CAN AFRICAN COURT SAVE BACEDE, MTHANDENI?

MBABANE – Can the African Court serve as last resort for Mduduzi Bacede Mabuza and Mthandeni Dube?

The African Court on Human and Peoples’ Rights (the African Court) was authorised by members of the Organisation of African Unity (OAU) in 1998. Its mission is to protect, promote and defend human rights enshrined in the African Charter on Human and People’s Rights (the African Charter) of 1981. All African states are signatories to the African Charter, which upholds fundamental civil and political rights. This week, Judge Mumcy Dlamini sentenced Mabuza, the former Hosea MP and Dube, ex-Ngwemphisi Member of Parliament (MP), to 25 years and 18 years respectively. They have a right to lodge an appeal with the Supreme Court of Eswatini.Dr Segnonna Horace Adjolohoun, the Extraordinary Lecturer at the Centre for Human Rights at the University of Pretoria and Principal Legal Officer of the African Court, said the court’s rulings were binding for all African Union (AU) member states.

Accomplishments

However, he mentioned that despite its important accomplishments, the African Court faces a host of challenges. Dr Adjolohoun said the court does not have enforcement capacity, a problem it shares with other regional and international courts like the East African Court of Justice, the International Criminal Court and the International Court of Justice.
He said it, therefore, could not enforce its rulings and had no power to compel states to respect its orders. The senior lecturer and principal legal officer did highlight many illustrative cases wherein member states complied with the court’s rulings.

For example, he referred to the African Court’s 2018 ruling in which the criminal conviction and imprisonment of opposition leader, Ingabire Victoire Umuhoza, in Rwanda. The court ruled that the criminal conviction and imprisonment of the opposition leader was a violation of her freedom of expression. She had complained that the crimes against humanity committed during the Rwandan genocide were perpetrated against Hutus as well as Tutsis. The ruling is seen as having facilitated Umuhoza’s release from prison later that year.
In 2014, the African Court ruled that the Government of Burkina Faso should provide reparations to the relatives of Burkinabe investigative journalist, Norbert Zongo, for his assassination in 1998.

Perpetrators

The court found that the government had failed to adequately investigate and pursue the perpetrators of Zongo’s murder (believed to be members of the presidential guard) and that the killing of the journalist was intended to intimidate other journalists, thereby stymieing freedom of expression. It is understood that the Burkina Faso Government honoured the court ruling by paying the reparations and resuming the investigation, which led to the arrest, in France, of the former president’s brother, François Compaoré, who continues to fight extradition to Burkina Faso. In 2023, the African Court ruled that senior civil servants in Tanzania could not be deployed to organise national elections, given the threat this posed to political neutrality and citizens’ rights to free and fair elections.

The practice had been instituted under former President John Magufuli and upheld by Tanzanian courts, prompting Bob Chacha Wangwe and the Legal and Human Rights Centre of Tanzania to take the case to the African Court. In response to the ruling, as narrated by Paul Nantulva, the Research Associate at the Africa Centre for Strategic Studies and Dr Adjolohoun, the Tanzanian Government, under President Samia Hassan, agreed to amend the National Election Act and the Criminal Procedure Act. In 2018, the African Court ruled that aspects of Mali’s 2011 Code of Persons and the Family—including the validity of marriages involving child brides, non-consenting individuals, and marriages in absentia—violated not only the human rights treaties of the African Union (AU), but also the United Nations (UN) Convention on the Elimination of All Forms of Discrimination Against Women.

Challenge

The case was brought by two Malian non-governmental organisations (NGOs) that were unable to challenge the law under the Malian legal system. The two experts pointed out though that not all cases resulted in judgments in favour of complainants. For example, in the matter of Ronward William versus United Republic of Tanzania, on the alleged violation of the right to life, the African Court found that there was no error in due process and that the applicant’s arrest and conviction were not arbitrary. However, it also found that the imposition of the mandatory death sentence contravened the African Charter and duly ordered Tanzania to bring its penal code in line with the charter’s provisions.

It also ordered Tanzania to vacate the sentence, remove the applicant from death row and rehear his case on sentencing through a procedure that allowed judicial discretion. According to the learned duo, there are many other examples of the African Court’s significance. Perhaps most consequentially is the sheer number of cases in the court’s docket. This shows that the court continues to have the confidence of citizens around the continent as a ‘court of last resort’, when they cannot pursue justice through domestic channels. This is the view of the two learned experts. They said while not all of the African Court’s orders were being implemented, its mandate remained significant because of the important precedents it was establishing.
Secondly, they mentioned that every case brought before the African Court benchmarked norms of human rights and State parties’ responsibilities toward their citizens.

Disrespect

“These norms, in turn, are cited and adopted by other African Union organisations, the Pan-African Parliament, and national bodies across the continent. Tellingly, these are norms and standards that even those who disrespect them want to be seen upholding,” Nantulva, the Research Associate and Dr Adjolohoun concurred in their analyses. They said the African Court also served as a reminder that human rights ‘are an African concern and not just a Western construct’. “This dispels the argument advanced by some that Africans who advance human rights and demand higher standards from their governments are merely ‘puppets’ of Western actors,” they said.

The two experts continued to say that the framers of the African Charter foresaw scenarios where national courts would be unwilling or unable to handle cases involving the abuse of power by the executive branch. They recognised that in such cases, citizens needed an avenue to table their complaints and receive redress for wrongs committed after exhausting domestic mechanisms. The OAU, later the AU, granted the African Court the legal authority to uphold and interpret the African Charter. Established during a period of emerging democratisation on the continent, the African Court was an effort to institutionalise norms and human rights standards as the OAU was transitioning to the AU, with the aim of being a more effective and cohesive regional body and a genuine forum for regional accountability. The experts said the African Court was also intended to be an African judicial instrument which would complement international courts, like the ICC. They observed that the continent’s governments have, at times, accused the ICC of disproportionately targeting Africans. This is despite the fact that African countries led the effort to establish the ICC.

Essential

They said an avenue for legal redress has proven to be essential, given that national judiciaries in numerous contexts have either been co-opted or captured by ruling parties. As the African Court was established to enforce the African Charter, it is imperatively necessary to look at a few articles of the continental law. It is stated in Article 6 of the charter, that every individual shall have the right to liberty and to the security of his person. According to Article 6, no one may be deprived of his freedom, except for reasons and conditions previously laid down by law. In particular, the Article states that no one may be arbitrarily arrested or detained.

It is provided in Article 9, that every individual shall have the right to receive information. Subsection two of Article 9, states that every individual shall have the right to express and disseminate his opinions within the law. On the other hand, there is Article 20, which provides that all people shall have the right to existence. They shall have the unquestionable and inalienable right to self- determination. It is provided in the African Charter that they shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

It is further stated that colonised or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognised by the international community. According to the charter, all peoples shall have the right to the assistance of the States parties to the present charter in their liberation struggle against foreign domination, be it political, economic or cultural. The right to freedom of conscience is enshrined in Article 8. It is said that freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.

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