THEME: “Integrating the jurisprudence of regional and international human rights mechanisms into national systems”
20 FEBRUARY 2023, Arusha, United Republic of Tanzania
- His Excellency Dr. Philip Mpango, Vice President of the United Republic of Tanzania, representing H.E Dr. Samia Suluhu Hassan, President of the United Republic of Tanzania,
- His Excellency Minister of Constitutional and Legal affairs,
- His Excellency Regional Commissioner of Arusha Region, our host,
- Honourable Chief Justice of the High Court of Zanzibar,
- Honourable Principal Judge of the High Court, Tanzania,
- His Excellency Blaise Tchikaya, Vice-President of the African
Court on Human and Peoples’ Rights, and Judges of the African Court,
- His Excellencies President and Vice-President of the East African Court of Justice,
- Chairperson of the African Committee of Experts on the Rights and Welfare of the Child,
- President of the Pan African Parliament,
- Your Excellencies Presidents of International and Regional Courts,
- Your Excellencies Government officials present,
- Honourable Judges of the African Court,
- Honourable Judges of International, Regional and National Courts,
- Members of the African Diplomatic Group,
- Honourable Registrar of the African Court,
- Honourable Chief Registrar of the Judiciary of Tanzania,
- Distinguished invited Guests,
- Members of the Media present,
- Ladies and gentlemen,
- All protocol observed
First and foremost, allow me, on behalf of the African Court and on my personal behalf, to express my sincere appreciation to the President of the United Republic of Tanzania, Her Excellency Samia Suluhu Hassan, represented by H.E Dr. Philiph Mpango, Vice President of the United Republic of Tanzania, for accepting the invitation of the African Court on Human and Peoples’ Rights to attend this important event, and to be the guest of honour. The Court enjoys a very good relationship with the government of Tanzania, and your presence here today, Excellency, is testimony to that cordial relationship.
On behalf of the African Court and on my own behalf, I welcome the entire African people to the Opening of the 2023 Judicial Year of their Court. We are very honoured to have you share this moment with us.
Excellencies, Distinguished colleagues and guests,
Last year, the African Court decided to institutionalized the official opening of its Judicial Year – a ceremony that will mark the opening of the Court’s business for each year, with the main objective of enhancing its visibility and engagement with stakeholders, by convening a solemn ceremony at the commencement of its first Court Sessions. The theme of that inaugural edition of the Opening of Judicial Year was “The African Court and the Africa We Want”. The theme was inspired by the slogan of the African Union Agenda 2063 – the African we want.
Building on last year’s theme, the Court adopted the theme for this year to be “Integrating the jurisprudence of regional and international human rights mechanisms into national systems”
This theme is very timely because it comes sixteen years after the establishment of the Court, twenty years after the establishment of the African Union and ten years into the First Ten Year Implementation Plan of Agenda 2063. The theme seeks to reposition the debate about the very raison d’etre, not only of the establishment of the African Court, but the entire African human rights system, and the relevance and/or contribution of the African Court to the new African dispensation.
Excellencies, Distinguished Ladies and Gentlemen
I do not pretend to have solutions to the issues I have raised within the context of the theme of this year, however my statement is a call to action for all stakeholders on the continent, especially Member States, Judges and Lawyers appearing before national and international Courts, to seriously have an introspective analysis of where we come from, where we are and where we are going, in terms of the promotion and protection of human rights, and how our individual and collective actions and decisions can or have contributed to making the Africa we want.
In 1963 when our founding leaders established the Organisation of African Unity, they emphasised that freedom, equality, justice, peace and dignity are essential for the achievement of the legitimate aspirations of the African peoples. Fifty years after the OAU was established, these ‘legitimate aspirations’ have been restated and are firmly entrenched into Africa’s blueprint – Agenda 2063.
Agenda 2063 contains the views expressed by the African people into 7 key “legitimate aspirations” – aspirations which if fully accomplished, will lead to ‘An integrated, prosperous and peaceful Africa, driven by its own citizens, representing a dynamic force in the international arena’ – that is,the Africa we want.
