By Jean-Richard Nononsi
In my first full week at the Institute for Human Rights and Development in Africa (IHRDA), I had the opportunity to attend the 87th Ordinary Session of the African Commission on Human and Peoples’ Rights. While the event itself was certainly impressive, there was a whiff of overarching skepticism even amongst some of the speakers. This critique emerged from the perceived divide between the ideals that were affirmed at the session, and the lack of enforcement mechanisms to ensure that those commitments were being maintained. From studying Public International Law, I was already well aware that getting states to respect the jurisdiction and decisions of international courts has always been a challenge, but there is a difference between knowing the existence of this issue, and one of my assignments at the IHRDA; manually tracking the implementation records of multiple decisions and seeing just how many orders are either functionally ignored or only implemented in a partial manner. Similarly, sitting across from the victims of human rights violations left a powerful impression on me. Some of them were younger than me, and others have actively sought redress from their governments for almost as long as I have been alive.
Several weeks after the session, I took on one of the most challenging assignments I received during my time at the IHRDA. I was tasked with drafting an advocacy brief encouraging states to make declarations under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. The Protocol is structured such that states parties must grant and maintain declarations which enable individuals and NGOs with observer status direct access to pursue them before the Court. In essence, I was asking states to deliberately open themselves up to more litigation. Even amongst the member states of the African Court, only a minority of those states have made declarations enabling direct access, and many of them have since revoked their consent. This situation creates a significant barrier to access to justice from the African Court, because without direct access, the process through which the Court may be seized of a matter is lengthy and convoluted. A case that lacks direct access can take years to be heard before the Court, only to be declared inadmissible and thrown out. In the brief, I stressed the value of the African Court, explained that the Court does not impugn the sovereignty of each state’s national courts, and argued that fully enabling the Court is a means of signalling each state’s commitment to the protection of human rights across the continent. Despite the legitimacy of all these arguments, I still felt uneasy about the fact that the effectiveness of the Court ultimately hinges on the current goodwill of each state. A change in administration or resentment over a Court decision could trigger a state to revoke its declaration at any point. Ultimately, it is up to the states themselves to decide the extent to which they will dedicate themselves to the protection of human rights. From a glass half-full perspective, I find it encouraging that the states that are committed to access to justice and state accountability can publicly, repeatedly, and substantively demonstrate how much they value those responsibilities by maintaining their declarations under the African Court each and every day.
