African Court: Only Burkina-Faso has implemented our decisions fully – Justice Anukam




Lady Justice Stella Isibhakhomen Anukam, a Nigeria national, is one of the 11 Judges on the bench of the African Court on Human and Peoples’ Rights sitting in Arusha, Tanzania. She explains to KEHINDE OSASONA in this exclusive interview the workings of the court, its successes and why Africans should embrace it.

Your Lordship ma, you just rounded off a session recently, how did it go?

The session was a very successful one I would say; in terms of judicial work we delivered five judgments and granted five provisional orders.

One of the judgments is quite remarkable. It is a public interest application between the African Commission on Human and Peoples’ Rights Versus the Republic of Kenya. It has to do with an eviction notice served on a group of indigenous ethnic minority groups (the Ogiek community) living in the Mau Forest in Kenya by the Kenyan government in 2009.

Some minority group advocates/NGOs approached the Commission on behalf of the minority group, the Ogiek Community, challenging the eviction notice.

The Commission in 2012 brought an application on behalf of the Ogiek Community and in 2017; the African Court gave its judgment on merit.

The court found violations of the African Charter by the Republic of Kenya against the Ogeik community.

The Court in pursuance to Article 27 of the Protocols establishing the Court had to make appropriate orders to remedy the violations by way of reparations.

The parties made their submissions on reparations, which after deliberations, the Court rendered her judgment on reparations at the last session.

And our judgment was to the effect that the Republic of Kenya compensates the victims (the Ogeik community) to the tune of 57, 850,000.00 Kenyan Shillings free from government tax as compensation for the material prejudice suffered by the community.

The Respondent State (Kenya) was also ordered to pay the sum of 100 million Kenyan Shillings free from any government tax as compensation for the moral prejudice suffered by the Ogiek Community.

The court under non-pecuniary reparations ordered that the Respondent State takes all necessary measures, legislative, administrative or otherwise to identify, in consultation with the Community to demarcate and titled the Ogeik ancestral land, and grant collective title to such land in order to ensure with legal certainty their use and enjoyment of their land.

The eviction attracted a lot of public interest especially among organizations. We are glad it has now been judicially resolved.

What is basically African’s court jurisdiction?

The jurisdiction of the African court extends to all disputes submitted to it concerning the interpretation and application of the African Charter on Human and People’s Rights, the Protocols establishing the Court and any other relevant Human Rights instruments ratified by the States concerned.

The African Court has the mandate to interpret and apply over matters seeking its interpretation and application, as well as matters relating to the Court Protocol and any relevant human rights instrument ratified by State parties concerned.

The Court was established in 1998 to reinforce and complement the protective mandate of the African Commission on Human and peoples’ rights, often referred to as ‘the Banjul Commission’.

The leaders of Africa in 1998 found It necessary to establish the Court because the decision of the Banjul Commission was only persuasive and not binding.

What is the African Court doing differently from say ECOWAS Court and the world court in The Hague?

The African Court is an organ of the African Union. Its jurisdiction is strictly over matters relating to the interpretation and application of the African Charter and other human rights instruments. We are presently not a Court of justice.

The ECOWAS Court is a Community Court of justice, an organ of ECOWAS with the role to interpret and apply treaties and Protocols of ECOWAS.

It can handle other matters beyond human rights such as strict elections matters, cross-border issues, territorial matters etc The ECOWAS Court is a sub-regional Court.

The World Court, which is known as the International Court of Justice is an organ of the United Nations. It settles disputes between States in accordance with laws and gives advisory opinions on international legal issues.

Cuts in… What of adjudication compared to the regular courts?

Well, the court procedure is almost the same in the sense that a litigant files his application and the court will ascertain whether it has jurisdiction and whether the application is admissible in line with the rules of the court in question. Then examines the merits of the case based on the evidence before it, and renders its judgment.

Although, what we look as an International Court in establishing jurisdiction may differ from what the domestic or national Court will need to ascertain.

For us, we are guided by the provisions of the African Charter and the Protocol setting us up. We first ascertain whether or not the applicant has exhausted local remedy before coming to us. This is very fundamental.

By virtue of Article 56, of the Charter, the Court lacks competence over a matter where local remedy has not been exhausted, and application not filed before us within a reasonable time thereafter.

This is part of the admissibility test. Reasonable time could mean 6 months or more after exhaustion of local remedy.

In addition, the application must not be based on media speculation or has been settled by the ECOWAS Court or any other international court to avoid forum shopping, litigation over the same issue, double compensation, conflicting judgments that will threaten the stability and legitimacy of international human rights law.

It is after we have resolved these two fundamental issues of jurisdiction and admissibility that we proceed to look at the merits of the application.

How many Judges do we have on the bench and are you satisfied with the level of performance of the court?

The court is performing well. It is composed of eleven Judges, who are nationals of Member States of the African Union.

The Judges are selected based on gender and geographical representation.

I am from West Africa, Nigeria precisely but we also have Judges from East Africa, Central Africa, North Africa and Southern Africa. Two from each sub region and a floating Judge.

For now, it is only the President that works full time, the other Judges work on part time basis. And with the enormous work, the policy makers may consider increasing the number of Judges on the bench and make all the Judges work on a full time basis.

Is there any follow-up medium designed to ensure that judgment pronouncements are adhered to by parties and countries?

If you look at the protocol establishing the court, there is a provision, Article 30 on the execution of judgment.

Under Article 28, judgment is expected to be delivered within 90 days, after deliberations, we are expected in line with Article 29 to notify the parties to the case of the judgment and all member States of African Union, and the Commission.

In addition, under Article 29 sub 2, the Council of Ministers (a body of foreign Ministers of member States) is responsible for monitoring the execution of our judgments on behalf of the assembly of heads of states and governments.

They are to ensure that parties comply within the judgment rendered within the stipulated time.

Under Article 31, the African Court has the responsibility to report on non-compliance with our decision during the African Union Summit.

In reality, the Court has a challenge in the area of execution of judgments which is presently put at about 7% compliance.

So it becomes a thing of worry for us as a Court. Except for Burkina-Faso who has fully implemented our decisions, some countries have done so partially and some have not at all.

Unfortunately, there is no provision in the Protocols establishing the Court for sanctions for non compliance.

We hope that the AU will look into this area by way of reform as time goes on.

We rendered some judgments that some countries have implemented, thereby improving on their human rights status. A good example is Tanzania.

In the area of free legal assistance for persons accused of criminal offences death penalty or long term sentences. Today, Tanzania has enacted a law that gives its citizens access to free legal assistance and it has helped in reducing the rate of violations.

As Nigeria’s representative in the court, how much longer are you staying in the court and what next after?

A Judge of the Court has tenure of six at the first instance and another six years if re-elected.

By God’s grace, I am willing to exhaust my full tenure so as to contribute more to the development of our jurisprudence in international human rights in Africa.

What for you was the major achievement or landmark aside from the judgment you mentioned earlier at your last session?

There was for the first time, a tripartite judicial dialogue involving the ECOWAS court, the East African Court of Justice and the African court.

It provided an avenue for robust discussion in the area of adjudication in the three Courts, and we intend to continue because of the laudable gains.

What inspired the annual training for the media practitioners across Africa?

The media workshop by the African court for the media was born out of the need to establish requisite visibility for the African court.

The court was set up for Africans, and when they are not aware of its establishment, how will they approach the court? How will journalists’ put up accurate reportage and proper coverage of the workings of the Court?

Our activities are under-reported and there is a need to get Journalists to be acquainted with what the court is doing and be stakeholders’ going forward in promoting and protecting the Human and People’s Rights of African citizens across the continent.

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