Just as a reminder, the seven aspirations of Agenda 2063 are: a prosperous Africa based on inclusive growth and sustainable development; an integrated continent, politically united and based on the ideals of Pan-Africanism and the vision of Africa’s Renaissance; an Africa of good governance, democracy, respect for human rights, justice and the rule of law; a peaceful and secure Africa; an Africa with a strong cultural identity, common heritage, shared values and ethics; an Africa, whose development is people-driven, relying on the potential of African people, especially its women and youth, and caring for children; and an Africa as a strong, united, resilient and influential global player and partner.
Significantly, the objectives of the African Union and the aspirations of Agenda 2063 are linked by a common thread – the human rights threat. None of the objectives of the African Union or aspirations under Agenda 2063, can be achieved without a strong human rights foundation. Our prosperity, unity, integration, development, security, peace, including our standing on the international stage are intertwined with the human rights norms and standards we put in place.
Given the intrinsic relationship between human rights, integration, peace and development, the role of the judiciary, and in particular, the African Court in our case, is extremely important. History teaches us that an independent judiciary is indispensable for the socio-economic and political development of any community.
Aspiration 3 of Agenda 2063, coupled with the vision of the African Court, that is, “an Africa with a viable human rights culture”, are crucial to the realization of the objectives of the African Union and all the aspirations in the Agenda. The mission of the Court is to “enhance, through judicial decisions, the protective mandate of the African Commission by strengthening the human rights protection system in Africa…”
Since the establishment of the Court some 16 years ago, it has rendered over 200 decisions. These decisions deal with a wide range of sensitive socio-political and economic issues that characterize the day-to-day lives of ordinary Africans. They include issues such as elections, fair trial, nationality, participation in government, indigenous populations, etc. The jurisprudence of the Court on these issues have developed a corpus of principles and established standards that seek to address human rights and related challenges on the continent.
For example, in Tanganyika Law Society and Legal and Human Rights Centre and Rev. Christopher Mtikila v Tanzania, the Court dealt with a very delicate matter which affects most African countries – the right of independent candidates to stand for elections at all levels. In Application No. 013/2017-Sebastien Germain Marie Aikoue Ajavon v. Benin, the Court dealt withthe right to participate in government as protected by Article 13 of the Charter. In Application No. 003/2017- Actions pour la Protection des Droits de l’Homme (APDH) v Republic of Côte d’Ivoire, the Court examined whether the composition of an electoral body was representative enough to ensure that citizens freely participate in the government of their country. The Court has also developed jurisprudence with respect to other rights, including the right to fair trial, rights of indigenous populations, freedom of expression, the protection of journalists, the right to nationality, right to nationality, etc.
By developing jurisprudence on these and other sensitive matters, the Court is setting standards at the supranational level, that can be used by African countries to resolve human rights and related disputes at the domestic level.
By developing these standards, it is expected that Member States and other national institutions and stakeholders would integrate them into their laws, policies, programmes, so as to develop an African human rights system based on common standards that can lead to an Africa with a viable human rights culture.
Excellencies, Distinguished Ladies and Gentlemen
The Court has delivered several landmark judgments on a wide range of issues. However, a quick look at the African legal and legislative landscape reveals that most African countries still adopt, maintain and implement laws contrary to the spirit and letter of the judgments already delivered by the Court.
One of the reasons why the Court was established was to help establish standards on human rights issues that should be followed across the continent. Therefore, it should be the case that issues settled by the Court through its judgments should be of relevance to countries other than the Respondent State(s).
Given that the African Court is a supra-national Court, the expectation is that its decisions would resonate beyond the Respondent State and prompt other countries to amend their laws and policies to conform to the established human rights standard. Judgments of the Court should serve as the basis for legal and or judicial reforms, to make sure their laws are consistent with the Charter and in accordance with the decision of the Court. This would then operate to prevent similar allegations being made against other State parties. It is also expected that these judgments will be invoked by advocates and relied on by judges at the domestic level when dealing with cases of alleged human rights violations.
