The Courts of Justice of the African Regional Economic Communities
There are at present eight Regional Economic Communities (REC) recognised by the African Union (AU):
- The economic Community of West African States (ECOWAS)
- The Common Market for eastern and Southern Africa (COMeSA)
- The economic Community of Central African States (eCCAS))
- The Southern African Development Community (SADC)
- The Intergovernmental Authority on Development (IGAD)
- The Arab Maghreb Union (AMU)
- The Community of Sahel-Saharan States (CeN-SAD)
- The east African Community (eAC)
Several of these ReCs have set up tribunals for settling disputes relating to violations by a State Party of ReC Treaties and texts, mainly of an economic and monetary nature.
The jurisdiction of the tribunals in the field of Human Rights
The jurisdiction of some of the tribunals contains an explicit reference to the respect for Human Rights; in other cases the jurisdiction is implicit, in that it does not derive from the texts establishing the court, but rather from the obligation incumbent on the States Parties to respect the Human Rights specified in the REC treaties. Such implicit jurisdiction is in fact born out by the case law of certain courts.
The ECOWAS community court of Justice
Article 9(4) of the Additional Protocol (2005) gives the Court jurisdiction over cases of Human Rights violations in all Member States and enables it to receive individual applications.
Exhaustion of effective domestic remedies is not required:
The ECOWAS Court of Justice is an exception among international tribunals, in that there is no mention of a requirement that effective domestic remedies be exhausted for an application to be receivable. The Court can therefore hear a case even if domestic remedies have not been exhausted, including cases still pending before the national courts.
In its ruling in the case of Mrs. Hadijatou Mani Koraou v. Republic of Niger, handed down on October 27, 2008, the Court confirmed that Article 4(g) of the revised Treaty, which specifies that the Member States adhere to the fundamental principles of the African Charter on Human and Peoples’ Rights, reflects the Community legislator’s intent that the instrument be integrated into the law applicable in the Court’s proceedings.
Mrs. hadijatou mani Koraou v. Republic of Niger
In this case, the applicant was sold when she was 12 years old by a tribe chief to Mr. Naroua, according to the Wahiya custom. She thus became a Sadaka, i.e. a slave in the service of her master, with the duties of a house servant. Her master sexually abused her from the age of 13 onwards. In August 2005, Mr. Naroua gave Hadijatou a liberation certificate from slavery, but refused to let her leave his home, on the grounds that she remained his wife. The applicant based her action before the ECOWAS Court on the violation of the provisions of the African Charter relating to discrimination (breach of art. 2, 3 and 18(3)), slavery (art. 5), arrest and arbitrary detention (art. 6). In its ruling, the Court considered that the discrimination against the applicant could not be attributed to Niger, but to Mr. Naroua, that the arrest and the detention were pursuant to a court decision, and were therefore not arbitrary. On the other hand, the Court considered that Niger was responsible owing to its tolerance, passivity and inaction, and the absence of action on the part of the national authorities regarding the practice of slavery. It granted an all-inclusive compensation of 10 million CFA francs and ruled that the sum has to be paid to Hadijatou Mani Koraou by the Republic of Niger.
SERAP (socio-economic Rights & Accountability Project) vs. Nigeria 2
In 2012, the Court of Justice of the Economic Community of West African States (ECOWAS) ruled against Nigeria and found the government responsible for failing to regulate oil companies whose oil extraction activities have degraded the Niger Delta. 3 The Court found Nigeria to be in violation of its obligations under the Charter (article 1) and of the right to a general satisfactory environment (article 24). The Court called on Nigeria to “[t]ake all effective measures, within the shortest possible time, to ensure restoration of the environment of the Niger delta; [t]ake all measures that are necessary to prevent the occurrence of damage to the environment; [and to] take all measures to hold the perpetrators of the environmental damage accountable”. 4
Kolle vs. Guinea 5
On the night of 4 August 2012, Guinean security forces entered the village of Zoghota, in southern Guinea, and opened fire widely. Six villagers were killed, several others wounded, homes were burned and raided. Some villagers who were arrested during the attack suffered tortured by soldiers during their custody. Such arbitrary arrests and acts of torture against Zoghota residents also took place before and after the massacre.The attack was retaliation for a large-scale protest over employment practices and environmental destruction at the Zoghota iron ore mine, owned by multinational conglomerate Vale-BSG Resources (VBG). During the protests, villagers from several of the communities surrounding the mine – led by the inhabitants of Zoghota village – occupied the mine site and were accused of destroying company property.
