Tanzania deals blow to Africa's rights court

Tanzania's government is planning to stop individuals and groups of people directly filing complaints against it at the African Court on Human and Peoples' Rights (ACHPR), according to Amnesty International.

The East African country's government has the highest number of cases brought by individuals and NGOs as well as judgments issued against it by the human rights court, according to Amnesty.

"Out of the 70 decisions issued by the court by September 2019, 28 decisions, or 40 percent, were on Tanzania," Amnesty said in a press statement released on Monday.

What is the African Court on Human and Peoples' Rights?

It's the principle human rights court in Africa, with a seat in Arusha, Tanzania. Established by the African Union in 1998 to ensure the protection of human rights on the continent, the African court was ratified in 2004, with the first judges appointed in 2006.

The court can judge on whether a state has violated human rights outlined in the the African Charter on Human and Peoples' Rights, which covers everything from the right to education, to the right to freedom of movement or participation in government. The court can also investigate violations of other human rights instruments.

Basically, the court has broad powers to hear a vast array of human rights violations, as long as the particular country has signed the treaty or convention that it is deemed to have contravened.

The court isn't accepted all over Africa: it can only rule on violations in the 30 of the AU's 55 member states that have ratified its founding protocol.

Cases it's made decisions on include a 2018 ruling that Mali's child marriage laws contravene international human rights standards, and ordering Rwanda to pay monetary compensation to a political prisoner for violating the woman's rights.

How do the human rights violations come to the attention of the African Court?

Theoretically, there are three ways. 

Firstly, nations who have signed the protocol can bring cases – or example, if Mozambique thought Zambia was violating the rights of some of it citizens, it could file a complaint against the country with the human rights court.

"But practice has shown that the states are loathe to bring cases against each other," said Michael Nyarko, head of the Litigation and Advocacy Unit at the University of Pretoria's Center for Human Rights Law in South Africa, pointing out that no state has yet to bring a case since the Arusha court was founded. 

Secondly, the African Commission and African intergovernmental organizations can also petition the ACHPR to examine a case. To date though, they have only brought three cases, "so that isn't really working," commented Nyarko in an telephone interview with DW from Pretoria. 

The third possibility is for individuals, and NGOs representing individuals, to directly file complaints with the human rights court.

This makes up the vast majority of cases the court looks at — from the 238 applications it received to September 2019, 223 were from individuals and 12 from NGOs.

How can Tanzania take away people's ability to file cases?

People can only file cases if they are citizens of a country that has signed an optional declaration agreeing to this. Only nine African countries have currently signed this optional declaration, one of them which is Tanzania. 

In 2016, Rwanda withdrew from this option, saying the move was necessary to stop those who took part in country's 1994 genocide gaining access to the court and using it as a platform.

Now, Tanzania has also sent a notification to the African Union that it wants to cut this option – leaving only people in seven of the AU's 55 member states with the option of filing a human rights complaint.

Amnesty International's Africa Advocacy Coordinator Japhet Biegon criticized the move as undermining the court's authority and legitimacy, calling it "an outright betrayal of efforts in Africa to establish strong and credible regional human rights bodies that can deliver justice and accountability."

African human rights law expert Nyarko agrees that the move is a blow to the court.

"Having individual access is perhaps the most important part of the court's processes because if individuals whose rights are violated can't actually go to the court, then it reduces the court's effectiveness," he said.

"It's really quite strange [that Tanzania is withdrawing] because if one state has the moral duty to actually allow access to individuals. Tanzania is that state; they are the ones that host the court and if they are supposed to lead by example."

Weren't there moves to turn it into an African version of the International Criminal Court, the ICC?

Sort of. In 2004, African leaders agreed to merge the African Court of Human and People's Rights with the African Court of Justice (which isn't yet operational).

In 2014, they decided to extended the mandate of this proposed new court to allow it to prosecute 14 international crimes, including the international crimes of genocide, war crimes, crimes against humanity and the crime of aggression

In theory, this would allow an African court to try both those involved in crimes such as large-scale drug traffickers or multinationals responsible for environmental pollution as well as war criminals and those suspected of human rights abuses.

However, no single state has ratified the agreement yet and "there's really not much willingness on behalf of the states themselves, said Michael Nyarko. 

Read more: Does Africa has an alternative to the ICC?

Despite the lack of progress, the idea of an expanded, or merged, African Human Rights Court is often seen as a positive development that could ensure Africans play an active role in prosecuting justice, instead of being at the receiving end of ICC decisions. 

"More importantly, it would tell victims in Africa that leaders take their justice needs seriously," writes Maram Mahdi in a recent article for the Institute for Security Studies, an African research organization.

But with Tanzania cutting off options for human rights victims to seek redress, it seems the continent still has a long way to go.