The Court is pleased to note that the impact of its case law has found some form of expression in the recent adjudication in some domestic fora. For example, the High Court of Lesotho and the High Court of Kenya have referred to the case of Konaté v Burkina Faso in dealing with freedom of expression. As none of these two countries was a party to the freedom of expression cases adjudicated by the Court, the practice portrays a trend to preventive and pre-emptive implementation, that is, to avoid being condemned by the Court in a potential similar case.
Overall, however, the level of integration of the jurisprudence of international and regional courts into national systems is not encouraging, to say the least.
Several factors may account for this low level of integration. These include but are not limited to: the fact that there are very few countries that have domesticate the African Charter on Human and Peoples’ Rights and other human rights instruments,; lack of awareness about human rights instruments, let alone jurisprudence of international human rights courts; lack of awareness of the existence of the Court or how to litigate before it, lack of measures put at national level to facilitate such integration; and the absence of a mechanism at the AU level to facilitate integration.
Under Article 30 of the Protocol, all State Parties “undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.” Under Article 29 of the Protocol, the Executive Council of the African Union (AU) has been entrusted with monitoring the execution of the judgments of the Court. However, while Article 29 of the Protocol alludes to the role of the Executive Council of the African Union, the provision itself is not prescriptive of the actions/steps that the Executive Council can take or not take in discharging its role, and so far, the Executive Council has not put anything in place.
There is a lot that needs to be done if Africa, in particular Member States, are to benefit from the very rich jurisprudence of international and regional human rights bodies, including the African Court.
First, there is need for Member States to recognise the very important role of the Court in the realization of the objectives of the African Union and Agenda 2063.
Secondly, Member States must put in place concrete measures at the supra and well as national level to monitor implementation of decisions from international bodies. These measures may include but not limited to appointment of focal points, making such decisions directly implementable at the domestic level, thirdly, there is need for very wide dissemination of judgments of international human rights bodies, and training for lawyers and magistrates/judges on the possibility of incorporating such judgments before domestic systems.
Fourth, there is need to provide technical assistance to Member States that may be willing but not able to undertake the necessary reforms to be able to implement or incorporate Court decisions. To this end, the Court calls on the African Union, in particular the Specialised Technical Committee on Justice and Legal Affairs, to urgently finalise consideration of the Framework Document on Compliance and Monitoring of Court Judgments, which provides for the establishment of a Human Rights Fund to facilitate technical assistance.
Within the framework of the biennial Judicial Dialogue between the African Court and national judiciaries, measures are already being taken to ensure better collaboration and synergies. In this regard, the Court is developing an Online Human Rights Course for Judges and Magistrates in the continent.
The Court recognizes that its mandate is to complement and supplement the work that Member States are doing at the domestic level to promote and protect human and peoples’ rights. The Court is not and cannot replace the domestic institutions charged with this exercise, as the primary responsibility for the promotion and protection of human rights resides with Member States.
The effective promotion and protection of human and peoples’ rights is a collective responsibility. It requires all stakeholders to play their part. Member States as duty bearers hold the most responsibility as that are the ones who negotiate, adopt, ratify and domesticate international human rights instruments. It is Member States that set up domestic and international human rights institutions to ensure these institutions help them implement the human rights obligations they have undertaken under regional and international human rights instruments.
Again, it is Member States that put in place measures to implement decisions, judgments and recommendations of human rights bodies. It is Member States that fund and elect members of the Court and determine the Court’s budget, structure and other resources to enable it discharge its mandate. The role of Member States in the promotion and protection of human rights therefore cannot be overemphasized. The success or failure of the African Court therefore depends, to a very large extent, on the level of cooperation that the Court receives from Member States.
Long Live Africa
Long Live the African Union
Long Live the African Court
It is now my singular honour to invite Excellency Dr. Philiph Mpango, the Vice President of the United Republic of Tanzania and Guest of Honour for this solemn ceremony, to deliver the Keynote Address.
IMANI D. ABOUD
 See, Basildon Peta v Minister of Law, Constitutional Affairs and Human Rights & Others, Constitutional Court of Lesotho, CC 11/2016 (18 May 2018)
 See, Jacqueline Okuta and another v Attorney General and others Petition No. 397 of 2016.