The African Court May Have Erred By Accepting Woyome’s Complaint

Under the terms of reference of the human rights regime, once a state had joined and ratified a human rights treaty, the said state party is expected to adhere to the treaty provisions (UN 1969).

Almost three decades ago, Louis Henkin opined that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."

But the all-important question is: do states really adhere to the national, regional and the international human rights regimes?

This article seeks to explore and analyse the creeping justice and the polemic of commitments and compliance in the international human rights regimes, with special emphasis on the recent African Court on Human and Peoples Rights stay of execution in Woyome versus the Republic of Ghana.

Interestingly, the extant literature is silent on how states commit to human rights treaties that have no reciprocate benefits, unlike trade and other financial agreements which extend mutual benefits (Hathaway 2003).

Besides, it is puzzling to see states committing to human rights treaties, given that the regime rather invites the international community to interfere in the affairs of the sovereign states, in particular, how states treat their citizens (Hathaway 2003; Wotipka and Tsutsui 2008).

The African Court on Human and Peoples' Rights (the Court) is a continental court established by African countries to ensure protection of human and peoples’ rights in Africa. It complements and reinforces the functions of the African Commission on Human and Peoples' Rights.

It is worth stating that the Court was established through Article 1 of the protocol on the Establishment of an African Court on Human and Peoples’ Rights, which was adopted by Member States of the then Organization of African Unity (OAU) in Ouagadougou, Burkina Faso, in June 1998.

Apparently, the Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples' Rights, the (the Charter), the Protocol and any other relevant human rights instrument ratified by the States concerned. Specifically, the Court has two types of jurisdiction: contentious and advisory.

According to the Protocol (Article 5) and the Rules (Rule 33), the Court may receive complaints and/or applications submitted to it either by the African Commission of Human and Peoples’ Rights or State parties to the Protocol or African Intergovernmental Organizations.

Non-Governmental Organizations with observer status before the African Commission on Human and Peoples’ Rights and individuals from States which have made a Declaration accepting the jurisdiction of the Court can also institute cases directly before the Court.

Per Article 50 of the African Charter on Human and Peoples Rights, the Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.

The crucial question then is: did Woyome exhaust all the domestic remedies before submitting “a statement” to the Commission for onward submission to the African Court of Human and Peoples Rights?

The abusive African litigants may well explain why a number of states parties are refusing to endorse the competence of the African Court on Human and Peoples Rights. As at July 2017, only eight (8) of the thirty (30) States Parties to the Protocol had made the declaration recognizing the competence of the Court to receive cases from NGOs and individuals. The eight (8) States are; Benin, Burkina Faso, Côte d’Ivoire, Ghana, Mali, Malawi , Tanzania and Republic of Tunisia (ACHPR, 2017).

The African Charter on Human and People’s Rights was adopted on 27 June 1981, and came into force on 21 October 1986 (ACHPR, 2013).

African Charter on Human and People's Rights recognises the collective rights. It acknowledges the correlation between individual and peoples’ rights. It also recognises the right to development.

Take, for instance, Article four of the Charter incorporates the rights and duties pertaining to individuals and groups alike, for example, the right to life.

The Charter addresses specifically, the rights and duties of the community, inter alia the family, society and the nation in question. Moreover,, the Charter places emphasis on third generation rights, which are primarily the rights to peace, solidarity, a healthy environment and development.

More significantly, Article thirty of the African Charter established the African Commission on Human and People’s Rights. The “Commission” mandate is to promote human and people’s rights in Africa . It does this by gathering “documents, undertakes studies and research on African problems in the field of human and peoples' rights, encourages national and local institutions concerned with human and peoples' rights and make recommendations to Governments (article 45, 1)”(United Nations,2004).

Unlike the European system, the African Charter did not initially provide for a designated court on human and people’s rights. However, in 2006, an African court on human and people’s rights was established through the adoption of article one of the 1998 optional protocol to African Charter on Human and People’s Rights on establishment of African Court on Human and people’s Rights. The court has jurisdiction over cases concerning the interpretation and application of the African Charter on Human and People’s Rights.

But all said and done, the African system allows individuals to make applications of alleged violations to the “commission”. More importantly, the applicant does not have to be connected to the alleged violations; a state party can also report another state party, unlike the European system (United Nations, 2004).

The downside though, is, unlike the European system, whereby individuals have direct access to the European Court of Human Rights, the individual complainants in African system have to go through the “Commission”. In this regard, the African system appears somewhat complicated.

Given the circumstances, I cannot vouch for the effectiveness of the African Regional Human Rights system as compared to the European and the American systems, in the sense that the African system focuses primarily on promotion without any monitoring mechanisms. More room for improvement.

Interestingly, however, the world society approach theorists observe that most states only join the human rights regime to acquire legitimacy, and thereby deflecting possible future criticisms (Hafner-Burton and Tsutsui 2005).

Thus, some experts suggest that the same factors that urge a state to comply with human rights treaties, the same factors would dissuade a state from committing (Hathaway 2007). By inference, a sizeable number of states join the human rights regime without the desire to comply with the treaty provisions.

Similarly, Hafner-Burton and Tsutsui (2005) building on the influential legal models by Chayes and Chayes (1995), note three reasons that explain state compliance. To begin with, they stress that organisational power results in less costly compliance and more attractive in the absence of compelling grounds for noncompliance. Secondly, they observe that international treaties emanate from prolonged negotiations that represent the national interests of member states. Hafner-Burton and Tsutsui explicate that because states ratify treaties when their national interests are met, they are inclined to comply with the treaties they choose to join.

In a grand scheme of things, Human rights regimes require ratified countries to give in to the international community to interfere in their human rights practices towards their citizens.

The ratified countries, so to speak, would commit to human rights treaties not so much because of the costs and benefits in doing so, but as a result of genuine commitment to the principles of such a human rights treaty.

In the case of Woyome versus the Republic of Ghana, I am of the firm conviction that the African Court on Human and Peoples Rights lacks the jurisdiction to sit on the case as it is still pending in our apex court. If, indeed, Article 50 of the African Charter is anything to go by, then the Commission has erred by forwarding Woyome’s complaint to the Court for determination.

In that regard, I will suggest that Ghana lodges a protest with the Commission, and if possible, takes the necessary steps towards denunciation.

Even if, the Africa Charter is somehow silent on denunciation, Ghana can still follow the footsteps of others and activate Article 56 of the 1969 Vienna Convention on the Law of Treaties and denounce its endorsement on the competence of the African Court on Human and Peoples Rights.

K. Badu, UK.