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Tag Archives: African Commission on Human and Peoples’ Rights

Challenges of a creation of an African Court of Justice and Human Rights, by Chofor Che, originally published in French at LibreAfrique.org, 2 March 2015


The African Union (AU) in an early 2015 historical summit with minsters of AU countries reechoed the desire for the creation of an African Court of Justice and Human Rights (African Court of Justice). This was after a lot of contestation with respect to the bias role the International Criminal Court (ICC) has played in judging Africans leaders especially. According to a report by Voice of Nigeria dated February, 03, 2015, during the above mentioned AU summit in Addis Ababa, President Uhuru Kenyatta of Kenya, who was one of the first Head of State to sign the Malabo protocol establishing the new African Court of Justice, was of the view that the proposed African Court of Justice was here to stay and announced that Kenya was going to contribute 1 million U.S. dollars for the African Court of Justice to go operational. The creation of the African Court of Justice brings to mind several concerns. Now that Africa is composed of several states with varying judicial practices, what legal system will the African Court of Justice opt for in her judgments? How are the judges for this court going to be selected and will these judges be independent and impartial from the whims and caprices especially of African Head of States? Are all member states going to support the running of this court financially or will the court depend on foreign aid as several regional bodies on the continent?

11 African states including Kenya have already signed the protocol on the creation of the African Court of Justice to look into criminal cases referred to the ICC. This revelation was made known to Voice of Nigeria during an interview in Nairobi by Nigerian Cabinet Secretary for Foreign Affairs, Amina Mohamed. In actual fact, 14 states are supposed to sign the above mentioned protocol for the African Court of Justice to go operational. Kenya has sworn to lobby more African states to sign this protocol on the creation of the African Court of Justice. According to the above mentioned report by Voice of Nigeria, Kenyan President purports that the establishment of the African Court of Justice will put in place a wider African transitional justice police framework.

There is no gainsaying that the African Court of Justice will have to grapple with the application of justice which flows from several legal systems especially civil law and common law. Africa is composed of states with varying legal systems when it comes to justice especially in adjudicating over crimes against humanity.

Experience has shown that the judiciary in Africa is still not adequately independent. Judges are still appointed by Head of States. Even at the regional level judges especially at the African Court on Human and Peoples’ Rights are endorsed by their Head of States. This in actual fact remains an aberration to the independence and Impartiality of decisions on the continent and obviously with respect to the envisaged African Court of Justice. Some analysts argue that the African Court of Justice may be a medium for the impunity of African Head of States and statesmen. These analysts also argue that because of the inadequate independence and impartiality of judges at the African Court of Justice, African leaders will continue to unconstitutionally modify state Constitutions so as to remain in power.

The continent already boasts of an African Commission on Human and Peoples’ Rights. The continent also boasts of an African Court on Human and Peoples’ Rights amongst several regional judicial institutions. There is a tendency that the creation of the African Court of Justice will emanate to the duplicity of tasks with respect to judging crimes against humanity.

African leaders have not been able to adequately finance the AU and her institutions. The AU for instance depends greatly on foreign aid which makes the operation of affairs of this institution dependent on the West. Although Kenya has pledged to finance the African Court of Justice with 1 million US$, this institution will in the long run also depend on foreign assistance just like the AU. Decisions of this judicial body will thus be wanting.
There is equally a tendency for the continent to be isolated in an époque of globalisation. The creation of the African Court of Justice should not be a leeway for the continent not to partake in world affairs especially doing business with the West.

If African Head of States want just a Court of Justice which mirrors domestic courts which are currently mired with inadequate independence and impartiality, then this new judicial institution would just be a way of escaping from international justice and will defeat the purpose of its creation. The African Court of Justice needs to be adequately independent and impartial. This judicial institution needs to be financially independent. This judicial institution needs to also be able to judge African Head of States without fear or favour especially those who continue to unconstitutionally manipulate state constitutions.

