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28.06.2019 Feature Article

A sweet end to an epic battle: Can ACHPR overturn the exciting verdict?

I could not hide my excitement upon reading that the Justice of the Supreme Court, Justice Alfred Benin, has duly directed that some identified properties of the litigious businessman, Alfred Woyome, be sold towards the payment of the dubious 51 Million Ghana Cedis judgement debt paid to him in 2010 by the erstwhile NDC government (see: ‘Sell Woyome’s properties to pay debt to the state-Supreme Court orders;, 27/06/2019).

We are, however, well aware that in 2017, the African Court on Human and People’s Rights (ACHPR), pronounced stay of execution in the Republic of Ghana versus Woyome, and, the court is due to announce its verdict on the case, apparently, a day after the verdict by the apex court of Ghana.

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

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."

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

We cannot, in fact, deny or hide the fact that under the terms of reference of the human rights regimes, once a state joins and accepts to ratify a human rights treaty, the said state party is expected to adhere to the treaty provisions (UN 1969).

Apparently, 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).

It is, indeed, 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.

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.

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.

In addition, 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 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 conduct of 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 ratified 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).

The Charter 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, basically 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.

Suffice it to stress that 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 before submitting a case.

Unlike the European system, a state party can also report another state party (United Nations, 2004).

The downside , however, is that, 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 that regard, the African system appears somewhat complicated.

Thus, the African Regional Human Rights system can be said to be ineffective as compared to the European and the American systems, in the sense that the African system focuses primarily on promotion without any monitoring mechanisms.

Interestingly, 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).

Some experts, therefore, 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).

We can, in fact, draw an adverse inference that 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.

First, 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 the 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 a particular 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 overturn the verdict delivered by Ghana’s apex court.

If, indeed, the Article 50 of the African Charter is anything to go by, then the Commission erred in the first place by forwarding Woyome’s complaint to the Court for determination.

In that regard, Ghana should have lodged a protest with the Commission, and if possible, took 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.
[email protected]
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Kwaku Badu
Kwaku Badu, © 2019

This author has authored 764 publications on Modern Ghana. Author column: KwakuBadu

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