From the Editor’s Keyboard

Sierra Leone Should Sign African Court Protocol

By  | 13 November 2014 at 06:18 | 4328 views

For decades it was the International Criminal Court (ICC) in The Hague and the European Court for Human Rights that were spreading their tentacles far and wide in trying cases on war crimes and human rights respectively, but for the first time in history, Africa could now boast of its own court known as the African Court on Human and Peoples’ Rights based in Arusha, Tanzania in East Africa.

The African Court on Human and Peoples Rights was established by virtue of
Article 1 of the protocol to the African Charter on Human and Peoples Rights
envisaging the establishment of an African Court so as to ensure the protection
of human and peoples’ rights in Africa. The protocol establishing the court
was adopted on 9 June 1998 in Burkina Faso and came into force on 25 June
2004.The Court came to fruition through the creation of the African Union (AU),
which is the continental union, but at its initial stage it is faced with several challenges that mainly includes the lack of cooperation of member states in signing its protocol and making declarations, which would give it the requisite jurisdiction on the continent that it deserves so as to try cases from all over the continent. Many member states of the AU have not still signed the protocol and among those that have signed, some have not yet made a declaration. It is a great impediment to the Court. It has prevented individuals and organizations in African states which have not ratified the protocol from having access to the Court.

Among the countries that have neither signed the protocol nor made a declaration is Sierra Leone which could boast of having a Special Court for War Crimes set up in
2000 to try those who bear the greatest responsibility for the almost eleven
years war that overtook events in the country from 1991 to 2001. The African
Court on Human and Peoples’ Rights based in Arusha, Tanzania has called for
support and cooperation from member states of the AU so as to enable it carry
out its mandate effectively. This is the time when Sierra Leone should make use
of the opportunity by signing the Court’s protocol. The Sierra Leone judiciary
was invited to a conference of Chief Justices in 2013 in which Sierra Leone’s
judicial representative actively participated. It is now hoped that parliamentarians and all stakeholders including civil society would make this issue a preference in the country’s political agenda. I guess the remark most people in reading this article would make is that, the country is currently encumbered by the Ebola pandemic. It is quite clear that the whole world is aware that the Ebola pandemic has overtaken events and is now the country’s top most priority, but Ebola is not forever. It is hoped that when the pandemic would be over, among the issues that would be a priority for the president, the parliament, the cabinet and all stakeholders would be the signing of the protocol of the African Court on Human and Peoples Rights. It is necessary for the country to boost its human rights status which would be a cap on our feather within the international comity of nations.

The non-signing of the Court’s protocol has prevented individuals and
organizations including NGOs and human rights organizations to have access to
the Court to seek redress at continental level. Since the adoption of the
Court’s protocol in 1998, only 26 of the 54 member states of the African Union
have ratified it. As stated above, in addition to the ratification of the
protocol, states have to make a declaration to enable individuals and
organizations to take cases to the Court in Arusha, Tanzania. I was one of
the international journalists who were invited to the Court’s continental media
conference in 2013. Many of my colleagues from other countries boasted to me
that their countries have either signed the protocol and make a declaration or
have just signed the protocol. Unfortunately my country Sierra Leone has not
even ratified the protocol for which I urge our government, President Ernest Bai
Koroma, the Attorney General and Minister of Justice, parliamentarians and all stakeholders in our democratic dispensation to endeavour and make the necessary preparation to ratify the protocol.

Coming back to the Court itself which is staffed with diverse nationalities,
the current president of the Court is Ghanaian Sophia AB. Akuffo who has been
leading the Court’s delegation to several African countries to apprise leaders
and governments of the Court’s role and mandate in human rights trials.The
staff, including judges are drawn from different countries in Africa.

