Before landing in Banjul, I had often heard the quip that I would have to get used to a different pace of life, to the more relaxed so-called “African time”. The concept was not unfamiliar, as my own Lebanese family often joked about guests being on Lebanese time when strolling into a dinner an hour late. Culturally speaking, this was one of many similarities I noted between West African and Middle Eastern communities. For better or for worse, one would hit cozy doldrums in daily life instead of the North American rat race.
In the seven-odd weeks since I started working at the Institute for Human Rights and Development in Africa (IHRDA), however, I have encountered a different kind of pacing through international human rights law. The sheer scope and breadth of this field slows matters down to a glacial pace that at times that forces you to stop, take a breath, and re-examine your efforts.
The work to which I have been exposed shows two principal barriers that make themselves clear in human rights legal processes: procedure and socially or culturally entrenched practices.
The former looms tall over international human rights law. Every single case requires massive amounts of international coordination, translation, logistical work, and all of this without having approached legal issues yet. The issues of sovereignty, jurisdiction, and admissibility all mire efforts from human rights advocates to hold various states accountable for their actions. Due to conditions on exhaustion of local remedies or a state’s ratification of key treaties, justice can be delayed despite an advocate’s best efforts.
Recently, one of our senior solicitors sat to listen to the judgement passed down by the Economic Community of West African States (ECOWAS) Community Court of Justice for a case he had brought before it nearly 6 years prior. It had been a case marked by remarkably long delays, which had been punctuated by COVID-19, and it was finally time to hear what he had confidently expected to be a positive judgement. Upon hearing it, the judges ignored clearly stated uncontested facts, reversed long-standing doctrine on the right to life that would have worked for the plaintiff, and closed the Zoom call without any opportunity for any comment. Procedure had been followed, nearly abused, and then left a mistake in law as etched in stone due to the nonexistence of appeals in the Community Court of Justice. The plaintiff received nothing, including a final word, despite years of delay.
The procedure issue is exacerbated by questions of jurisdiction. There are four key treaties in African human rights systems: the African Charter on Human and Peoples’ Rights, the Protocol Establishing the African Court on Human and People’s Rights, the Maputo Protocol on Women’s Rights, and the Charter on the Rights and Welfare of the Child. Each of these has varying degrees of ratification, with 54, 30, 42, and 47 state ratifications of 55, respectively. However, these numbers fluctuate, as states have withdrawn from these treaties’ jurisdictions through backdoor clauses such as Article 34(6) of the Establishment of the African Court (seen in Ingabire Victoire Umuhoza v Rwanda). Incentives such as economic benefits from Bretton Woods institutions or enhanced international reputation lead to the adoption and immediate rejection of treaties once given the option in the face of court summons. Consequently, the very procedure laid out in these instruments ends up undermining their effectiveness.
On the other hand, socially or culturally entrenched practices present another challenge. Matters including child marriage, female genital mutilation (FGM), or even mob justice against “witchcraft” all tie back to issues layering various degrees of cultural practice, religion, and socioeconomic status. Each of these issues requires long-term solutions and commitments to change that are not only passed into law but that are also enforced with a vehemence regardless of initial pushback.
Taking child marriage as an example, the IHRDA won a case against Mali nearly a decade ago on the matter. Yet, this social practice continues today, albeit at a reduced rate, because its government has yet to initiate procedure on any legislation, delaying change requiring generations of effort. Fervent educational campaigns, state cooperation and enforcement, and grassroots-level application of these practices are all required to maintain any momentum on the issue. However, as has been confirmed by many a colleague, all attempts at free and informed consent fall flat without widespread popular approval. One of IHRDA’s advocacy officers addressed the issue of grassroots efforts to reduce FGM practices during a coffee break in late May:
“Do you think any of these girls would know what that [FGM as a symbol of adulthood] means? Give them a chance, with thorough education and wait for them to turn 18, and allow them to make that choice,” she asserted.
“You know it’s not as easy as that! Do you think that their communities will really allow that to be the case?” One of the IHRDA’s strategic litigators retorted. Nearly the entire room looked down at their coffee cups in silence to consider that reality.
My work thus far on violence against women accused of witchcraft in Northern Ghana has shown that pushing for progress is indeed a long-term game. Camps with poor living conditions have harboured victims of exile due to such accusations for hundreds of years. The numerous instances in which police officers have been beaten away from their jurisdictions trying to arrest perpetrators shows that written law by itself does not create change and that active social efforts toward reinforcing cultural habits are necessary over time.
The scenes painted above seem dire, and I may have my gripes on the international legal system, but these systems are still unquestionable necessities. Taking states to court allows for stock-taking of the concrete steps undertaken towards compliance with treaties and identifies problems and challenges to the full implementation of instruments. It allows victims to have a voice against otherwise untouchable goliaths.
I have learned that human rights advocates might not win every case, but nor should they be discouraged. Every case taken to court is another step towards the empowerment of victims and state accountability for failing their obligations.
I still have just over a month here in the Gambia. Thus far, I have explored its beautiful shorelines and met amazing people. I have attended the 75th Ordinary Session of the African Commission on Human and People’s Rights and have worked on cases relating to child marriage and violence against those accused of witchcraft. I have sat in on bountiful benachin lunches and witnessed breathtaking sunsets.
I can’t wait to see what else is next!