The African Court on Human and People’s Rights (ACHPR) was established by the African Union (AU) following member-states’ adoption of the Protocol establishing the court in 1998 in Burkina Faso. The Protocol came into force on January 25, 2004. The court began operations in 2006 in Addis Ababa, Ethiopia. The court’s President and a Justice of the Supreme Court of Ghana, Sophia Akuffo, in this interview with ERIC IKHILAE, speaks on its activities and why citizens of most member-states, especially Nigeria, cannot access the court.
You will be rounding off your tenure in September, next year. How has the journey been?
When we were set up in 2006 literally, it was a court because there were judges who had been sworn in. But, there wasn’t even a typist, there was no office. We had to decide by ourselves that, until they give us where to operate, we will operate from Addis (Ababa). That is the head office of the African Union (AU). We had no budget and we had no Rules of Procedure. So, it was a start-up from scratch. We relocated here, Arusha in 2007 and by 2008, we were able to do our first draft of Rules of Proceedings. Without the Rules of Proceedings, the court cannot accept any case. So, we did that and let everybody know that we are ready for business.
What were the efforts made to popularise the court among member-states of the AU?
One thing you have to realise is that at the moment, it is not everybody who can come to this court. This is because the Protocol setting up the court gives access to state party to the Protocol, the African Commission on Human and People’s Rights (the Banjul commission), the AU, certain intergovernmental bodies in the continent and then, individuals and non- governmental bodies (if the case brought is against a state that has ratified the Protocol and has also declared that individuals/non-governmental organisations (NGOs) can bring cases before the court). It was only Burkina Faso that had made that declaration as at when we started.
How have you created awareness?
After we did our first case, on which we had to decline jurisdiction, because it was a matter brought by an individual against a state that had not made the declaration, we realised that we had reach-out by ourselves. But as judges, it was a difficult decision for us to make because courts don’t normally go advertising themselves. It is assumed that everybody knows where the court is. But we had to start doing that to get people, and even governments, to know why the court exists. So, we have been doing that since 2008. We have been going from country to country. We have been to Nigeria. We had a seminar and we also spoke to highly placed government officials and the parliament. We also had a meeting with the Human Rights Commission, among others. That is what we have been doing – reaching out. And it has yielded some results.
What is the acceptance like so far?
The question is, if there are other entities that can come to the court, why don’t they come? Well, it is the individuals, whose rights get trampled upon or violated. Those will be the people with primary interest and then, the NGOs that are espousing particular human right causes. But as for states, we will wait for a long time before states start coming to uphold human rights for their citizens. This is because I can barely envisage a situation where a state will bring an action against another state over the violation of its citizen’s rights by the country sued.
What is Nigeria’s status with the court at the moment?
As at today, Nigeria has signed the Protocol, it has ratified. That is why one of our judges is a Nigerian. But cases cannot be brought against Nigeria directly by individuals or NGO. It can only be brought by other African states or they will have to go to the Banjul Commission, who will look at the matter and decide whether it could be brought here. Right now, direct access to the court is only limited to the people bringing matters against seven members of the AU. These are Burkina Faso, Mali, Malawi, Tanzania, Ghana, Cote d’ivoire and Rwanda, because they have made the declaration (recognising the court’s jurisdiction to hear cases brought directly by individuals or NGOs). During our visit to Nigeria, we had promises, particularly in relation to making the declaration. In fact, we had firm promises that ‘by certain, certain time, we would have done it.’ It was supposed to be May 2011 and still, it has not been done. We do not know why. I think it requires that we keep reminding the Nigerian authorities and other countries about the activities and benefits of patronising the court.
To what extent would you say the court’s activities have affected the culture of impunity and rights abuses on the continent?
I think, in the global term, you are being too ambitious and you are pushing the court too much. What matters is what decisions have been made, which we expect to have impact. And the point is that, because the majority of the member-states of the AU have not made their declaration, we have not had a significant number of qualifying applications (cases filed before the court). The other thing is that we are not a court of appeal, and sometime, we have received cases that are more like appeals than bring human rights cases. Last July for example, we made a decision that concerned the compliance of a constitutional provision with the Charter (the African Charter on Human and People’s Rights). We found that the provision was not in compliance with the Charter. It violated rights. Because we are a court of competent jurisdiction set up by the AU, when we make a decision, like the one that was against a particular state and its Constitution, it means that every member-state of the AU, which is a party to the Charter, will learn from it. And that is how our impact is felt.
