The theme – “The African Court and the Africa We Want” is apt indeed. It echoes ‘Agenda 2063: The Africa We Want’, with its seven forward-looking aspirations.
The AU Handbook 2018 describes Agenda 2063 as a unique opportunity to rewrite the African narrative with a view to instilling enthusiasm and impetus into the African population and using their constructive energy to define and implement a feasible programme for unity, peace and development during the 21st century.
All AU Member States, organs and even Regional Economic Communities are required to align their development plans with Agenda 2063 and its first ten-year implementation plan.
As an AU organ, the African Court is obviously making a statement with this carefully crafted theme: that it intends to work with other stakeholders for the ‘Africa we want.’
To further set the context for my remarks, perhaps it might be helpful to, quickly track the African human rights protection journey to this point. Africa joined the global and regional human rights family when the OAU adopted the African Charter on Human and Peoples’ Rights in 1981.
And there is no question about the African Charter’s positive impact on the international and national practice of human rights. Africa has since joined other regional human rights families, speaking a common language and bonding with Europe and the Inter-Americas.
For two decades after the African Charter entered into force, the African Commission was the sole human rights ‘ombudsman’ at the continental level. Like all quasi-judicial or judicial institutions, the African Commission carries out its mandate within the limits of the powers conferred on it by its constitutive treaty. After about a decade of experiment in regional human rights protection, the normative and institutional deficiencies in the African Charter became too manifest to be ignored.
Propelled by civil society, the African Commission, and other stakeholders, African States adopted the Ouagadougou Protocol in 1998 to make the institutional human rights protection ‘fit for purpose’. Article 2 of the Protocol establishes the African Court to complement the protective mandate of the African Commission.
The Protocol also contains some innovative provisions; for example, Article 27, which authorises the Court to order provisional measures in situations of extreme emergency, and to provide reparation after findings of breaches of human and peoples’ rights.
By the terms of Article 30, each State Party “undertakes to comply with the judgment [or ‘order’] in any case to which they are parties within the time stipulated by the Court and to guarantee its execution”.
Article 29 mandates the AU Executive Council to monitor the execution of the Court’s judgments on behalf of the AU Assembly. Clearly, the Ouagadougou Protocol addresses different stakeholders: the Court, States Parties, and AU institutions, besides provisions directed at the African Commission and even non-state entities. This organic arrangement underscores the multidimensional task of advancing human rights in Africa.
The ‘Concept Note’ for this ceremony provides information, indicating that, as of December 2021, the Court received about 330 applications and issued about 200 decisions. In the Court’s 16 years of existence, these statistics translate into about 20 applications and 12 decisions per year, a significant achievement for a young continental institution with obvious teething challenges.
My brief is to provide some answers to the question of the role of the African Court in bringing about the Africa we want. The first, is of course to determine the Africa we want. In doing so, I think it is best to identify the challenges and burdens we must discharge to arrive at the type of continent we want, and then ask the question, what is the Court doing by its mandate and practice to relieve those burdens?
These burdens, some of which have been described by Agenda 2063 as “humanity’s most pressing concerns” include poverty or the eradication of poverty, hunger and disease; the sustenance of democracy and the rule of law, sustainable development especially the challenges of climate change, and human security and peace.
But when we task the Court about how through its interpretive and promotional mandates, it is promoting the Africa we want, we are also speaking to and asking the same of its sister agencies. The court is, as we noted earlier, only part of a tripod. So we will use the Court’s jurisprudence and those of its sister agencies to reflect on some of these issues that are crucial in arriving at the Africa we want.
The first issue is Poverty and Socio-economic Rights
In 2015, the AU celebrated Africa’s sustained levels of economic growth but noted with concern the persistent unemployment and health issues. It admitted that a significant proportion of the population remained vulnerable to challenges of economic marginalization, hunger and malnutrition.
It stressed the same problem in Agenda 2063, lamenting that children continue to die of preventable diseases, women continue to die while giving birth, and hunger and malnutrition remain part of the human experience, despite advances in technology and know-how to ensure a decent standard of living and human security for all.
These problems have existed with us for decades, which explained why Africa decided to enshrine socio-economic rights in the African Charter and other regional human rights instruments.
The Africa Charter notes that “it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights.”
I believe that these are imperatives that have guided, and should continue to guide regional mechanisms in their interpretation of the African Charter and related instruments. The African Commission and African Committee have adjudicated various socio-economic rights cases in a manner that should serve as persuasive authorities for the Court. In the case of Purohit and Moore vs. the Gambia, the African Commission reaffirmed the African Charter’s guarantee of the right to health, holding that the right to health includes the right to health facilities and access to goods and services.