Security forces and the company provided conflicting explanations for the massacre. Yet the killings were never investigated by Guinean authorities, nor was the mining company’s responsibility, despite clear evidence of their participation in the planning and execution of the attack. FIDH Guinean member organization Les Mêmes Droits pour Tous (MDT) filed a criminal complaint against several security forces commanders in 2013, but the case never advanced, as most of the defendants refused to answer for their actions before the judge. The file was transferred to a military court, where it languished.
In October 2018 , represented by MDT and Advocates for Community Alternatives (ACA), the people of Zoghota turned to the ECOWAS Court of Justice. In a decision on 10 November 2020, the Court found that Guinea’s security forces violated the rights to life, freedom from torture and arbitrary arrest, and the right to an effective legal remedy of the people of Zoghota. It also ordered Guinea to pay a total of 4.56 billion Guinean francs (approximately 463,000 U.S. dollars) to the victims and their families. 6
Following the judgment, community members renewed their complaint in domestic courts against the security forces and demanded an investigation into the role that VBG played in the massacre. The ECOWAS Court’s ruling also had important implications for the future of mining around Zoghota. VBG suspended its operations at Zoghota after the massacre and later lost its concession to mine iron ore amidst a corruption scandal.
Although the actions brought in the above-mentioned cases concern violations by the state or its agents, the fact remains that the use of the Charter in such situations represents real progress for the protection of Human Rights; one could well imagine such action being taken concerning violations committed by multinational corporations involving the active or passive responsibility of states towards them.
The East African Court of Justice
The Court is the judicial body of the east African Community (eAC). It has jurisdiction for the interpretation and application of the east African Community Treaty.
Article 6 (d) of the Treaty requires the States party to respect 6 fundamental principles:
- Good governance
- The Rule of Law
- Transparency and fight against impunity
- Social justice
- Gender equality and the recognition, promotion and protection of the rights guaranteed by the African Charter on Human and Peoples’ Rights.
The jurisdiction of the Court in the field of Human Rights is therefore based on the principles enshrined in the treaty. Article 27(2) however specifies that a protocol could be adopted by the Council to extend the jurisdiction of the Court, in particular in the area of Human Rights.
In 2005 a draft Protocol was drawn up by the Secretariat of the Community, providing for explicit jurisdiction in the field of Human Rights. At the time of writing, it was still under discussion.
Since 2005, the Court can receive individual applications. So far the Court’s rulings have shown a progressive attitude towards Human Rights.
Katabazi and others v. Uganda 7
The applicants, who were under trial for treason against Uganda and were held on remand, applied to the Court, accusing Uganda of having acted illegally and having disregarded the decision by the Supreme Court, which had considered that their imprisonment was arbitrary.
The Court declared that although it would “not assume jurisdiction on Human Rights disputes”, it also would “not abdicate from exercising its jurisdiction of interpretation under Article 27(1) merely because the Reference includes allegations of Human Rights violation”. 8 It is therefore possible to lodge a complaint with the Court for Human Rights violations when it can be shown that the violation concerned is also a violation of the Treaty. 9
The COMESA Court of Justice
The Court’s jurisdiction in the field of Human Rights is implicit. It could be based on one of the fundamental principles the parties to the Treaty are bound to observe, i.e.: the recognition, promotion and protection of the Human and Peoples’ Rights guaranteed by the African Charter (Article 6(e) of the Treaty).
The AMU Court of Justice
The Court bases its decisions not only on the Treaty and the other AMU documents, but also on the general principles of international law and international case law and doctrine. The mandate of the Court in the field of Human Rights is therefore implicit.
Complementarity between the Rec courts of Justice and the African court on human and Peoples’ Rights
The various ReC Courts of Justice have explicit or implicit jurisdiction for violations of rights guaranteed by the African Charter on Human and Peoples’ Rights. Such competence is complementary to that of the African Court on Human and Peoples’ Rights, which is empowered to hear all cases and disputes referred to it regarding the interpretation and application of the Charter.