Interview with Hon. Lady Justice Stella Anukam of the African Court on Human and Peoples’ Rights
Justice Stella Anukam discusses her role on the African Court, challenges to implementing the Court’s final judgments, and limitations on the Court’s jurisdiction over pertinent human rights issues in Africa.
The current Judges of the African Court as of 2020. Justice Stella Anukam is sitting furthest to the right. Photo: African Court on Human and Peoples’ Rights.
By: Nancy Stephen, staff member
Hon. Lady Justice Stella Anukam. Photo: African Voice Journal.
Justice Stella Anukam is a sitting Judge of the African Court on Human and Peoples’ Rights (“the Court”), which is the judicial arm of the African Union, established by Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (“the Protocol”). With legal experience spanning over 32 years as a practicing lawyer, Justice Anukam has served in several governmental capacities in Nigeria before joining the Court. She previously served as the Director of International and Comparative Law at the Federal Ministry of Justice in Nigeria and her duties included supervising human rights and related matters, preparation and compliance with the State reporting obligations to Human Rights Treaty bodies such as the African Commission on Human and Peoples’ Rights (“the Banjul Commission”), and the United Nations Human Rights Council (“UNHRC”). She is also a Fellow of the Chartered Institute of Arbitrators in Nigeria, Fellow of the Institute of Chartered Secretaries and Administrators, and was previously the Director of the Freedom of Information Unit, in the Federal Ministry of Justice.
Nancy Stephen interviewed Justice Anukam to learn about the breadth of her role on the African Court and the typical kinds of human rights matters that come before the Court. In this interview, Justice Anukam and Nancy also discuss bottlenecks to the implementation of the Court’s final judgments and the various limitations placed on the Court’s jurisdiction by provisions in the African Charter on Human and Peoples’ Rights (“the Charter”) and the Protocol.
Congratulations on your third year as a Judge of the African Union Court on Human and Peoples’ Rights. What has your experience been like?
My experience has been fulfilling, an eye-opener, and it has been challenging as well.
My experience has been fulfilling in the sense that I have always worked within the Nigerian government in the field of human rights protection and promotion, but now I work as a judge overseeing the African continent. My role presents a more practical application to the work I have previously been doing because the Court is in the business of setting precedents through interpreting and applying, to the cases before us, the Charter, and other human rights instruments that State Parties have ratified. There are so many cases of human rights violations on the continent, so as a Court we complement the African Commission on Human and Peoples’ Rights in ensuring that the human rights of the citizens on the continent are protected and promoted.
My role has also been challenging due to the jurisdictional limitations to individuals’ access to the Court. Before individuals can access our Court, there is a major hurdle — there are certain things that the individual’s country needs to do. For example, for a Nigerian citizen to access the Court, Nigeria must have ratified the Charter and Protocol. Article 34(6) of the Protocol to the Charter also requires that the Nigerian government make a declaration allowing individuals and NGOs with observer status before the African Commission to have access to the Court. And that declaration, if not made, would prevent the Court from accepting cases from individuals and NGOs against Nigeria.
Nigeria is, for example, among the many African countries that are yet to make the declaration allowing individuals and NGOs to bring grievances before the Court. We have about 31 States out of 54 that have ratified the Protocol, but currently, a very slim number of them — about six — have made that declaration. There used to be ten, but four countries withdrew their declarations.
So you find out that accessing the Court is difficult for the citizens of the continent. So when you hear of violations that have occurred in different places, like police brutality, e.g., issues related to the #ENDSARS movement in Nigeria, you just wonder how far citizens can go in getting a remedy for the violation of their rights as far as the African Court is concerned.
Furthermore, even after having cleared the issue of jurisdiction, another major issue is the limitations presented through the Admissibility Check required under Article 56 of the African Charter. The Admissibility Check consists of seven cumulative requirements. As part of the Check, we want to know if the applicant has, among other things, exhausted all available local remedies in the country concerned and whether the application has been brought before our Court within a reasonable time after the exhaustion of local remedies. Furthermore, we need to ensure that the same alleged violation has not been considered by any other international human rights dispute settlement body, such as the African Commission, the Human Rights Committee, or the ECOWAS Court of Justice. Then, we also have to be sure that the language of the applicant is not abusive. So we do all these checks preliminarily, before considering the merits of the case.
Shifting focus to more recent happenings, there have been several social movements on the African continent, including those related to police brutality and crackdowns on peaceful protests (#ENDSARS in Nigeria), gender-based violence (#shutitdownNamibia), and a silent holocaust (#Congoisbleeding in Congo). Has the Court been able to address any of the concerns raised by the ongoing social movements in the continent? I know that you mentioned that Nigeria, where the #ENDSARS movement is based, has not made its declaration. Has Namibia (#ShutitdownNambiba) or Congo (#Congoisbleeding) made the declaration to enable its citizens to bring complaints?
Neither Namibia nor Congo has made the requisite declarations, thus the issues underlying the protests have not come to the Court. We have realized that most times when we deliver our judgment and the Respondent State considers our judgment not favorable to them, they tend to withdraw their declaration. The standing countries with declarations not withdrawn are Burkina Faso, Malawi, Mali, Ghana, Gambia, and Tunisia.
For cases that make it to the Court from the countries with declarations, what have been the typical cases recently brought before the Court?
The most common cases involve fair trial rights. When it comes to fair trial rights, we have recourse to Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”). This is because the African Charter does not sufficiently elaborate on the right to defense, for example, not making provision for entitlement to free legal assistance. But under the ICCPR, any person who is accused of a serious offense that attracts a long-term sentence or death penalty is automatically entitled to free legal assistance without the need for request, especially when the person is indigent. In most cases we handle, we find that State Parties do not make this free legal assistance available to accused persons throughout the case trial, in the first instance, appeal, and even up to the highest court in the country. The courts then pass long term sentences like 30 years, 35 years, and even the death penalty. So the defendants are usually undefended and they cannot defend themselves because most times they are indigent and cannot afford a lawyer. So, most times our cases are along that line. And we always find that there’s a violation on that ground. Sometimes we ask for a retrial. And sometimes we ask for compensation or reparation for the direct and indirect victims.
