The Emerging Jurisprudence of the African Human Rights Court and the Protection of Human Rights in Africa.

• Author: Mbaku, John Mukum

TABLE OF CONTENTS I. INTRODUCTION 369 II. THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS 374 III. THE AFRICAN COMMISSION 377 IV. THE AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS 378 V. THE JURISPRUDENCE OF THE AFRICAN HUMAN RIGHTS COURT AND THE PROTECTION OF HUMAN RIGHTS IN AFRICA 381 A. Introduction 381 B. Request for Advisory Opinion by the Pan African Lawyers Union 381 C. African Commission on Human and Peoples' Rights v. Republic of Kenya 385 D. Association pour le progres et la defense des droits des femmes maliennes (APDF) and the Institute for Human Rights and Development in Africa (IHRDA) v. Republic of Mali 394 VI. THREATS TO THE AFRICAN HUMAN RIGHTS COURT 403 A. Introduction 403 B. The Impact of the New Rule 130 on the African Commission's Referral System 406 C. Tanzania's Decision to Withdraw Its Article 34(6) Declaration 408 D. The Republic of Benin and Its Article 34(6) Declaration 410 E. Cote d'lvoire's Withdrawal of Its Article 34(6) Declaration 412 F. Ingabire v. Republic of Rwanda and Legal Implications of Rwanda's Article 34(6) Withdrawal 413 G. The African Human Rights Court's Concerns about Article 34(6) Withdrawals 422 H. Funding and Budgetary Issues Afflicting the African Human Rights Court 424 VII. SUMMARY AND CONCLUSION 429 I. INTRODUCTION

In an article published in 2021, Mausi Segun, the executive director of Human Rights Watch's Africa Division, argued that human rights abuses had escalated in Africa during the COVID-19 pandemic. (1) She noted that 2020 had introduced the world to a "new normal" characterized by "waves of almost worldwide protests on racial injustice and police brutality that resonated loudly in Africa." (2) As the virus spread from China to various parts of Africa, noted Segun, "incidents of Covid-linked discrimination and hate crimes, frequently targeting Asians in African countries, as well as discriminatory and xenophobic treatment of Africans in China," became pervasive. (3)

In addition, misinformation by both state and non-state actors in several African countries (e.g., Burundi and Tanzania) spread primarily through various internet platforms and undermined efforts to fight what was a fast-spreading virus. Most importantly, politically motivated internet showdowns by opportunistic and dysfunctional governments "violated the right to life-saving information about the global health crisis" and negatively impacted the health of many people, especially the poor. (4) Research shows that "[m]isinformation and miscommunication disproportionally affect individuals with less access to information channels, who are thus more likely to ignore government health warnings." (5) In addition, research by Amnesty International (AI) determined that a "[p]andemic hits those shackled by oppression hardest thanks to decades of inequalities, neglect and abuse." (6)

When the COVID-19 pandemic hit the African continent, many governments responded by introducing "severe restrictions on movement and the freedom of assembly," including, in some cases, "full lockdowns." (7) The enforcement of these COVID-19-related restrictions "triggered arbitrary arrests, beatings, torture and extrajudicial killings by government forces in Kenya, Nigeria, Rwanda and [South Africa]." (8) Many governments throughout the continent were using laws designed to manage the pandemic and minimize its spread to violate the human rights and fundamental freedoms of their citizens. As determined by AI, African politicians weaponized COVID-19 to significantly increase assaults on human rights. (9)

Throughout Africa, "[d]omestic and gender-based violence increased" significantly during COVID-19-related curfews and lockdowns, with South Africa's "President Cyril Ramaphosa describing it as a scourge and a declaration of war against women." (10) In addition, many countries "forced schools to shut down, leaving millions of children without education and disproportionately harming girls." (11) COVID-19-related human rights violations had a disproportionate impact on historically vulnerable groups such as "migrants, minorities and low-income workers." (12) In addition, in 2020, many countries in Africa held general elections, many of which were pervaded and tarnished by violence, (13) as governments responded to citizens' protests and any form of political criticism with violent repression. (14)