What needs to be known about the Court

But in my discussions with people since I returned from the Arusha Media
Conference in 2013, I have discovered so many issues which people are ignorant
of and for which they need to be enlightened. There has always been confusion in
the minds of people as to the distinction between the African Court on Human and
Peoples Rights and the African Commission on Human Rights. In the former,
decisions are binding when once they have been pronounced, because they are
judicial in nature, while in the Commission decisions are not binding. Many
people, especially Sierra Leoneans, do not know of the existence of the Court
and its composition. Since I started publishing articles about it, readers have
made enquiries. But I have always made it clear to my fellow Sierra Leoneans
that the Court is not like the Special Court for War Crimes in Sierra Leone
which was set up for a particular purpose and only for a specific time. The
African Court on Human and Peoples Rights permanently and currently deals on human rights issues that are filed to it by individuals and organizations from different countries in Africa that have signed its protocol and have made a declaration. Those that have not done so are not within the jurisdiction of the Court. If any matter is filed to the Court from such countries , it will have no jurisdiction to try such matters and
therefore has to throw the matter out .

The other question that many have asked me is; who are entitled to submit
cases to the court? Those entitled are; 1. The African Commission on Human and
Peoples’ Rights through which cases could be filed. 2. A state party to the
protocol of the Court which had lodged a complaint to the Commission. 3. On the
other hand a state party to the protocol itself against whom a complaint has
been lodged to the Commission can also file a case. 4. A citizen of a state
party to the protocol who is a victim of a human rights violation. 5. African
intergovernmental organizations or NGOs. Article 5 (3) of the Protocol provides
that relevant NGOs with Observer status before the Commission and individuals
can institute cases directly before the Court, if the State party they are
complaining against has made a declaration under Article 34 (6).

One other obvious question is; what is the relationship between the African
Court on Human and People’s Rights and other African human rights structures?
The African Court does not stand in a hollow but belong to the African Union
system. Many African states which are members of the AU have not however
committed themselves to the Court’s pivotal role in the protection of human and
peoples’ rights. What has been discovered recently in the Court’s history path
is that the plight which the International Criminal Court (ICC) finds itself in
which leading nations like the United States that trumpets human rights issues
around the globe but has not signed the Court’s protocols or treaties, which to
some extent has undermined the jurisdiction of the ICC, is the same plight that
the African Court has found itself. The US has not recognized the jurisdiction
of the International Criminal Court (ICC) and the Inter- American Court.

In Africa, many member states of the AU are still reluctant to sign the Courts protocol but claim to be part of the vanguard against human rights abuses in Africa. What
should also be known is that the African Court and the African Commission on
Human and Peoples Rights are both African Union organs dealing with human rights
issues. They have complimentary mandates. The mandate of the African Commission,
which is based in The Gambia, is to protect and promote human and peoples rights
in Africa, while the mandate of the African Court is to complement the
protective mandate of the Commission. The principle of complementarity in the
protection of human rights serves as the basis for the relationships between the
two institutions. However, the African Commission can bring cases to the African
Court for its consideration. In certain cases, the African Court can transfer
certain matters to the African Commission. It may also request the opinion of
the African Commission when dealing with the admissibility of a case.

The next question is on the judgment of the Court. When the Court finds that
there has been a violation of human and peoples’ rights, it shall issue
appropriate orders to remedy the violation including the payment of fair and
adequate compensation or reparation. The judgment of the Court is legally
binding and the Executive Council of the AU is charged with monitoring the
implementation of the judgment on behalf of the Assembly.

Under Article 28 (1) of the Protocol, the Court shall render its judgment
within ninety days of having completed its deliberations. Its judgment is final
and not subject to appeal. In other words it is the highest court in the
continent. It now serves as the continent’s Supreme Court. But in order for a
party to enjoy justice from the Court, if the party is in a state that has
signed the protocol and made declaration, such a party must have complied with
the legal principle of exhaustion, that is, must have gone through his country’s
courts hierarchy; from the lower court to the Supreme Court of his country,
before appealing to the African Court. Apart from an appellate jurisdiction the
court also has an original jurisdiction. Also, it has contentious and advisory
jurisdictions. However where new or fresh evidence emerges which was not within
the knowledge of a party at the time the judgment was delivered, the party may
apply for review of the judgment. This application for review must be submitted within six months after the party becomes aware of the new or fresh evidence.

Many people have expressed curiosity to know what the proceedings and
hearings before the Court are like. The procedure consists a written and oral
proceeding. The written procedure consists of the communication to the Court,
the parties as well as the Commission. Also, it consists of appropriate
applications, statements of the case, defences and observations and replies as
well as papers and documents in support or certified copies thereof.

