How member states routinely ignore African court rulings

Over 200 decisions have been adopted by the court since it was created, operationalised and relocated to Arusha from Addis Ababa in 2007.

“There is thus a legitimate concern from the public that the effective discharge of the court’s mandate has been hindered,” said the President of the court Lady Justice Imani Aboud.

She made the remarks here in her speech during the recent opening of the 2024 Judicial Year of the Arusha-based African Court, whose protocol was signed in 1998.

Failure by state parties to implement the court decisions is among the challenges facing the organ, which was set up to handle cases pertaining to human rights violations in Africa.

Other challenges AfCHPR is grappling with failures by 21 of the 55 AU member countries to ratify the Protocol that established the legal facility.

“We start 2024 with pretty much the same challenges we faced in 2023,” Lady Justice Aboudm, the former Judge of the High Court of Tanzania, said.

“Over 25 years after the adoption of the Protocol establishing the court, only 34 of the 55 member states of the AU have ratified the Protocol,” she went on.

Of the 34 AU member countries that have ratified the Protocol, only eight have deposited the Declaration under Article 34(5) of the Protocol in question.

Lady Justice Aboud explained that the poor implementation of the Court decisions was a sign that the AfCHPR mandate was being openly undermined.

Notwithstanding this, the African court holds the view that the role of member states in the protection of human rights cannot be underestimated.

The court, she insisted, recognises that its mandate is to complement the work of the partner states “to promote and protect human and people’s rights.”

“The court is not and cannot replace the domestic institutions charged with this exercise,” she said, noting that AfCHPR will continue to engage key stakeholders on the issue.

The stakeholders to be engaged include the AU organs, both individually and within the framework of the African Governance Architecture (AGA) platform, law societies, and national human rights institutions.

Low implementation of the court decisions has haunted AfCHPR for years, a situation partly attributed to non-reporting by respondent states of the measures to implement the judgements.

As of August 2021, three-quarters of the judgements by the court were not implemented. In 2020, the level of compliance with the court’s rulings stood at seven percent, while 18 percent had partial compliance.

The drawback, according to court officials, has been compounded by the limited accessibility of the court’s rulings by relevant stakeholders.

These include parliamentarians, judicial and national human rights institutions, and civil society organisations (CSOs).

“These groups could hold governments to account for implementing the Court’s judgements,” said a report presented to the lawyers.

Lack of technical and financial capacity by the states to expeditiously implement the decisions has been cited as one of the reasons. 

This manifests in the failure of governments to mobilise the required funds and commit staff to deal with the implementation.

However, it emerged that a lack of political will by the concerned states was likely to be the major factor behind the non-implementation of the court decisions.