Regional and sub-regional human rights tribunals: the African response.

Position:Proceedings of the 2015 Annual Meeting of the American Society of International Law: Adapting to a Rapidly Changing World - Discussion
 
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This panel was convened at 9:00 a.m., Thursday, April 9, by its moderator, Abdulwahab O. Egbewole of the University of Ilorin, Nigeria, who introduced the panelists: Laurence R. Heifer of Duke University School of Law; Onuora-Oguno Azubike C of the Centre for Human Rights at the University of Pretoria; and Philadelphia attorney Ayodeji K. Perrin.

INTRODUCTORY REMARKS BY ABDULWAHAB O. EGBEWOLE *

The session featured three main papers:

  1. "Backlash Against International Courts in West, East and Southern Africa" by Laurence R. Heifer;

  2. "Seeking Solace from a Distance, Jettisoning National Court: Reliance on Supra National Judicial Bodies to Realize Economic, Social and Cultural Rights (ESCR) in Nigeria" by Onuora-Oguno Azubike C; and

  3. "African Jurisprudence for Africa's Problem: Human Rights Norm Diffusion and Norm Generation through Africa's Regional International Courts" by Ayodeji K. Perrin.

The three presentations traversed the three main regional courts of the Economic Community of West African States (ECOWAS)--Community Court of Justice, the East African Court of Justice, and the Southern African Development Community (SADC) Tribunal. The papers looked at the evolutionary emergence of the courts, the exploits of the courts, their challenges, and their strengths and failings.

The three courts were dissected from the perspectives of failed backlash, re- directed backlash, and successful backlash by Heifer. Onuora-Oguno identified the extent to which the ECOWAS Court has assisted the Nigerian State to ensure the availability of socioeconomic rights to the citizens. Perrin's presentation was essentially theoretical, giving jurisprudential underpinnings using the human rights norm diffusion and norm generation matrix to ascertain the existentialism of the African jurisprudence as epitomized by these courts.

The conclusion of all of the presentations confirmed the potentialities of the various sub-regional courts and presented a call for a rejuvenation of the SADC Tribunal, which has been suspended since 2011. The major areas of improvement were identified for the development of human rights and international law by international courts in Africa in general and at the sub-region level in particular.

* Professor of Jurisprudence and International Law at the University of Ilorin, Nigeria.

([dagger]) Harry R. Chadwick, Sr. Professor of Law at Duke University School of Law.

BACKLASH AGAINST INTERNATIONAL COURTS IN WEST, EAST AND SOUTHERN AFRICA.

By Laurence R. Helfer ([dagger)]

In a working paper based on extensive field research and interviews, Karen Alter, James Gathii, and I analyze three recent backlash attempts against sub-regional courts in East, West, and Southern Africa. (1) Our paper analyzes credible proposals by African governments to restrict the jurisdiction of these courts in response to politically embarrassing rulings. These events are not widely known, and they are at odds with the prevailing view that it is difficult to sanction international judges.

The three African courts are alike in several respects. Each is associated with a sub-regional integration community in which the primary goal of economic liberalization is supplemented by a softer commitment to human rights and good governance. Each community includes common institutional features--the adoption of legally binding rules and decision making by consensus; a requirement to consult with civil society groups; and, in principle at least, a commitment to put common interests above the preferences of any one government. Another similarity concerns the political and legal features of each community's member states, which include a mix of emerging and fragile democracies and authoritarian regimes. A further commonality relates to the key design features of each court, in particular the ability of individuals and NGOs to file suits directly against member states alleging violations of human rights.

The three courts are also hard cases for scholars who claim that sanctioning international judges is politically costly. The relatively small size of each community facilitates coordination to clip a court's wings. In addition, many African nations have a tradition of strong executive branches and weak judiciaries. The countries also share a post- colonial distrust of external interference as well as a reluctance by political leaders to openly challenge other African governments.

This essay provides a thumbnail sketch of the three backlashes and their divergent outcomes. The working paper provides more extensive background and analysis, explaining why one backlash campaign succeeded, one was redirected, and one failed and the implications for future research. A broader goal of this essay is to show that Africa's nascent international courts merit closer study by scholars.

THE ECOWAS COMMUNITY COURT OF JUSTICE; A FAILED BACKLASH

Like the two sub-regional courts in Eastern and Southern Africa, the Community Court of Justice of the Economic Community of West African States (ECOWAS) adjudicates cases filed by individuals and NGOs alleging violations of human rights. Unlike those two tribunals, however, ECOWAS judges have an express mandate to hear such cases--a protocol adopted in 2005 that grants "jurisdiction to determine cases of violation of human rights that occur in any Member State" in response to complaints by private litigants. (2)

The backlash against the ECOWAS Court stemmed from two suits against the Gambia filed on behalf of journalists who had been arrested, detained, and tortured for publishing news articles critical of the regime of President Jammeh. The cases resulted in high-profile and embarrassing rulings against the government, leading Gambian officials to launch a political attack against the ECOWAS Court in the form of proposals to narrow its human rights jurisdiction and to limit access by private litigants. (3)

These proposals were rejected by a committee of legal experts, whose decision was later endorsed by ECOWAS Justice Ministers. One explanation for the defeat of the proposals was the widely shared perception that the Gambia is a bad actor with limited political clout in the sub-region. The defeat would not have occurred, however, without the extensive mobilization efforts of West African human rights NGOs and attorneys, who issued press releases, filed lawsuits, and successfully demanded access to key meetings. These actions, tacitly supported by officials in the ECOWAS Secretariat, ensured that the Gambian backlash was well-publicized, that civil society consultation procedures were followed, and that moderate voices would be heard when experts convened to discuss the proposals.

THE EAST AFRICAN COURT OF JUSTICE: A BACKLASH REDIRECTED

The backlash against the East African Court of Justice (EACJ) arose from a dispute over a slate of candidates chosen by Kenya to sit in the sub-regional parliament, the East African Legislative Assembly (EALA). In Anyang Nyong'o v. Attorney General of Kenya, the EACJ issued an interim ruling barring East African Community (EAC) officials from swearing in the candidates until the court decided the case on the merits. (4) The Kenyan government's reaction to the Nyong'o ruling was swift and furious. Officials pursued several lines of attack, ultimately rushing through amendments to the EAC Treaty that curbed the EACJ's authority.

Kenya's first move was a behind-the-scenes campaign to kill the fledgling court. This proposal was viewed as too extreme by the presidents of Uganda and Tanzania, who were committed to reviving the fledgling East African integration project. Unable to abolish the EACJ entirely, Kenya threatened to oust the court's two Kenyan judges. This effort also backfired. The EACJ refused to be cowed and the government was later forced to admit that the corruption allegations it had leveled against the judges were baseless.

Undaunted, Kenya pursued a third approach--amending the EAC Treaty. The amendments were proposed and drafted with exceptional haste and approved by the heads of state at an extraordinary summit meeting that bypassed community consultation procedures. The treaty revisions substantially altered the EACJ's structure, jurisdiction, and access rules. The revisions split the court into two divisions; expanded the grounds for...

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