How does the court ensure that its decisions/judgments are complied with?
Usually, real enforcement of court’s judgments is not always by the court itself. So, enforcement can always be an issue. But under the Protocol setting up the court, the body that is responsible for monitoring compliance is the Executive Council of the AU (made up of Ministers of Foreign Affairs). It reports to the Assembly of the Heads of State. What the court does is that, we report to the AU on our activities. And we are specifically required to report on non-compliance. We actually report on all the cases we have finished and non-compliance. Another way we report is that, as soon as we deliver a judgment, we do not only serve the parties, we also serve the AU and such judgments are expected to be disseminated among AU member-states.
Don’t you think the court is disadvantaged by not having a criminal jurisdiction?
Criminal jurisdiction is at the end of a spectrum; where things went wrong, that is where you reach the point of criminality. The fact that this court does not have criminal jurisdiction does not weaken it. In fact, the first international criminal court is the International Criminal Court (ICC). How old is it? It was established for certain purposes; where it is evident that states themselves do not want to deal with what is going on. But what is more important is that eventually the ground for nurturing and protecting human rights gets solidified and firmed. Then, impunity does not even arise because you know that even if you are not hauled off to any court, you will not be found guilty, but the state will be. What we must remember is that it is the responsibility of every state to assure and protect the human rights of its people. And when there is a violation of human right, it means that the state has failed to ensure this.
When does the court take up cases?
This court takes cases only when the person is able to show that there were no adequate local remedies provided by their states or they have exhausted the local remedies. I am optimistic because it is the beginning of something important. In the world at the moment, there are only two other courts like ours – the Inter-American Court of Human Rights and the European Court of Human Rights. And we do a lot of interactions with them. We have gone farther than they did when they were first set up. It takes a while to become established and become known by other people. The ICC is known because it seems to deal with people, who have done horrible things that you only see in the movies. Human rights courts are there to ensure that, at the end of the day, people do not reach that horrible level.
What are the hinderances to the court’s effective performance?
The main challenge is to get Africans to know and understand that they have this court. I realised that most people do not even know that we have the African Charter on Human and People’s Rights or even what it stands for, and that there is the Banjul Commission and this court. So, it is important for people to know that they have these structures (to ensure the protection of their rights) and to be interested in what the court is doing. People should always be engaged in matters concerning human rights because it concerns everybody. If your state (country) has not made the declaration or ratified the Protocol, I think, with the growth of democracy and constitutionalism in Africa, it is important for people to ask their leaders why they have not ratified and made the declaration. But it starts off with the knowledge, to know you have the right, before you can even ask your country’s leaders why you cannot have full access to the court. Another challenge is to get the leadership of member states to realise that they have either not ratified or declared. And after making them become aware of their status, there is the challenge to also get them to make a move.
What efforts are being made to tackle these challenges?
To me, issues about human rights are very fundamental in human life, but somehow, to those in government, it is always placed on the back burner, and with the fire off (let me put it that way). One needs to be pressing about it. We are a court. So, we will prefer that as time goes on, we have others doing that advocacy, because we should not be doing too much advocacy. There is a point one needs to stop so as not to put the court into a conflict of interest. We now live in the information age. No matter how much one tries to control the flow of information, it will be everywhere in no time. People now have easy access to information. Every decision of the court is published on the internet. We also conduct public hearing in some cases. We are doing our best to let the people know what we do. The rest of it is left to the people. You hear the message, and you run with it or you use it.
In what areas do you think the court’s capacity could be further improved to allow for enhanced performance?
First, we don’t have enough people, we don’t have enough staff. It was only last year that the barest structure that the court recommended was accepted. Even the provisions that have been approved had to be staggered for financial reasons. As I said earlier, we were set up as a court of judges. We have come a long way and we know we will go even farther. We have got a very good staff who are prepared to do the odd, in relation to their job descriptions. We intend to use technology to optimise the speed and accuracy with which we do our work. Of course, machines will never replace human being in a judicial system, but in terms of processes, we will optimise the use of technology, particularly in the courtroom. This is because one of the time wasting problems in the courtroom is the record, in terms of getting it and getting it right. And fortunately, there is technology for ensuring that accuracy to a very, very large extent.
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