The African Court on Human and Peoples’ Rights fears that the lack of cooperation by some African Union member states threatens the court’s very existence.
A report, released earlier this month on the court’s activities during 2020, noted that states' ‘poor level of compliance’ with decisions of the court was a serious problem. More than 100 judgments and orders had been given by the court, but only Burkina Faso had fully complied with a judgment against it. One other state, Tanzania, had partially complied, while other states including Benin, Libya and Rwanda ‘have not complied at all, with some openly indicating that they will not comply with the orders and judgments of the court.’
Against that background, the report said that the African Court's success as a human rights court – and the success of African human rights generally – was a ‘collective responsibility’, needing the ‘active and constructive participation of all stakeholders’.
The court noted the ‘worrying trend’ for states, against which a judgment had been given by the court, to ‘withdraw or threaten to withdraw’ the declaration they had signed allowing individuals and NGOs to approach the court directly.
‘The court is concerned that should this trend continue, it will undermine the human rights protection mechanisms on the continent, with the immediate effect of depriving millions of citizens of a fundamental right which they had acquired – that of accessing justice directly before the African Court.’
These withdrawals were evidence of a ‘decline’ in efforts to build democracy, defend human rights and promote the rule of law.
The court was to establish a ‘compliance monitoring unit’ that would work closely with member states and other AU bodies to ‘facilitate’ compliance by states with the court’s decisions. This would be part of the court’s constructive engagement with member states, along with helping build capacity for judges from national courts and counsel appearing before the court.
The court was to set up an online human rights course for national judges aimed at ‘enhancing’ their knowledge of regional and international human rights law and it was also working to establish an ‘African Judicial Network’ that would provide training and capacity development for judiciaries across the continent.
‘While acknowledging the primacy of states to promote and protect human rights, the court also recognises its complementary and supporting role as a supra-national mechanism.’
The report noted that, more than two decades after the adoption of the Protocol that established the court, only 30 of the 55 member states had ratified the Protocol. Of these, only six had agreed to allow direct access to the court by individuals and NGOs.
The court was also negatively affected by insufficient funding and not enough personnel.
With the Covid-19 pandemic, it became clear that the court was not immediately able to continue its work and there were problems in organising Internet-based meetings because of inadequate computer technology.Part of the 2020 March session had to be cancelled as a result. ‘The other three sessions of the year were held virtually with several challenges related, but not limited to, Internet connectivity, organisation of public hearings, confidentiality of deliberations, possible leakages, participation of experts and witnesses at public hearings etc.’
These challenges emphasised the need for the court to strengthen its capacity by building its infrastructure, ‘especially courtroom technology’.
Against the background of these difficulties, the court made a number of recommendations. These included urging that those states that had withdrawn their agreement allowing individuals and NGOs to approach the court, should reconsider their decision. It also urged states that had not yet signed the Protocol, to do so, and similarly, that those states that had not agreed to allow direct access by individuals and NGOs, should do so.
Echoing the court’s concern about compliance, it also recommended that AU member states should ‘cooperate with the court and comply with its decisions’.