Lack of access to information in African regional inter-governmental organizations
Seminar on ‘Access to African supranational and regional law’, Johannesburg, 5 November 2012
Dr Magnus Killander, Senior Lecturer and Head of Research, Centre for Human Rights, Faculty of Law, University of Pretoria
Supranational and regional I think in this context are synonymous. It can apply to regional law in the strict sense that is continental, African Union, law of which there currently is quite little, or to sub-regional law adopted by one of the regional economic communities or one of the many other sub-regional inter-governmental organizations in Africa.
Supranational and regional law refer to law that is applicable in more than one state, for example the East African Competition Law which is directly applicable community law in the East African Community. It also refers to law which binds more than one state at the international level and may be applicable in a state depending on its constitutional framework and whether the norm is considered self-executing. Relatively few states in Africa give direct effect to international law in this sense. Supranational is sometimes reserved for the first type, law adopted by an international organization which is directly applicable in the member state due to a commitment to this effect in the treaty of the organization. There are a few organizations in Africa which functions this way though the normative framework they have built up is very far from the organization that coined the term supranational, the European Union.
Law in the title of this seminar extends beyond directly applicable supranational and regional norms to include regionally adopted norms, both binding and non-binding, that may require incorporation through national law and also cover case law by regional courts such as the African Court on Human and Peoples’ Rights, ECOWAS Community Court of Justice, the East African Court of Justice, the OHADA Court and the courts of CEMAC and OUEMOA.
Supranational and regional law from Africa would include the law of the African Union and sub-regional organizations based in Africa including those such as the Arab League which is based in an African state but also has a membership outside Africa.
Access in this day and age means easy access. First that the law is public so that anyone interested can consult it. Second that it is accessible without inordinate effort. The best way to ensure accessibility today is through providing online access on the Internet.
Limitations to access include cost (eg Legis-Palop in relation to legislation and case law in Portuguese), delay in publication due to procedural requirements such as the approval of the AU Assembly of the activity report of the African Commission on Human and Peoples’ Rights, lack of clear links from one open access site to another one relevant to a particular topic, limited search functions, lack of summaries to quickly grasp if a case or other document is relevant etc.
The University of Pretoria has a Law of Africa collection which focuses on national legislation. It is not easy to keep such a collection up to date. The same applies to the increasingly important norms adopted by inter-governmental organizations across the continent.
Most international organizations in Africa publish a gazette or similar publication. Many inter-governmental organizations fail to make the content of this publication available online or do not provide up to date information. For example useful up to date information on ECOWAS is not available on the web.
Access to laws is clearly linked to general transparency within an inter-governmental organization. It is often very difficult to get hold of reports etc prepared by international organizations in Africa. Secrecy is sometimes built into the system as with regard the adoption of the activity reports of the African Commission on Human and Peoples’ Rights. However, sometimes bodies like the African Commission contribute to a secrecy culture rather than trying to reform the system in line with its current project of a model law on access to information for AU member states. Access to information should exist with regard to documentation held not only by national governments but also by inter-governmental organizations. The African Union has as its predecessor the OAU not adopted a policy on which documents should not be public. The default position has therefore become that a document is not public unless the legal counsel says it is. This is not a tenable position. The current (slow) work on a data base of AU document similar to the UN ODS system will hopefully bear fruit and result in more transparency if as stated the system will in the main be public rather than only available within the AU Commission.
What most people would be interested in finding on a court’s web site would be issued judgments followed by useful information about pending cases.
Some regional courts maintain good websites. One of the best is the East African Court of Justice. If one improvement could be suggested it would be to provide case summaries and improved search function. Another good regional court web site is the SADC Tribunal which of course does not exist anymore. The African Court web site is ok but judgments are provided as heavy picture scans and the info provided on pending cases is uneven.
If you google the COMESA Court you get information about a publicity seminar held in 2011 but no information about what the court has done. It is not even very clear where the court is currently located unless you read the advert for the position of registrar of the Court. SAFLII has some judgments of the court dating from 2001 to 2003.
The latest case delivered by the OHADA court, one of the more active sub-regional courts, which is published on the OHADA web site is from 2002. The ECOWAS court with its important human rights jurisprudence has promised to publish its case law on the internet for many years.
The Centre for Human Rights where I work tries to make African inter-governmental legal material available widely through various means, in particular material of relevance to human rights. We have published compendiums of key human rights documents of the African Union and of sub-regional organizations in Africa. We publish the African Human Rights Law Reports which includes judgments from both international courts and quasi-judicial bodies and national courts which are of interest from a comparative constitutional perspective. The law reports are published yearly both in English and in French (Recueil africain des droits humains). The cases from the law reports and other cases are available in the case law database on our website and we also maintain a document database. The aim is double. To provide easy access to African law throughout the continent and to provide access to African law, including national law and judgments, to researchers and others interested outside the African continent. For the later purpose we have also partnered with other providers of legal information such as the Oxford Reports on International Law.