Tough choices for the African Human Rights Court

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Recently in Kampala, Uganda

THE major highlight of the recently held 4th Africa Judicial Dialogue in Munyonyo, Uganda, was President Yoweri Kaguta Museveni’s counsel that, for the African Court on Human Rights and People’s Rights to thrive, it must strike a balance between African culture, traditional justice and modern law.

This was especially so after the entrance of Western powers in the mix through the signing of an MoU between the EU and the US.

The African Judicial Dialogue, ran under the theme ‘Tackling Contemporary Human Rights Issues: The Role of the Judiciary in Africa’,

As various departments from the AU gathered last week at the Speke Resort Conference, to discuss challenges afflicting the continent, particularly human rights, the usual suspects, the EU and US, were also present, seeking to influence discussions and enveigle themselves into African programmes and policies.

There they were, all over the place, sniffing for that opportunity which was, however, stifled by President Museveni’s timely intervention.

He could not have made it any clearer when he said African people’s rights and cultures had to be respected when the African Court delivers on its mandate.

There, too, was the usual but poignant reminder that issues such as homosexuality must be dealt with decisively since their sponsors are known and are always on the prowl.

And President Museveni’s message was clear and simple:  African judges must not only trace the root causes of human rights violations which include, among others, lack of access to education, water and sanitation, quality healthcare, but also respect African traditional justice.

“There are fundamental human rights such as the right of access to food, shelter, clean water, clothing, education and health. These cannot be addressed legally but rather by developing the economy to enable the state to support her citizens,” he said.

“Man has not only been abused by fellow man. He has also been abused by nature such as floods, drought, diseases, famine and earthquakes, among others. These can only be addressed by development solutions and not by legislations.

“The legal system in Africa is merely transplanted from the West and needs to be harmonised. Some people are, for example, against the death penalty but for me, I am for the laws of Moses of an eye for an eye, a tooth for a tooth. Laws should be aligned to society otherwise some laws may end up being an injustice to the population,” he noted.

“Some of our cultures have been outlawed but people have ignored the laws and continued to practice their cultures because they see no harm in them. So, the existences and practices continue; which shows that those who designed the laws never did enough consultation to put people’s cultures and norms into consideration because not all African practices are bad,”

Herein lies one of the many problems confronting The Court.

In the first instance is the pervasive question: How does it strike a balance between contemporary law and the African living law?

Who defines those laws and to what end?

The second question is: Why is it that the so-called human rights seem to be encompassing only political and social issues?

Who is putting emphasis on the political aspects of human rights and why?

Who then bridges the social rights gap?

For instance, in Zimbabwe, the opposition MDC Alliance controls over 90 percent of local authorities, most of which are failing, and have failed dismally, on the service delivery front but their Western sponsors barely raise a whiff on that blatant and flagrant violation of human rights by their stooges.

In the same vein, the sponsors of the illegal economic sanctions on Zimbabwe have desperately failed to fend off well-founded accusations that their sanctions are killing the masses in the country.

How does The Court respond to that chilling reality?

Confronted with such a complex situation, who then defines what human rights are and in whose context and where does the African living law come into effect?

Does anyone take into consideration the African traditional dimension?

Those are the questions that today confront The Court and answers are certainly not in inviting outsiders to be part of the same. 

The Court was established by member-states of the AU under Article 1 of the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court of Human and People’s Rights (The Protocol).

The Protocol was adopted on June 9 1998 in Burkina Faso and came into force on January 25 2004, with The Court officially commencing its operations in November 2006.

Thirty out of 55 member-states of the AU have ratified The Protocol since 1998.

Officials of The Court were in Zimbabwe in August where they met with President Emmerson Mnangagwa who assured the delegation that he would ratify the Protocol.

But while President Museveni was talking about non-interference, The Court seemed to have allowed itself to be infiltrated by the West, particularly the EU and the US which signed what they said was an MoU with the Africans.

It is this entrance into the fray by Western nations that has all but extinguished any hope of a fair Court, especially from an African point of view.

For Zimbabwe, the entrance of the West is likely to result in the country not ratifying The Protocol, given its on-going fight with the West.

The non-conformist Ambassador has literary thrown away diplomatic etiquette by behaving like a member of the opposition MDC Alliance.

In the same vein, EU Ambassador to Zimbabwe Timo Olkkonen has also been in tow, frantically trying to accost the ruling Party ZANU PF to go into bed with the MDC Alliance under what they call ‘inclusive’ dialogue’.

This is notwithstanding the fact that there is already an ongoing initiative under the banner of Political Actors Dialogue (POLAD).

When all is said and done, the Court faces tough choices as it seeks to execute it mandate and one hopes it will not be turned into another political farce.

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