Chapter 13 from the African Court on Human and Peoples’ Rights to the African Court of Justice and Human Rights

Chapter 13 From the African Court on Human and Peoples’ Rights to the African Court of Justice and Human Rights

Prof. Githu Muigai*

1 Introduction Th e establishment of the African Court on Human and Peoples’ Rights (the Afri- can Court or the Court) was need based. Its predecessor, the African Commission on Human and Peoples’ Rights (the Commission), in its architecture and design, has proved to be a toothless bulldog. As aﬃ rmed by Nsongurua:

In the area of protection of human rights, the Commission stands as a toothless bulldog. Th e Commission can bark – it is, in fact, barking. It was not, however, created to bite. After more than a decade of existence, the Commission can barely be said to have made any signiﬁ cant contribution to human rights protection in the African continent.1

Th e frequent human atrocities in Africa are a clear testimony of the ineﬃ ciency of the Commission and impunity of African Governments.2 Extra-judicial executions, massacres, torture, disappearances, arbitrary detention and political surveillance and harassment are a commonplace in the entire continent.3 Recent examples of systematic human rights violations in Africa include the Rwanda genocide which

* Judge, African Court on Human and Peoples’ Rights. 1 Nsongurua J. Udombana, ‘Towards the African Court on Human and Peoples’ Rights: Better Late than Never’, (2000) 3 Yale Human Rights and Development Law Journal 45 at 64. 2 Bokassa’s Central African Republic (1966-1979), Marcias Nguema’s Equitorial Guinea (1969-1979), Idi Amin’s Uganda (1971-1979), Mobutu Sese Seko’s Zaire, Apartheid in South Africa, Sani Abacha’s Nigeria, Kenya’s cyclic post election violence cases, Rwan- da, Congo, Burundi, Liberia and Sierra Leone are just but a few examples of African States that have experienced unprecedented human rights violations. 3 Amnesty International, Africa Update: A summary of Human Rights concerns in Sub- Saharan Africa, AFR 01/005/1998, 30 September 1999, available at http://www.amnesty.org/en/library/info/AFR01/005/1998/en, (accessed on 27 June 2011). Manisuli Ssenyonjo (ed.), African Regional Human Rights System. Copyright 2012 Koninklijke Brill NV. ISBN 978 9004 21814 7. pp. 265-282. 266 Chapter 13 – Prof. Githu Muigai

occasioned the systematic killing of over 800,000 Tutsi population;4 human rights violations in Darfur (Sudan) and in Libya leading to the issuance by the Interna- tional Criminal Court (ICC) of the warrant of arrest for President Al Bashir (for war crimes, crimes against humanity and genocide)5 and for Libyan leader Gaddafi (for alleged crimes against humanity).6 Other examples include the kidnapping and killing of Burundi’s fi rst democratically elected president, a Hutu, in October, 1993, by Tutsi paratroopers, saw the killing of over 200,000 civilian population in Bu- rundi.7 Armed opposition groups in the Democratic Republic of Congo (formerly Zaire),8 Liberia,9 Somalia10 and Sierra Leone11 have committed unprecedented human rights breaches in full view of the Commission. Th is chapter traces the origin of the Commission, its architecture and design and the rationale for setting up the Court. It then examines the functioning of the Court and its complimentary role to the Commission. Th e chapter further analyses the proposed merger of the African Court on Human and Peoples Rights with the African Court of Justice to form the ‘African Court of Justice and Human Rights’ (the merged Court). Lastly, the mandate of the merged Court is considered and its future implications to the eff ective protection of human rights in Africa.

4 Human Rights Watch, Leave None to Tell the Story: Genocide in Rwanda, 1999, available at http://www.hrw.org/reports/1999/rwanda/, (accessed on 27 June 2011). 5 Th e Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09 (4 March 2009); Th e Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09 (12 July 2010). 6 International Criminal Court, Pre-Trial Chamber I, Decision on the “Prosecutor’s Ap- plication Pursuant to Article 58 as to Muammar Mohammed Abu Minyar GADDAFI, Saif Al-Islam GADDAFI and Abdullah AL-SENUSSI”, ICC-01/11-12 (27 June 2011). 7 Amnesty International, Burundi: Armed Groups Kill without Mercy, AI INDEX: AFR 16/12/96, 12 June 1996, available at http://www.amnesty.org/en/library/asset/ AFR16/012/1996/en/58aab9fb-eafa-11dd-aad1-ed57e7e5470b/afr160121996en.html (accessed on 27 June 2011). 8 Amnesty International, Amnesty International Annual Report 1997, (17 June 1997), at 270-71, available at http://www.amnesty.org/en/library/info/POL10/001/1997/en, (accessed on 27 June 2011). In 1996, a war broke out between the Tutsi-led Zairian armed groups, allegedly supported by Rwandese Governments and Zairian Government sol- diers, allegedly supported by former Rwandese Government forces and militia, occa- sioning tens of thousands civilian population deaths. 9 See Amnesty International, Liberia: Time to Take Human Rights Seriously- Plac- ing Human Rights on the National Agenda, AFR/34/05/97, 1 October 1997, available at http://www.amnesty.org/en/library/info/AFR34/005/1997/en, (accessed on 27 June 2011). 10 Amnesty International, Annual Report 1997, (n 8) above, 283-85, at 216. 11 Human Rights Watch, Sierra Leone: Getting away with Murder, Mutilation and Rape, 24 June 1999, available at http://www.hrw.org/en/reports/1999/06/24/getting-away- murder-mutilation-and-rape, (accessed on 27 June 2011).