Tunisia’s declaration for direct access to the African Court is an important step for dual African Union and Arab League nations

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Monday, June 5, 2017 - 09:04

By Haydee Dijkstal

In April this year, Tunisia signed a declaration to the African Court on Human and Peoples’ Rights which granted individuals and non-governmental organisations the right to access the Court directly with human rights complaints. The move came after a delegation from the African Court travelled to both Tunisia and Egypt in order to promote broader support for its work by allowing direct access. Days later, Tunisia’s Minister for Foreign Affairs signed the declaration on behalf of the Tunisian Government, and President Beji Caid Essebsi praised the work of the African Court and encouraged participation by Tunisia’s neighbouring African states.

The provision which Tunisia adopted is Article 34(6) of the African Court’s Protocol to the African Charter, which states that a State Party of the African Charter will specifically allow non-governmental organisations and individuals to access the Court directly in order to initiate a case against the state party. The way in which different groups — such as individuals, NGOs, State Parties, intergovernmental organisations as well as the African Commission — approach the Court to make complaints about violations of the rights guaranteed in the African Charter remains, as a starting point, that only State Parties to the African Charter, the African Commission on Human and Peoples’ Rights, and African Intergovernmental Organisations have the ability to initiate a case directly with the Court.

Individuals and NGOs – groups that are often most affected or are themselves the victims of human rights violations — can only access the Court by first travelling through the procedures before the Africa Commission and have the commission decide to refer the matter to the African Court. However, if a State Party wishes to broaden this default position to allow individuals and NGOs to access the Court directly with claims of abuses within its borders, then it must accept Article 34(6) proactively through a declaration.

An individual’s or NGO’s indirect route to the Court by way of the African Commission is a lengthy process which can result in proceedings lasting several years before a case even has the possibility of reaching the African Court. This process mirrors that of the state route to the Court; a complaint is filed, the respondent state is given time to reply, and both parties progressively make submissions on the admissibility of the complaint, then merits of the complaint, and the Commission issues a judgment with possible recommendations.

With State Parties being granted up to ninety days for each response to the communication, to admissibility and then to the merits – and extensions to this time limit if seen fit – even the most urgent of cases can take years (such as the case of two Nigerian individuals sentenced to death in 1991 after torture-induced confessions which was not fully addressed until 1995, or the case of Saif Al-Islam Gaddafi’s incommunicado detention which was only referred to the Court after seven months of seeking Libya’s participation in the proceedings). Even if an individual is successful in getting the Commission to refer its case to the Court, the latter then addresses the case almost as if it were from scratch, adding months, if not years, to the process with the Commission assuming the role of Complainant, meaning the victim, NGO and its lawyers have no standing to make direct pleadings to the Court and their access is never truly direct.

Although removing the buffer between individual complainants and the Court might be viewed by States as a risk of opening the floodgates to countless complaints and a hindrance to a Government’s actions on such efforts as combating terrorism, the Court’s admissibility considerations require all claimants to have exhausted all remedies domestically first, and guard against frivolous claims. Instead, direct access to the Court provides a forum of last resort for those harmed by human rights abuses to be recognised for the harm suffered, to hold those responsible to account and to petition the Court for compensation and reparations while providing an important check on the Government to ensure that its actions comport with the rights and guarantees set out in the African Charter, and which the State has agreed to uphold.

With Tunisia’s declaration, there are now eight nations which have accepted direct access to the Court by individuals and NGOs: Benin, Burkina Faso, Cote d’Ivoire, Ghana, Malawi, Mali and Tanzania are the others. Tunisia’s declaration brings the number back to eight signatories after Rwanda withdrew its declaration in March 2016 and drew condemnation from civil society groups which stated that its decision “substantially undermines region-wide efforts to strengthen African human rights institutions” … “when African states are demanding “African solutions to African problems.”

Tunisia has embraced a process where individuals may claim recognition for abuses and protection of human rights at a time when the country has been both praised and criticised for its human rights record. While commended for efforts to reform areas of human rights, rule of law and transitional justice, it has also been criticised as recently as February of this year in an Amnesty International report which highlighted Tunisia’s human rights record in the context of fighting terrorism; there have been accounts of torture, arbitrary arrests and detentions and restrictions on travel by security forces. The same month, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism warned that Tunisia’s fight against terrorism must be “grounded in human rights to serve as a model for the region and beyond.”

Tunisia’s declaration marks an important step forward for a group of states which, although benefiting from membership of both the African Union and Arab League, have provided very limited access for individuals and NGOs to either the African human rights system or Arab human rights system. Even with their dual status as members of both the union and league, the benefits of membership of both human rights systems for Algeria, Egypt, Libya, Mauritania, Somalia, Sudan, Tunisia, the Union of the Comoros and Djibouti have been left largely unavailable and unrealised.

Although the Arab human rights system showed potential and garnered excitement over the possibility of establishing an Arab Court on Human Rights, a final draft of the Court’s Statute approved by the Arab League in September 2014 was criticised as deeply flawed, lacking independence and a barrier to accountability on account of amendments to the Statute which removed the right of individuals and NGOs to access the court in favour of only allowing member states to initiate complaints before the proposed Court. The movement towards establishing the Arab Court has since stalled leaving no mechanism yet available to address human rights abuses under the Arab system.

In the African human rights system, all nine of the dual membership nations have signed the Protocol to the African Charter on the establishment of the African Court, but only five have also ratified the Protocol (Algeria, Libya, Mauritania, Tunisia and the Comoros), and before Tunisia signed its declaration for direct access, no nation had allowed individuals or NGOs to access the Court directly. Despite cross membership between both the African Union and the Arab League, individuals and NGOs in all nine nations have no equivalent remedy before the Arab human rights system and have no access to the African Court (save for Tunisia) without requesting the African Commission take a complaint on their behalf.

While the visit of the African Court’s delegation ended with Tunisia’s declaration, its visit to Egypt (where transitions between Governments have been marked by human rights violations and victims of mass and possibly imminent death sentences are left with the African Commission’s process as their only remedy) produced only statements of appreciation for the work of the Court.

The delegation’s visit failed to result in either a commitment to ratifying the Protocol to the African Charter on the establishment of the Court or a declaration on direct access. The African Court has regularly planned delegations promoting broader support for itself and held sensitisation seminars to encourage awareness of its work among possible future complainants, but achieving wider acceptance of the Protocol and Article 34(6) in both those countries with dual African Union and Arab League membership, and more generally throughout State Parties to the African Union, is an uphill struggle.

With no indication for a viable Arab Court on Human Rights in the near future, the eight other countries with dual membership – in addition to all other African Union countries which have not yet allowed direct access to the Court – should take steps for greater participation and support of the African human rights system as an outlet for citizens to settle human rights disputes and for the promotion of Government policies grounded in human rights principles.

Haydee Dijkstal is a US attorney practicing international criminal law and human rights law before international criminal tribunals, regional human rights courts and domestic courts including the International Criminal Court, International Tribunal for the Former Yugoslavia, Special Court for Sierra Leone and the African Commission and African Court on Human and Peoples’ Rights.

This article was originally published by the Middle East Monitor. It is republished here with permission.    

Photo: Yassine Gaidi/Anadolu Agency

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