The oral proceedings shall consist of hearings by the Court of representatives
of parties’ witnesses, experts or such other persons as the Court may decide to
hear. Cases are heard in open court. However, the Court may of its own accord or
at the request of a party hold its hearing in camera, if it is in the interest
of public morality, safety or public order to do so. Any party to a case shall
be entitled to be represented by a lawyer of the party’s choice. Free legal
representation may be provided where the interest of justice so require.

Media should publicize the Court

But coming again to the challenges facing the court, I think, one way to help
it succeed in its pursuit of protection of human and peoples rights, is to get
the full backing of the media. The role of the media in the construction
process is that journalists are the best channel to reach the wider populations
of Africa in enlightening them about the existence of the Court, its role in
human and peoples’ rights protection, its mandate and how the Court could be
accessed. At this time when the Global community has been under the grip of a
frenzied campaign of gender equality, the Court also embraces the main
principles of the constitutive act of the Organization of African Unity (OAU),
the predecessor of the AU, contained in Article 4 that enshrines the promotion
of gender equity, respect for democratic principles, of human rights and the
rule of law, good governance, promotion of social justice so as to ensure
balance economic development, respect for the sanctity of human rights, condemnation and rejection of impunity and its responsibility to protect human rights , its power to intervene in times of crisis in certain countries and its responsibility to
protect victims, example, in war crimes, genocide and crimes against humanity.

Jurisdiction

Currently it has not got a criminal jurisdiction but the Court is moving towards
that direction so as to acquire the legal mandate of exercising it. In February
2009, the Assembly of the Heads of States and government of the AU, of which
Sierra Leone is a longtime member and whose annual assemblies President Koroma
has been attending, requested the AU Commission in consultation with the African
Commission on Human and Peoples Rights and the African Court on Human and
Peoples Rights to assess the implications of extending the jurisdiction of the
Court so as to try international crimes such as genocide, crimes against
humanity and war crimes, and to submit a report to the Assembly in 2010. To
implement the decision of the Assembly, the AU Commission engaged a consultant
to undertake a study on the implications of extending its jurisdiction. It also
included consideration of unconstitutional change or prolongation of government
(third termism) in Africa which could be considered as a new crime. The draft protocol to extend the Court’s mandate is currently under consideration by the AU Policy organs.

There are also other challenges facing the Court that currently includes
enforcing of judgments. I remember one of the judges Hon. Justice Augustino
Rhamadani noted at the Continental Media Conference in Arusha Tanzania, in 2013;
It is a common phenomenon even at domestic level. He said the Court could
pronounce a judgment but the problem was compelling states to adhere to the
dictates of the judgment. He stressed the need for journalists to inform the
wider population about judgments of the Court adding that journalists should
show more enthusiasm on reporting the activities of the Court as they do for
sport bodies like FIFA.
The way forward

The question that many have also asked me whenever I highlighted the role and
challenges of the Court is; What is the way forward? I think what the Court has
to do is to take a pragmatic path. The strategies that are to be adopted should
include the adoption of international approaches, that should include ideas for
enhancing judicial information and the diverse justice systems in Africa and
also to take into consideration the institutional policy gaps that are
characteristic in the state administration of African countries.

Some people have asked me what are the languages of the court? The official
languages of the court are; Arabic, English, French and Portuguese. The current
president of the Court is lady justice Sophia Akuffo of Ghana. The Registrar is
Dr. Robert Eno from Cameroon. The Vice President is Hon Justice Bernard Ngoepe
of South Africa. Information about the court or how to lodge cases at the Court
could be done through the Registrar’s office.

What is expected from Sierra Leone?

The expectation now is that as the Ebola pandemic is taking the exit door out of
the lives of the peoples of Sierra Leone, signing of the protocol of the African
Court on Human and Peoples Rights would be among the top issues of the
government’s agenda. That’s why one needs to make a clarion call to
parliamentarians, civil society activists, journalists, politicians including
cabinet ministers, the Attorney General and Minister of Justice, the National
Commission for Human Rights, National Commission for Democracy, students and all
human rights stakeholders to make it incumbent upon them to influence the
government to sign the protocol of the Court and make a declaration.

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