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Regional Human Rights Systems Regional HUMAN RIGHTS SYSTEMS AFRICAN SYSTEMS differences thus leave open the possibility yet to extend this principle to regional that less expertise will be devoted to criminal courts. Some proponents of the AFRICAN UNION CONSIDERS human rights and its importance will be proposal, such as Chidi Anselm Odinkalu PROPOSALS TO ADD INTERNATIONAL diminished within the new system. For of the Open Society Justice Initiative, have CRIMINAL JURISDICTION TO THE example, the proposed protocol only calls endorsed the new court as a way to expand PAN-AFRICAN COURT for five human rights judges, as opposed the complementarity principle to allow the to the current eleven that sit on the Human AU a chance to respond to situations in The African Union (AU) is considering Rights Court, and it proposes that a general African states and improve accountability whether to add jurisdiction to hear inter- court of appeals—with judges that do not in the pan-African system. national criminal law cases in the future necessarily possess particularized human African Court of Justice and Human If the AU adopts a criminal jurisdiction rights experience—hear cases from the Rights, a merger of the current human addition to the African Court of Justice human rights section. rights court and the court of justice. and Human Rights, the pan-African human Drafters submitted a proposal to the AU The debate, however, also centers on rights system would be the first regional in July 2012 to amend the 2008 Protocol the political tensions between the AU human rights system to adopt a court with on the Statute of the African Court of and the International Criminal Court an international criminal mandate, bringing Justice and Human Rights (2008 Protocol) (ICC) in The Hague. The ICC, which has with it new challenges. A major concern of to include an international criminal law jurisprudence that has come almost exclu- adopting international criminal jurisdic- section along with both the pending general sively from situations in African countries, tion is the amount of resources required to affairs and existing human rights sections. and the AU have often disagreed on how protect witnesses, engage in extensive fact- The 2008 Protocol still needs twelve more to handle cases. However, the AU has finding, and maintain the three chambers: ratifications before the AU will merge the typically only resisted moves by the ICC the pre-trial chamber, the trial chamber, African Court on Human and Peoples’ to hold current leaders of African states and the appellate chamber. For a regional Rights (Human Rights Court) with the accountable before the court, presumably human rights system, stretching resources African Court of Justice—the latter being due to the perceived negative impacts of to meet these economic needs will be a a court established in the Constitutive Act ICC indictments against African heads of challenge. Issues of jurisdictional overlap of the African Union—under one body: state in ongoing negotiations and peace with the ICC and maintaining the strength the African Court of Justice and Human processes for the AU. The AU Heads of of the current human rights mandate present Rights. Under the proposed third section, State and Government decided in 2009 additional challenges. How the AU deals the new combined Court would also have not to comply with the arrest warrant with the difficulties that will come with a jurisdiction to hear criminal cases against for Sudanese President Omar al-Bashir in new international regional criminal court individuals. However, the AU has delayed order to promote peace in Sudan. In doing could negatively impact human rights in making a decision on the matter but plans so, the AU encouraged further investi- the region but could also set a precedent to do so sometime this year. Although gation into the addition of international for other regional human rights systems to some have supported the proposal, other criminal jurisdiction to the pan-African take on international criminal mandates. stakeholders have urged the AU to recon- judicial system in light of the negative sider the proposed merger due to potential impact the indictment by an international ECOWAS COURT AGREES TO HEAR human rights ramifications. court had on establishing peace in Sudan. CASE BROUGHT BY INMATES ON DEATH More recently, the AU in 2011 took issue Skeptics of the proposal have expressed ROW AGAINST THE GAMBIA with the ICC’s charges against Moammar fear that the expanded jurisdiction into Qaddafi, the former Libyan leader, The Economic Community of West international crimes would undermine the and stated at the 17th AU Summit that African States (ECOWAS) Community human rights progress made in the region. the arrest warrant for Qaddafi hindered Court of Justice (ECCJ) agreed to hear Frans Viljoen of the Centre for Human progress toward negotiating a resolution a case against the Gambia involving its Rights at the University of Pretoria has in Libya. decision to impose death sentences. The