Since government security forces responded with violence against peaceful protesters in the Anglophone regions of Cameroon in 2016, thousands of civilians have been killed, seven hundred thousand children have been denied the right to attend school, and more than 677,000 civilians have been displaced internally. (15) In addition, more than forty-three thousand Anglophone Cameroonians have been forced to flee to neighboring Nigeria where they face an uncertain future. (16) Unfortunately, Nigeria has not met its obligations under international law to protect these refugees. For example, at the request of the Biya regime in Cameroon, the Nigerian government forcefully repatriated forty-seven Cameroonian opposition members and sent them back to Yaounde, Cameroon's capital. (17) A Nigerian court later ruled that the Nigerian government's actions were illegal and unconstitutional because the deportees had applied for asylum and qualified as refugees. (18)

Throughout the continent, state and non-state actors "have been implicated in massacres, targeted killings, sexual violence, burning and looting of villages, kidnappings, forced recruitment--including of children--attacks on students and teachers, and illegal occupation of schools." (19) Additionally, the inability or unwillingness of governments to hold perpetrators of human rights violations accountable for their crimes has further exacerbated the "already fragile humanitarian and human rights situation in the continent." (20)

In April 2020, Human Rights Watch released a report of its investigation into massacres in the village of Ngarbuh in Cameroon's North West Region. (21) The report revealed that on February 14, 2020, "government forces and armed ethnic Fulani killed at least 21 civilians, including 13 children and 1 pregnant woman." (22) Many observers argued that the "alleged use of ethnic militia by the government adds a dangerous new dimension to the conflict." (23) Although the Cameroonian government had initially denied that military personnel were involved in the massacre, President Biya's office later issued a statement on April 21, 2020, admitting that soldiers had taken part in the killings. (24) However, no senior military official has been held accountable for this gross human rights violation.

For many decades, the recognition and protection of human rights in Africa were relegated to "a handful of courageous and beleaguered civil society activists." (25) At the same time, governments either actively engaged in the direct mistreatment of their citizens and the violation of their human rights and fundamental freedoms or failed to protect them against abuse by non-state actors. In some cases, state and nonstate actors actually worked together to commit atrocities against citizens. Noteworthy examples include genocides in Rwanda (26) and the Western Darfur region of Sudan. (27)

However, in the 1990s, many African countries committed themselves to constitutionalism and the protection of human rights. (28) As interest in governance systems undergirded by the rule of law spread across the continent, the critical role played by respect for and protection of human rights in Africa's long-term peace and security, as well as economic and human development, began to gain widespread recognition. (29) In fact, many national governments, civil society organizations, and intergovernmental organizations began actively engaging in issues of human rights and how to recognize and protect them. For example, in their post-apartheid constitution, South Africans expressly referred to human rights and their protection. (30)

Earlier in June 1981, the Organisation of African Unity (OAU) had adopted the African (Banjul) Charter on Human and Peoples' Rights, which entered into force on October 21, 1986. (31) The International Federation for Human Rights (Federation Internationale des ligues des droits de l'homme) has noted that "[t]he creation of a coherent continental system of human rights protection in Africa responds to a broader international movement to develop regional systems of human rights protection." (32)

This movement to establish regional systems of human rights protection began with the adoption of the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950, followed by the American Convention on Human Rights in 1969 (which established the Inter-American Court of Human Rights). (33)

The delay in establishing human rights institutions and instruments in Africa is due, inter alia, to the fact that in the 1970s and 1980s, some African governments were more concerned about national sovereignty than building a supranational human rights protection system that could expose their continued violation of human rights. (34) The OAU also did not emphasize the protection of human rights. (35) In fact, the 1963 charter, which established the OAU, did not impose an explicit obligation on member states to ensure the protection of human rights and fundamental freedoms. (36)

However, by the time the Assembly of Heads of State and Government of the OAU met in Monrovia, Liberia, in 1979, they had become more receptive to the establishment of supranational systems of human rights protection. At that meeting, the delegates voted unanimously to ask the OAU Secretary General to assemble a committee of experts and charge them with drafting a regional human rights instrument for Africa, similar to the European Convention on Human Rights and the American Convention on Human Rights. (37) However, some African governments continued to frustrate the adoption of...