The next line of most common cases brought to the Court surrounds the right to freedom of expression under the Charter, especially by journalists. There are also allegations of violations of the right to participate freely in the government of one’s country, either directly or through freely choosing representatives
Recently, there have also been a number of election cases. For election cases, we have interpreted and applied continental and regional instruments such as the African Charter on Democracy, Elections and Good Governance and the ECOWAS Protocol on Democracy and Good Governance. In a lot of election cases, the sitting government wants to continue ruling regardless of electoral laws and protocols, and then comes up with a new law excluding the opposition from participating in the election process. The opposition then files an application before the court alleging the violation of their rights to participate in the government of their country. In cases of extreme gravity and urgency and where necessary to avoid irreparable harm to the Applicant, the Court adopts such provisional measures as it deems necessary for the status quo to be maintained, pending determination of the substantive application on the merits.
We also have election cases where the incumbent government deliberately makes sure that certain persons are not qualified to participate in local elections by coming up with some new requirements, not within the timeframe that is allowed by the relevant regional election Protocol. For instance, under the ECOWAS Protocol on Democracy and Good Governance, you cannot change your election law within six months of the election. So, we have had instances like that. Sometimes States also make requirements that you must belong to a political party to run in an election; meanwhile, our jurisprudence has established that individuals need not belong to a political party to run for an election. The Court has also looked at the composition of electoral bodies and has ruled in at least one case that the electoral body to supervise the conduct of elections was not balanced and could not effectively guarantee the rights of the citizens to participate in the process.
Do States usually comply with your decisions? Are there any implementation challenges? And how has the Court addressed these issues?
One of our biggest challenges as a court is the extremely low level of implementation of our decisions. Under the Protocol, the Executive Council of the African Union (“AU”) is the organ with the responsibility to ensure that our decisions are implemented. The Protocol requires that we notify the Council of our judgments and they are supposed to ensure that State Parties implement our judgments.
Right now, as we speak, the level of compliance is very poor. The Court has taken it upon herself to begin to closely monitor the implementation of its decisions. Before now, we simply rendered our judgments and informed the Executive Council of the AU. Now, we intend to be more active in this regard. So that is a recent reform mechanism in the Court. We are trying to set up a compliance monitoring unit whose responsibility will be to monitor the implementation of our decisions. The Unit will constantly interface with Respondent States to ensure they are implementing our judgments and to get to know the extent to which the States are implementing our judgments. It is important to note here that implementation challenges are common to almost all international courts.
Another technique we use for tracking implementation is the naming-and-shaming tool. So, regularly we are required to give a report to the AU on the activities of the Court, including, in particular, instances where a State has not complied with the judgments of the Court. And we do so.
I do also believe the AU is working to improve the implementation of our decisions. Recently, the AU has set up a sub-committee on Human Rights, Democracy and Good Governance at the Ambassadorial level, and we will now work directly with that committee, through our compliance unit to improve implementation.
We have also proposed a compliance monitoring framework, which will help the Council effectively monitor the implementation of our judgments, to the Executive Council. More importantly, in our new rules, we have introduced the possibility for the Court to monitor compliance with its judgments, through among other things, the organization of compliance hearings.
As we wrap up, I would like to know if you have any suggestions on the way forward in addressing the high incidence of human rights violations on the African continent?
I think that the Court itself requires more visibility. The Court is not yet so known. A lot of people, even in the legal sector, in many African countries, do not know about the existence of the Court. There is a need for NGOs to create more awareness in African countries about the presence of this Court and about citizens’ rights to access the Court. This is important because until people know that there is a court, that there is an African Court of Human and Peoples’ Rights, where they can seek redress and then remedy and compensation for violations of their rights, the Court will not fully achieve the purpose for which it has been established. So generally, there is need for more publicity and visibility. It is a major concern for us in the Court. We are also trying to engage in sensitization visits across the continent to encourage those countries that have not yet done so, to either ratify the Protocol or make the declaration or do both. For example, before Tunisia made the declaration, we paid a courtesy visit to the then President of the country. It was then he made a commitment that he will make the Article 34 Declaration. And that same day he made the declaration. As part of its publicity efforts, the Court is also now trying to organize essay writing competitions for students in university on matters related to the Court. All these steps are important because once the people begin to know about the Court, they can put pressure on their governments to make the Article 34 Declaration.
And do you expect any pushback from countries, parties to the African Charter, under dictatorship rule? Because I would expect that they would not want to sign the Article 34 Declaration under the Protocol?
There is usually a fear that the Declaration may be a threat to their rule, but the truth of the matter is that the fear should not really exist. Once a country is a signatory to the African Charter on Human and Peoples’ Rights, it means that they are ready to protect and promote human rights. So then, there is no need for them to fear making the declaration. And then, unlike the ECOWAS Court, before you can gain access to the African Court, the Admissibility Check ensures that applications coming before us are not frivolous and that the Applicant has exhausted all local remedies, among other things. Our scope of action is also checked because we are guided by the Charter. We cannot do anything outside the African Charter, the Protocol, and other human rights instruments, that State Parties are signatories to. So if you are already a party to the African Charter, then there is no need to be apprehensive of making the declaration.
Nancy Stephen is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She is currently the President of the Law in Africa Students’ Society at Columbia Law School. She graduated from Washington and Lee University in 2017 and participated in an exchange program at the University of Oxford in 2016.