Also, the commission in the Centre on Housing Rights and Evictions vs Sudan, (CoHRE case) was more detailed in its exposition on the scope of the right to health under Article 16 by relying on the interpretation of the right to health in international law.
The commission agreed with the UN Committee on Economic, Social and Cultural Rights in its General Comment No. 14 on the right to health adopted in 2000, that ‘the right to health extends not only to timely and appropriate health care, but also to the underlying determinants of health, such as access to safe and portable water, an adequate supply of safe food, nutrition, and housing. In terms of the General Comment, the right to health contains four elements: availability, accessibility, acceptability and quality, and impose three types of obligations on States – to respect, fulfil and protect the right.
In terms of the duty to protect, the State must ensure that third parties (non-state actors) do not infringe upon the enjoyment of the right to health.
In APDF and IHRDA v Mali (which was decided on its merits), the African Committee held that “minimal access to health facilities, a lower level of contact with health-promoting measures and medical assistance, and a lack of provision of primary and therapeutic health resources and programmes is inconsistent with respect for the child’s right to the highest attainable standard of health.”
The African Commission in the Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) vs/ Nigeria case also was commendably creative in extending the scope of economic and social rights by adopting an approach of implied rights. The Commission for example held that although the right to housing and shelter are not provided in the charter, activating the provisions of articles 14,16 and 18, on the rights to property, to enjoy the best attainable state of mental and physical health, the prohibition of the wanton destruction of shelter respectively would imply a right to housing and shelter.
The device of implied rights in the African Charter was adopted as a resolution of the commission in 2004, the Commission, in the following words, “the ESC rights ‘explicitly provided for under the African Charter, read together with other rights in the Charter, such as the right to life and respect for inherent human dignity, imply the recognition of other economic and social rights, including the right to shelter, the right to basic nutrition and the right to social security.”
As noted by a distinguished author Seyonjo, in the COHRE case, he noted that the Commission upheld the position that Article 16 of the African Charter implicitly protects the rights to adequate food and housing, including the prohibition of forced evictions, and also guarantees the right to water, rights without which the right to health itself would be empty.
It appears that thus far, the Commission’s approach is accepted as reflecting a correct reading of the African Charter and one that is consistent with international human rights law.
Although the African Court has not so far made a pronouncement on the normative scope of socio-economic rights, it is obvious that it may have to do so in the coming years or be prodded to do so.
The court must prepare to answer questions such as was raised in the Request for Advisory Opinion by the Socio-Economic Rights and Accountability Project, SERAP 2017, 2 AFCLR 572, as to whether extreme, systemic and widespread poverty is a violation of certain provisions of the African Charter, in particular Art 2 which prohibits discrimination based on any other status.” The court, in that case, I believe did not consider the request as it found that SERAP was not an African organization within the context of the Charter.
The second issue is Environment and Sustainable Development
The phrase, “sustainable development”, is an elastic term that encompasses economic, environmental and social sustainability. The essential idea of ecological sustainability is the necessity to protect and restore the ecosystem while fostering peace, security economic and social development.
For example, the AU envisions a continent with climate-resilient economies and communities, where the environment and ecosystems are healthy and preserved. In its decision on Social & Economic Rights Action Centre and Another v. Nigeria, the communication, in that case, alleges that the military government of Nigeria has been directly involved in oil production through the State oil company, the Nigerian National Petroleum Company (NNPC), the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC), and that these operations being without regard for the health or environment of the local communities and this caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni People.
While upholding the argument of the applicants, the African Law Commission established a linkage between the environment and socio-economic rights, stressing that a clean and safe environment affects the quality of life and safety of the individual.
The Commission held inter alia that “The right to a general satisfactory environment, as guaranteed under Article 24 of the African Charter or the right to a healthy environment, as it is widely known, therefore imposes clear obligations upon a government. It requires the State to take reasonable and other measures to prevent pollution and ecological degradation; promote conservation, and secure ecologically sustainable development and use of natural resources.
Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Nigeria is a party, also requires governments to take necessary steps for the improvement of all aspects of environmental and industrial hygiene. The right to enjoy the best attainable state of physical and mental health enunciated in Article 16(1) of the African Charter and the right to a general satisfactory environment favourable to development (Article 16(3)) already noted obligates governments to desist from directly threatening the health and environment of their citizens.
The State is under an obligation to respect the just noted rights and this entails largely non-interventionist conduct from the State, for example, not from carrying out, sponsoring or tolerating any practise, policy or legal measures violating the integrity of the individual.
Government compliance with the spirit of Articles 16 and 24 of the African Charter must also include ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring measures and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.
Of course, these issues of the environment have taken greater urgency since the Paris Agreement on Climate Change and lately COP 26. The statements of the court were farsighted and are more relevant now than ever before.