 
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Posted by on March 4, 2015 in African Union

 

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An argument for national unity and the preservation of diversity against secession for African states, by Chofor Che


There has been a wave of secessionist tendencies in the world and particularly in Africa prior to independence. Some good examples in Africa include the case of Anglophone and Francophone Cameroon which is an ongoing predicament. Another example is the case of Zanzibar and Tanzania which is under scrutiny by the government of Tanzania. Other examples in Europe include the case of the United Kingdom and Spain. Judging from cases like the chaos which has befallen South Sudan after it seceded from Sudan, the question is should Africans continue to clamor for secession or independence rather than find ways to strengthen national unity and diversity? Are there any alternatives to secession which African states should consider?

There is no gainsaying that the issue of secession seems to be en vogue. Recently Great Britain was almost at the brink of secession when Scotland attempted to break away from the union. Had it not been for the verdict of the referendum of the 18 of September 2014 which saw a majority of Scottish voters say ‘No’ to secession, Scotland would have been an independent state.

The issue of secession is also a hot debate in Spain. Section 2 of the 1978 Constitution suggests that the Spanish Constitution is instituted upon the ‘indissoluble unity of the Spanish nation, the common and indivisible patria of all Spaniards, and guarantees the right to self-determination of the nationalities and regions of which it is composed and the solidarity among them all.’ This has led some scholars to argue that the Spanish Constitution falls short in allowing for national diversity in the case of Spain, because it allows for self determination which to some extent gives room for secession. Presently the Catalonians are using the aspect of self determination as a way to break away from Spain. They claim to be suffering from discrimination when it comes to access to jobs, natural resources and business opportunities. Other authors argue that self determination may not necessary mean secession, but rather a clamor for a more decentralized or federal system of government.

Secession seems to presume that disgruntled groups within a state want to break away, and form their own state. Yet it is not at all clear if secession is the priority of all communities. According to experts like University of the Western Cape (UWC) Associate Professor of Law, Yonatan Fessha, separation may only be a suitable option after investigating on other possibilities and only if there is no possibility of co-existence between different groups in the state. It is therefore agreed that secession should only be considered as the final resort and not the primary option where linguistic and ethnic groups cannot be accommodated in a state.

In the cases of Cameroon and Tanzania respectively major reasons why Anglophone Cameroonians and the people of Zanzibar want to secede is because there is some aura of discrimination which persists against these people in these various states. The distribution of jobs, natural resources, educational opportunities and business opportunities is inequitable.

In the case of Kevin Mgwanga Gunme et al v Cameroon before the African Commission on Human and Peoples’ Rights (the African Commission), brought in 2003 by the Southern Cameroon National Council (SCNC), an Anglophone Cameroon based pressure group fighting for secession on grounds of marginalization, the SCNC argued that the Republic of Cameroon was an extension of French colonisation. They added that Anglophone Cameroonians did not benefit politically and socio-economically from this union. At the 45th Ordinary Session held in Banjul, The Gambia, between 13 and 27 May 2009, the African Commission adopted the decision on the merits of the communication. The claim for secession was rejected by the African Commission especially on mainly procedural grounds that the applicant was not a legally recognised group fighting for the interests of all Anglophone Cameroonians. However, secession remains a real problem in Cameroon despite the verdict of the African Commission, as the SCNC in Cameroon has not accomplished its aim.

An example where secession has turned out to be catastrophic for national unity and diversity is the case of Sudan and Southern Sudan. Ever since Southern Sudan broke away from Sudan there has been turmoil and bloodshed. Property and families have been lost.

A probable alternative for secession may thus be to give more political and socio-economic rights to the disadvantaged group or groups in a state. This must not be at the detriment of individual rights especially as individuals must be allowed to own property, trade and circulate freely.

Authors like Professor Nico Steytler and Professor Jaap de Visser of the Community Law Centre at UWC argue that adequate decentralization to local government may be a great alternative rather than secession. This would warrant giving more financial and administrative autonomy via various national constitutions, to local government especially to disadvantaged groups. Professor Steytler also argues that a federal system of government can go a long way to protect unity and diversity. Adequate decentralization and federalism may thus be alternatives to secession. Such systems of governance allow disadvantaged groups in a state partake equitably in the opportunities found therein, if rightly applied by various central governments.

This article is originally published at LibreAfrique.org as Afrique : Quelle alternative à la sécession des États ?

 
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Posted by on October 19, 2014 in Africa Development

 

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