institutions of the AU, including the regional human rights bodies, says Amnesty.