Nigeria has now drawn up an Energy Transition Plan and an Integrated Energy Plan to meet the demands of the transition to net-zero by 2060. The plan takes into account mitigation against pollution and the transition from heavy pollutants such as firewood and kerosene for cooking to the use of LPG. But a major challenge is for developing countries is that wealthier countries are proposing to defund gas projects as part of the decarbonisation initiatives, but this will mean that conversion to gas for clean cooking will be stalled.
It is important for African countries to speak in one voice – Africans after all, are the least pollutants and the worst affected by climate change. It is important for Africans to see this as a developmental issue and not just a climate issue and ensure that wealthier countries are not just made to comply with their obligations in all of the Paris Agreements especially to fund adaptive and mitigation measures, but also to desist from the public defunding of gas projects.
The right to development came up for adjudication before the African Commission in Centre for Minority Rights Development and Another v. Kenya. The case alleged that the Endorois indigenous people were forcibly displaced from their ancestral lands without prior consultations and adequate and effective compensation for the loss of their property, thereby disrupting their pastoral enterprise.
The Commission held that the forced evictions of these people eliminated any choice as to where they would live. In effect, the absence of consultation left these people disenfranchised from a process of utmost importance to their life as a people. And if the respondent state-provided conditions to facilitate the R2D, as envisaged under the African Charter, “the development of the game reserve (which was in question) would have increased the capabilities of these people, as they would have had a possibility to benefit from the game reserve. The case is significant, inter alia, for elaborating on the contours of the right to development.
According to the commission, the right to development is a two-pronged test, that it is both constitutive and instrumental, or useful as both a means and an end. A violation of either the procedural or substantive element constitutes a violation of the right to development. Fulfilling only one of the two prongs will not satisfy the right to development.
The African Commission notes the complainant’s arguments that recognising the right to development requires fulfilling five main criteria: it must be equitable, non-discriminatory, participatory, accountable, and transparent, with equity and choice as important, over-arching themes are crucial to the enforcement of the right to development.
Years later, the African Commission itself instituted a case before the African Court against Kenya, also alleging a violation of Article 22 of the African Charter. The case—African Commission on Human and Peoples’ Rights v. Kenya (which was decided on its merits)—the case dealt with the eviction of the Ogiek indigenous population from the Mau Forest.
In a notable decision, that straddled the right of indigenous peoples, rights to life, property, equality, non-discrimination, religion, cultural life, development, and peoples’ right to freely dispose of their wealth and natural resources, the African Court held that the Respondent State (very similar in some cases to the Nigerian and Ogoni case) violated the right of the Ogiek people by failing to consult and involve them in developing and determining health, housing and other economic and social programmes affecting them.
I believe that the African Court and Commission must continue to develop the jurisprudence on the right to development and call on States and non-state entities to work for their realization. The relationship between underdevelopment, poverty, and national security is well established to require any elaboration.
A balanced and integrated economic and social development will contribute to a just international order, promote peace and security, social progress, better standards of living, and the observance of, and respect for human rights.
The African Court and its sister institutions may need to stress these issues in their future jurisprudence on the right to development. The Court should also call on States and non-state entities to work for the realization of the right to development. Realizing this right requires collaborative efforts between African governments, citizens and the international community.
Helping poor nations to resolve their economic and social crises will also prevent or de-escalate internal conflicts. And if there is a right to development, Africans should be assured of the full enjoyment of the substantive guarantee that it embodies.
The third issue is Democracy and Unconstitutional Changes of Governments
Africa has come a long way in her democratic journey. Constitutional democracy that safeguards human rights and rule of law is increasingly being entrenched, exemplified by the unbroken democratic experiences, especially after military regimes in Nigeria and other countries.
The threat that these gains may be reversed explains the anxiety over the recent coups d’état in Mali, Chad, Guinea, Sudan, and Burkina Faso, and the attempt in Guinea Bissau. Such attacks on democracy imply negatively on constitutionalism, human rights, and rule of law.
The African Union has made it clear that unconstitutional changes of government is not a part and cannot be a part of the Africa we want. We desire an Africa, according to the African Charter on Democracy, Election and Governance, which “promote[s] the holding of regular free and fair elections to institutionalise legitimate authority of representative government as well as democratic change of governments.”
It is refreshing that the African Court is also keenly aware of this imperative. In the case of Association for Peace and Human Rights (APDH) v. Côte d’Ivoire, the Court held that the African Charter on Democracy forms part of the African human rights corpus for which it has jurisdiction to interpret and apply. I respectfully urge the Court to reinforce these emergent norms whenever it has the opportunity to interpret the Charter and related instruments. And also stress the necessity for good governance as a safeguard against undemocratic and unconstitutional upheavals in African States.
