By Waziri Isa Adam
Arusha, Tanzania – Nigeria’s distinguished law scholar, Professor Muhammad Tawfiq Ladan, human rights expert in Africa, and Hubert Humphrey Fellow, USA, has called for enhanced collaboration among African human rights courts to strengthen the continent’s human rights protection system.
Speaking at the 2nd Tripartite Judicial Dialogue between the African Human Rights Courts, the ECOWAS Court of Justice, and the East African Court of Justice, Professor Ladan emphasized the need for a unified approach to addressing emerging human rights challenges in Africa.
He indicated that the time for fragmented efforts is over, urging African human rights courts, in his lead paper presentation, to work together to promote justice, accountability, and human dignity.
Professor Ladan who spoke yesterday in the two-day ongoing judicial dialogue in Arusha, Tanzania, highlighted the relevance and importance of judicial cooperation between the Continental and regional human rights judicial bodies in the broader framework of African human rights system.
Professor Ladan, the immediate past Director-General of the Nigerian Institute of Advanced Legal Studies (NIALS) who spoke on, “Context Setting and Introduction of Dialogue Objectives”, shared his expertise on human rights and governance in Africa, International human rights law and conflict resolution”.
His presentation which gave more insights on the objectives, themes and topics of the event, highlighted the importance of capacity, judicial cooperation, and harmonization of human rights standards across African courts.
Full Text of Prof Ladan’s Paper on “Context Setting and Introduction of Dialogue Objectives:”
OBJECTIVE OF THE PRESENTATION
The primary objective of this presentation is to provide an overview of the historical and current context of the Tripartite Judicial Dialogue, the objectives and expected outcomes of the 2nd Judicial Dialogue, thereby setting the stage for the discussions to follow. Key themes and topics will be introduced, highlighting their relevance and importance in the broader framework of African human rights and judicial cooperation.
Highlighting the Relevance and Importance of Judicial Cooperation Between the Continental and Regional Human Rights Judicial Bodies in the Broader Framework of African Human Rights System.
The relevance of the tripartite cooperation lies in the following facts: –
First, it is opportune, and even imperative, to strengthen institutional and Jurisprudential dialogue, and to increase the level of cooperation and institutional ties in order to enhance the protection of the human rights of those under the jurisdiction of the three courts.
Second, it affords an opportunity for judges and legal officers in the three courts to dialogue on the pertinent issues that unite them: – the difficulties and challenges they face in the protection of human rights and the impact of their contributions to the development of human rights jurisprudence on the victims of human rights violations and institutions of governance in Africa.
The importance of the judicial dialogue lies in the fact that the interaction between the courts goes beyond the working meetings, staff exchange, joint communiques, declarations or publications on trends of case law, to the acknowledgement of benefits derivable from the use of, or reference to, the persuasive reasoning of fellow judges from partner judicial bodies on the effective protection of human rights in Africa.
1.2. Addressing the Right to Education in Africa as a Pre-Requisite for Social and Human Development:
This first theme of the second judicial dialogue resonates with the African Union theme for 2024, which focuses on building resilient education systems for increased access to inclusive, lifelong, quality and relevant learning in Africa for the 21st Century.
Education possesses great power in addressing and preventing the most significant challenges, including climate change, persistent inequalities, conflict and more. Education is therefore regarded as one of the fundamental rights without which the enjoyment of other rights may be compromised.
Although the African Human Rights Court has no jurisprudence on the right to education, it is mandated to safeguard fundamental rights and has a premier role in contributing towards the achievement of SDG 2 under the Agenda 2063 of the Africa We Want.
Justiciability of the right to education will guarantee access to education for all, as courts hold states accountable in their commitment to international, regional and national human rights obligations.
The judiciary and in particular, the legal profession in Africa has a crucial role to play in advancing more access to education by campaigning against discrimination and barriers to schooling. This can be achieved by defining and interpreting what the right to education entails, and helping states to solidify the obligations.
In a historic ruling, the ECOWAS Court of Justice ruled that all Nigerians are entitled to education as a basic human right. The court found Nigeria in breach of Article 17 of the African Charter on Human and Peoples Rights. This was the first time an international court has recognized citizen’s legal right to education and it sends a clear message to ECOWAS member states, and indeed all African governments, that the denial of this basic human right to millions of Africans will not be tolerated.