argued that the disparate mandates between Socio-Economic Rights and Account- the proposed general affairs and human In light of the already existing tensions ability Project (SERAP), a Nigerian-based rights sections, both of which would hold between the AU and the ICC, it is unclear NGO, filed a complaint with the ECCJ in states responsible, and the international how the ICC will handle its overlap with September 2012 on behalf of two Nigerian criminal section, which would hold the proposed court’s jurisdiction. The prison inmates, Michael Ifunanya and individuals responsible, would create a complementarity principle under the Rome Stanley Agbaeze, who are currently on lack of uniformity in their operations. Statute encourages domestic prosecution death row in The Gambia. The plaintiffs The three sections would require varied and only allows the ICC to investigate allege violations of their rights to life, legal standards, intensities of fact-finding, when the domestic judicial system fails due process of law, justice and judicial and amounts of resources. These planned to do so adequately, but the ICC has independence, a fair hearing, appeal, and 75 118568_AU_HRB.indd 75 7/17/13 9:05 AM effective remedy. The ECCJ is set to hear 2012, but how it will ensure future compli- their rights to non-discrimination and free the case in May 2013. ance with ECCJ decisions from noncom- “thought, conscience or religion” had been pliant Member States remains to be seen. violated by judgments in U.K. domestic The case arises out of a controversial Justice Ana Nana Daboya of the ECCJ has courts. Articles 9 and 14 of the European order issued in August 2012 by Gambian publicly stated that noncompliance with Convention on Human Rights (ECHR) President Yahya Jammeh to execute all ECCJ decisions is a violation of Member guarantee the right to right to freedom 42 inmates on death row within a month States’ obligations and should be cause for of thought, conscience and religion and to deter violent crime in the country. financial sanctions. prohibit discrimination. Two of the cases President Jammeh executed nine of the also included issues regarding the balance inmates before mounting international If the ECCJ rules in favor of the plain- between the freedom to display religious pressure caused him to desist. Amnesty tiffs and ECOWAS takes action to enforce symbols and an employer’s stated dress International had previously labeled The the judgment, the ECCJ’s ruling could codes. The remaining two cases regarded Gambia as abolitionist in practice, catego- not just ensure the rights of the rest of the an employee’s right to abstain from serv- rizing it as one of 141 states that no longer inmates on death row but in the process ing homosexual clients because of the implement the death penalty. The nine could also help shape more broadly the employee’s personal religious beliefs. executions end a 27-year period without effectiveness of ECCJ rulings in the future. capital punishment and implicate the rights There are still 38 inmates left on death row On the issue of religious symbols, of inmates. At least one of the executed and a favorable outcome for the two plain- the two petitioners argued the employers inmates, Lamin Darboe, had an appeal tiffs in May could help ensure the right to placed undue restrictions on their religious pending at the time of his execution. life and to a fair trial, pursuant to Articles freedom by prohibiting visible cross neck- 4 and 7 of the African Charter for all laces which represented their Christian The plaintiffs want the ECCJ to order the inmates. Additionally, ECOWAS could faith. In balancing a British Airways The Gambia to enforce rights expressed in use a ruling against The Gambia to set a employee’s wish to manifest her religious several instruments. The African Charter precedent of enforcement of ECCJ deci- belief with her employer’s desire to project on Human and Peoples’ Rights (African sions against traditionally noncompliant a certain corporate image, the Court found Charter) includes the right to appeal under Member States. ECOWAS has not speci- that the employer acted unfairly. Although Article 7, which the plaintiffs were denied fied how it would enforce ECCJ decisions the company’s desire was legitimate, the after sentencing. Additionally, the African itself if it should choose to do so, but ECtHR found that the national courts had Commission on Human and Peoples’ it could take the suggestion of Justice given too much weight to the employer’s Rights adopted a resolution in 2008 calling Ana Nana Daboya and impose financial interests in light of factors including the for a moratorium on the death penalty. The sanctions on noncompliant states. Thus company permitting other religious sym- UN General Assembly has also backed a the ECCJ’s decision in May will be an bols (such as turbans and hijabs), the moratorium on the death penalty with the important one because it could poten- discreet nature of the cross, and the lack goal of abolishing the practice.
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