The African Court on Human and Peoples’ Rights (ACHPR) and the Court of Justice of the Economic Community of West African States (ECOWAS Court) are taking steps to improve on their mandates’ execution. Their representatives met in Abuja to strategise, reports Eric Ikhilae.
Although they have similar mandates, they have different challenges.
This much came to the fore at a two-day session held by senior officials of the African Court on Human and Peoples’ Rights (ACHPR) and the Court of Justice of the Economic Community of West African States (ECOWAS Court) in Abuja.
For the African Court, its major trouble is how to encourage more countries on the continent to utilise its services.
Although it began operations in 2006, two years after the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights came into force, the court is not appreciated as it ought to.
Out of out of Africa’s 55 countries, 30 have ratified the protocol, while only nine have made the declaration.
This implies that citizens of, and non-government organisations (NGOs) in the countries that are yet to make the declaration cannot initiates cases in the court.
Under Article 34(6) of the African Charter on Human and Peoples’ Rights, countries are required to, in addition to ratification, make a declaration recognising the competence of the court to receive cases from NGOs and individuals.
The nine countries that have so far made the declaration are Benin, Burkina Faso, Cote d’Ivoire, Ghana, Mali, Gambia, Tanzania, Malawi and Tunisia.
For the ECOWAS Court, it is the problem of non-implementation of its decisions and the reluctance of governments in the sub-region to abide by its judgments and orders
In the absence of an alternative measure of enforcing its judgment, the recent reduction of judges of the court from seven to five is threatening the increasing relevance of the ECOWAS Court.
The task of getting around these challenges occupied senior members of both courts during a judicial dialogue session in Abuja.
It afforded participants the opportunity to share ideas and experiences, with a view to enhancing the discharge of the courts’ judicial mandates – to promote and protect human rights within the framework of the African Charter on Human and Peoples’ Rights.
African Court’s President Sylvain Ore said the visit underscores the desire of the African Court to deepen the collaboration between both courts, which should not compete, but work to complement each other.
Ore said the two-day session was an opportunity to develop a framework for operationalising the memorandum of understanding (MOU) signed between the two courts on March 1, 2018.
ECOWAS Court’s President, Justice Edward Asante, highlighted the similarities in their mandates, such as protection of human rights, adding that they both apply the African Charter on Human and Peoples’ Rights.
Asante, however, noted that unlike the African Court, there is no requirement for the exhaustion of local remedies before accessing the ECOWAS Court.
He noted that the African Court, the African Commission on Human and Peoples’ Rights and the ECOWAS Court are key institutions within the African human rights system that must be developed and protected.
Seven presentations were made in the course of the two-day session, which discussed issues relating to the unique features of the human rights mandate of the ECOWAS Court; the challenge of access to the African Court and challenges of enforcement of judgments of ECOWAS Court.
There were also presentations of the overlapping jurisdictions, privileges and immunity of judges, dialogue with national courts and the review of the MOU.
Way forward
As a way of addressing the low number of African states that have made the declaration to recognise the competence of the African Court, it was suggested that more states should be encouraged to effect the declaration necessary for improved access to the court by NGOs and individuals
Participants discussed the challenges faced by the ECOWAS Court in the enforcement of its decisions and called for a review of the method of enforcement.
This, they noted, will give the court an opportunity to provide a report on the status of implementation of its judgments to the Council of Ministers and the Summit of Heads of State and Government of the Community.
The ECOWAS Court was also urged to take measures to communicate its judgments to the President of the ECOWAS Commission for follow-up actions as envisaged under the relevant ECOWAS Community Texts.
It was argued that non-compliance with the judgments of both courts affects their credibility and confidence in their ability and capacity.
Participants were unanimous in urging member states to live up to their treaty obligations by complying with or implementing their decisions.
The challenge of financial constraints that often hinder indigent litigants’ access to both courts also engaged participants,who after much discussion, suggested the institution of a legal aid fund for such litigants in order to deepen access to both courts.
It was agreed that improved awareness creation among the populace about the activities of both courts was necessary for improved access.
Participants noted the jurisdictional overlaps in human rights protection between the African Court and the ECOWAS Court.
They suggested that both courts should adopt measures to mitigate the possible harmful effects of the overlap through dialogue, sharing of jurisprudence and the adoption of measures to address forum shopping by litigants.
It was agreed that there was the need for sustainable institutionalization of the judicial dialogue between both courts to allow for experience sharing.
This is in view of the similarities of their mandates in human rights protection.
By institutionliasing the dialogue session, it was envisaged that such session could provide an annual platform for parties to exchange ideas on their mandates and international best practices for their mutual benefit and for collaboration and joint actions.
As a measure against possible divergent and contradictory interpretations of the African Charter on Human and Peoples’ Rights, it was agreed that mechanisms be created for collaboration, information sharing and joint actions.
This, it was noted, can be through capacity building, research and training, seminars, staff exchanges, resource mobilisation for the execution of joint projects, reciprocal representation and publication and exchange of jurisprudence.
The African Court delegation, which was in the country from April 29 to May 4, met with Vice President Yemi Osinbajo and representatives of NGOs during a visit to the National Human Rights Commission (NHRC) headquarters.
It also met with members of the legal community during a visit to the Nigerian Bar Association (NBA) president Paul Usoro (SAN) and the Federal Ministry of Justice.
