The much needed continental court of justice remains a distant dream as legal experts say the process may take more than just signatures. Experts say there is lack of political will on individual African Union member states to take concrete steps to establish the court.
African countries have since 2005 wanted to establish the African Court of Justice and Human Rights (ACJHR) to replace the existing African Court of Human and Peoples’ Rights (ACHPR).
But to date no country has ratified the protocol establishing the court although the final amendments of the protocol were adopted by heads of state during last month’s African Union Summit in Equatorial Guinea.
For the court to be established, at least 15 countries have to ratify the protocol.
Several governments have expressed the need to have the court established and operational.
As Judges from the African Court of Human and Peoples’ Rights met in Kigali for their third annual meeting, last week, the court’s president, Sophia Akuffo, spoke of the challenges hindering the establishment of the continental court of justice.
“A recent revision of the protocol establishing the court of justice gives it criminal jurisdiction but, it’s a brand new instrument that will require 15 ratifications to come into effect,” she said.
In presenting how the establishment of the court is far from being realised, Akuffo pointed out that even after 27 years since the establishment of the court, only seven countries had ratified and made declarations.
“When we get the 15 ratifications and declarations, there will be a transition of this court to the African Court of Justice and Human Rights,” she said.
She, however, pointed out that the existing court doesn’t have the jurisdiction to try individuals accused of violating human rights and only deals with countries.
“The duties of the court are clearly spelt out in the instrument that establishes it. So if it is not established as a court of general jurisdiction then it has to stay within the parameters of the jurisdictions that have been drawn for it,” Akuffo said.
Relevance of ICPHR
African leaders have for long expressed concerns over the International Criminal Court trying Africans on ground that the court is biased since it has so far only tried African defendants.
Yet the available alternative is having cases in Africa tried by a continental court, and the only available one is the ICPHR which has no mandate to try criminal cases.
Akuffo said although most human rights violations might have possible criminality, the court she heads cannot try such criminal issues.
“All we can say is that there has been violation of human rights by the state and not an individual,” she said.
While speaking at the joint annual meeting of the African Commission of Human and People’s Rights and the court, the chairperson of the commission, Sylvie Zainabo Kayitesi, emphasised the relevance of the two sister institutions.
“Africa needs us and is calling upon us to work towards creating an Africa where rights are protected, respected realised and enjoyed by all,” she said.
Her views were echoed by the Minister for Justice, Johnston Busingye, who said that Rwanda has been partnering with the Commission since the African charter came into force by regularly reporting on the status of human rights in the country and working on implementing the recommendations given.
“In the quest to realise equality and personal dignity of every citizen of Africa, the ACHPR plays a very important role ... we are particularly interested in extending the jurisdiction of the court to cover international crimes. If that idea becomes a reality, it will lend some practical ideas to the principle of finding solutions to Africa’s challenges here in Africa,” he said.
The minister said it is particularly unfortunate that the biggest share of global conflicts take place in Africa.
“...we therefore need to put our heads together, to continue working towards finding peaceful solutions to Africa’s problems. Rwanda pledges not to be left behind in the search for Africa’s peace,” he said.
Busingye acknowledged that Rwanda is yet to ratify the protocol, saying it will be tabled in Cabinet first for approval before being presented to Parliament for ratification.
Speaking to journalists after a two-day state visit to Kigali, last week, Equatorial Guinean President Teodoro Obiang Nguema Mbasogo decried the lack of “an African voice” that can defend the sanctity of the continent against external aggression, including through such institutions as the ICC. He reiterated the need to have an African court that can try African criminal cases.