Xenophobia: ECOWAS citizens seek access to African Court

Following reports that the Nigerian government plans to sue South Africa at the African Court on Human and Peoples’ Rights (African Court) over the renewed xenophobic attacks on Nigerians in South Africa, some citizens of West African countries have begun move to compel their countries to take the necessary steps to allow enhanced access to the continental court, ERIC IKHILAE writes.

Smarting from the impact of the latest wave of violent xenophobic attacks on foreigners by South Africans, a group of West African citizens have gone before the Court of the Economic Community of West African States (ECOWAS Court), seeking, among other things, to compel member states to take the necessary steps to allow citizens and non-government organisations (NGOs) access to the African Court on Human and Peoples’ Rights (African Court).

They frowned at the current state of affair where only states in the sub-region could initiate cases before the court, to the exclusion of their citizens and NGOs. The development, they argued, constituted not only a violation of the rights enshrined in the African Charter on Human and Peoples’ Rights (ACHPR) and related instruments, but a negation of motive behind the establishment of the African Court.

Listed as plaintiffs in the suit marked ECW/CCJ/APP/26/19 are 25 individuals drawn from 15 ECOWAS member states and a group-the Campaign for Social Justice and Constitutional Democracy in Africa (CSJCDA).

In court documents filed by their lawyer, Festus Ogwuche, the plaintiffs noted that while only Burkina Faso, Cote d’Ivoire, Ghana and Mali have submitted the requisite declarations pursuant to Section 36 of the Protocol establishing the court, thereby paving the way for their citizens and NGOs resident in such countries to sue before the court, other ECOWAS member states have declined to so act.

They argued that the refusal of the majority of West African states to make the requisite declaration was not only wasteful (in that they contribute resources to funding the court’s operations), it was selfish-in that by recognising the competence of the African Court and allowing access to their citizens and NGOs, decisions of the countries’ Supreme Court in relation to human rights cases, will become opened to scrutiny and review by the continental court.

The plaintiffs, led by Obinna Umeh, are contending, among others, that the failure of most countries in the sub-region to make the requisite declaration has not only dampened the enthusiasm generated among the citizens by the creation of the African Court, which they thought would complement the ECOWAS Court, it negates essence of the African Charter.

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They are, therefore, praying the court for the following reliefs, among others:

* A declaration that the act of the defendants in withholding the declaration pursuant to Article 34 (6) of the Protocol on the establishment of the African Court of Human and Peoples’ Rights, as to enable their citizens have access and seek redress in the African Court for violation of their fundamental rights, is an infringement of the fundamental rights under the African Charter.

* A declaration that, by virtue of the provisions of the African Charter, the defendants have a duty, albeit a compelling responsibility to ensure that their citizens are not restricted or curtailed in any manner, in the enforcement of their fundamental rights, but rather do all things necessary to ensure the protection and preservation of those rights set out therein, against their infringement both against their citizens and other member states of the African Union against their citizens.

* An order compelling the defendants to make the declaration subject to Article 34 (6) of the Protocol on the establishment of the African Court to meet the requirements of the Protocol 05 to enable the plaintiffs and, indeed, all of their respective citizens, have access to the African Court for the protection, preservation and enforcement of their fundamental rights.

* An order compelling the defendants to encourage and provide the necessary ennoblement for human rights litigation and enforcement against infringement and provide adequate measures that will allow their citizens unimpeded access to national and international mediums for the ventilation of their grievances and seek redress for infringements of their human rights and fundamental freedoms.

Umeh and others stated that the court’s jurisdiction, under Article 3 of the Protocol to the African Charter on Human and Peoples’ Rights on the establishment of the ACHPR, shall extend to all cases and disputes submitted to it concerning the interpretation and application of the charter, the protocol and any other human rights instrument ratified by the states concerned.

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They noted that while the Protocol, in its Article 5, provides direct access to state parties, African International Organisations and the Commission; access to the court by individuals and NGOs, whose fundamental rights are violated, is provided under Section 5 (3), but made subject to Section 34 (6) of the Protocol.

The plaintiffs stated that: “The said Article 34 (6) requires that for individuals within a particular state to institute cases in the Court for violation of their fundamental rights, their states shall make a declaration accepting the competence of the court, for the court to receive cases under Section 5 (3) of the Protocol.

“The absence of such declaration by a particular state disentitles the particular state citizens from accessing the court to enforce their fundamental rights before the court.

“The defendant states expended substantial amounts of money in contribution to the setting up of the Court, including the development of the infrastructure and facilities, but till date declined to perform the relevant protocol pursuant to the charter creating the court to allow their citizens access to the court.

“Some of the countries that are yet to make the requisite Declaration are enjoying the privileges provided by the court, and still foreclose their citizens from accessing the court and thereby depriving them of all of the known human rights and fundamental freedoms enshrined and guaranteed under the African Charter.

“A country such as Nigeria has produced a Vice-President of the Court in the person of Judge Elsie Thompson, and participates in all the activities of the court but still denies its people the gains of the court in terms of the preservation and enforcement of the rights enshrined and guaranteed under the African Charter.

“By global records, Africa holds the highest number of human rights violations and the bulk of the infringements are the direct acts of the states and their actors, of which the existence of the court would provide the veritable forum to hold such state violators to account.

“In more recent times, Africans are subjected to all manner of inhuman treatments and indignities, even by their co-Africans, in such places such as Libya, Mauritania and Algeria, among others, where thousands are held in slavery and servitude, being treated like chattels and in most inhuman conditions worse than the days of the Trans-Atlantic slavery, the African Court of Human Rights holds the only beacon of hope for the redressing of these violations.

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“Africans are subjected to all manner of inhuman and degrading treatments in the hands of their co-African natives of South Africa, at the instigation of the South African state and with state institutions looking on while their fellow Africans are being slaughtered, dehumanised and inhumanly treated, with virtually no forum citizens of the defendant countries to ventilate their grievances. This is because the defendant states decline from performing the necessary and requisite functions to allow their citizens access to the African Court of Human Rights.

“The refusal of the Defendant countries from making the necessary Declarations that would give their citizens access to the said court diminishes their enjoyment of the rights provided under the African Charter and it is a violation of their fundamental right.

“By the status of the African Charter as the foremost human rights instrument within the continent, the act of constricting or limiting its scope, application and enforcement mechanism through the refusal of the Defendants to make the requisite Declarations in satisfaction of the Protocol establishment, is a direct infringement on the fundamental rights of the Plaintiff’s.

“The Defendants having been convinced firmly that the attainment of the objectives of the African Charter requires the establishment of an African Court on Human and Peoples’ Rights as they so declared and affirmed in the Protocol to the establishment of the court, cannot refuse their citizens access to the said court, as such refusal is tantamount to a denial of their rights to the enjoyment of those rights and a violation of the said rights. ”

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