Every organ of international and national society must work in solidarity to protect democracy and advance good governance that secures basic freedoms. The cost of inaction will be too high for present and future generations.
I think the court in the case of Association for Peace and Human Rights (APDH) v. Côte d’Ivoire, must also be commended for upholding the right of the electorate to independent and impartial electoral umpires and that the umpire ought to be actually and apparently independent and impartial.
There are many challenges that remain. We are proud of the African Court and its achievements and, in particular, its Afrocentric development of human rights jurisprudence. Of course, challenges remain.
From its ‘Concept Note’, the Court has identified three such challenges. The first is the number of State Parties to the Ouagadougou Protocol—32 ratifications in more than 20 years.
The second is the fewer number of Article 34(6) Declarations, which permit direct access to the Court by individuals and non-governmental organizations (NGOs). Only eight of the 32 State Parties have done so, and four countries that made the Declaration earlier have withdrawn theirs.
The third challenge is the lack of a proper enforcement mechanism, either at the domestic or continental level, notwithstanding the Ouagadougou Protocol’s mandate on the AU Executive Council.
Other challenges include the reluctance of some States to respect the Court’s orders of interim measures, not to mention funding problems in the face of competing for financial needs within the AU system.
I will touch on some of these challenges in the final segment, but I wish to return to Agenda 2063; there, the AU declares that Africa will be “a continent where democratic values, culture, practices, universal principles of human rights, gender equality, justice and the rule of law are entrenched”, with “capable institutions and transformative leadership in place at all levels.”
In addition, Africa’s population according to the document, “will enjoy affordable and timely access to independent courts and judiciary that deliver justice without fear or favour.
Corruption and impunity will be a thing of the past.” The target date for realizing these aspirations is 2063.
While we all align ourselves with these lofty goals, I personally do not believe that Africa can afford to wait for another four decades before seeing the full entrenchment of the culture of respect for human rights and rule of law and wiping out corruption in governance. We must resolve to see a different Africa in our lifetime. The purpose of life is in the here and now, not in the far future. We must ensure that those of us here at this time enjoy the fruits of all the struggles of those before us in the entrenchment of our freedoms. We have the capacity to change Africa’s narrative and destination.
It is worrisome that the kind of enthusiasm displayed by the States after adopting the African Charter appears to be lacking with respect to the Ouagadougou Protocol. The questions we must ask are whether the States are fatigued after only four decades of experiments in regional human rights protection?
We might ask why is there an unwillingness to execute Article34(6) declarations and why have some States that willingly executed Article 34(6) Declaration withdrawn the same after a few years? What could have been done differently to prevent those States from withdrawing or to even encourage fresh ratifications and Article 34(6) Declarations? Why are some States unwilling to cooperate with provisional orders of the Court? We need to ask and reflect on these tough questions.
We must find some common grounds as we move forward. There might be a need for further interaction between the court and member States and civil society on how to work through these issues. The general reluctance of States to concede sovereignty is not peculiar to African States, but it is possible for us to be more creative about complementarity for instance.
I make these submissions recognizing very clearly that going by the present constitutive documents of the courts and the AU Charter, we are not in a position to effect what I am proposing but I believe by way of amendments, we may be able to at least, experiment with some thinking out of the box on complementarity.
For example, could we for instance consider the possibilities of the courts after their own rulings, making some recommendations for the consideration of the Supreme Courts of Member States? This would of course involve further reflections and amendments to constitutive documents where necessary.
But the point being made is that it should be possible to change tactics from time to time while keeping the strategy and vision constant.
State Parties, of which I am a representative, must also recognize that the ratification of human rights treaties have consequences. Our regional institutions will only be as strong and effective as we want them to be.
The African Court, African Commission and African Committee on their parts, must co-operate with each other in the true spirit of complementarity, rather than working at cross-purposes. If they do, they will send strong signals to States that a threefold cord is not easily broken.
Civil society must continue to defend human rights and monitor governance, particularly at the national levels where they matter the most. The effectiveness of the human rights system depends, ultimately on the willingness of all stakeholders to perform their respective roles.
I believe that Africa will overcome its current governance and human rights challenges. The African Court is a work in progress, being a young institution, it needs tending and nurturing.
Arusha, like Rome, if you will permit the cliche, was not built in a day. At the start of many journeys, the path is usually uneven, with obstacles to surmount. The key is for all travellers to keep the end in focus.
I wish the African Court a fruitful judicial year ahead and more giant strides in the future.
By H.E Prof. Yemi Osinbajo,
Vice President of the Federal Republic of Nigeria.