Statistically, of all the regions, Sub-Saharan Africa has the highest rates of education exclusion. Over one-fifth of children between the ages of about 6 and 11 are out of school, followed by one-third of youth between the ages of about 12 and 14. Almost 60% of youth between the ages of about 15 and 17 are not in school. Girls’ education is a major priority. Across the African regions about 9 million girls, between the ages of 6 and 11 will never go to school at all, compared to 6 million boys. Their disadvantage starts early:- 23% of girls are out of primary school compared to 19% of boys. By the time they become adolescents, the exclusion rate for girls is 36% compared to 32% for boys. Poverty remains one of the key factors that hinders access to equality education. Without urgent action, the situation will likely get worse as the region faces a rising demand for education due to a still-growing school age population.
This theme of the 2nd judicial dialogue is consistent with the dedication of 2024 as the Year of African Union (AU) having drawn attention to the continent’s primary developmental need:- to increase access to quality education for its children. Demonstrable progress has been made towards this end in the 21st century, but there is much work yet to be done.
Africa needs and educated population for economic growth and sustainability, political stability and to create a brain trust to compete globally. Aside from the millions of uneducated children, several millions of children who are in schools are not receiving adequate education as they, along with their underpaid teachers, struggle with deteriorating buildings and inadequate basic services and learning tools. Poorer children are hardest hit, because while African governments now underwrite school tuition fees, they define free education as tuition free education. Books, uniforms, transportation and many other necessities required by students are largely paid by families. Poor families face the greatest challenges in providing these necessities.
1.3. Addressing the Right to a Safe, Clean and Healthy Environment: Human Rights and the Environment:
This second theme of the 2nd Judicial dialogue rightly underscores the normative entrepreneurship of the African human rights system as the first Regional Human Rights treaty to provide for a legally binding and enforceable right to a healthy environment under Article 24 of the 1981 African Charter on Human and People’s Rights (African Charter). Hence worthy of emphasizing the normative relevance of this Article 24 Jurisprudence and its enduring power and influence on the resulting global dialogue, which imbued the environment with the benefit of the language of human rights.
This right was integral to African’s regional (and global) efforts to redress colonial injustices and a corollary to the struggles of its peoples and leaders for resource sovereignty. It is important to acknowledge that the binding character of this right emerged from the communication values, rights and obligations that are embedded in African legal philosophy. The African Charter and its implementation focuses attention on the African legal and philosophical origins of environmental sustainability. African environmental ethics, defined variously across Africa, share common characteristics that emphasize harmony between the human and non-human world, a view that has been incorporated in the African Charter. This viewpoint accords with the position adopted by African Political leaders and scholars alike that Africa’s regional human rights treaty, the African Charter, offers a distinctive African identity while still connected to other parts of the world by the human rights axis. In this sense, environmental protection as a legally binding right in the African Human Rights system reflects the African communitarian values and relationality (harmony between human and non-human world) that continually shape Africa’s engagement within the wider international system. This right, under Article 24 of the African Charter, invokes the potential for ensuring accountability for violation of the right to a satisfactory, healthy and sustainable environment through prosecution at the African regional level.
The history of the marking of this (environmental) human right in Africa is at least forty three years old. Its global presence are observed in the monumental changes that have ensured since at regional levels, including a recent inclusion of human rights leaning language in climate change law, beginning with the adoption of the 2015 Paris Agreement on Climate change. It is worth noting Africa’s leading role in mainstreaming environmental rights into international law Jurisprudence through its courts and other adjudicative tribunals. Despite these significant accomplishments in the evolution of the jurisprudence on the right to environmental protection since its first incorporation in the African Charter, the recognition by the UN Human Rights Council and the UN General Assembly in their respective resolutions adopted on 8 October 2021 and 28 July 2022 respectively, was celebrated as a “new or novel idea” and a major breakthrough in international law. What then seems to be left to do, for international lawyers, is the translation of this right into a binding and enforceable international legal obligations. It was expected that the UN would have credited this normative development to the African Charter and Africa’s role in blazing the trail and the African experience influencing notable developments in international law, including advances in the inter-American and European Human Rights Systems.
Financing of International Courts: – Independence and Sources of Funding
Funding of international Courts through member states’ significant contributions ensures stability in the ability of the court to function and to carry out its mandate. There is no doubt that the International Court of Justice (ICJ) has had limited Judicial work compared to regional courts of a similar nature. It is generally funded within the UN System and thus through the regular general member states’ assessment or assessed contributions.
The African Union (UN) reform agenda provides an unmatched opportunity for the Union to really address how its institutions are funded.
To ensure adequate financial accountability and to match the needs of those institutions with essential resources, particularly as it affects its Judicial arm, the AU must take a needed proactive step. The 2016 Kigali decision by the AU to impose 0.2% import levy on eligible imports into the continent as a way for member states to support the financing of AU institutions rather than from members states’ treasury, has the potential of making the AU financially sustainable. Between 2016 and 2023, about 76% of the budget of the African Human Rights Court is from assessed contributions of member states of the AU, while about 24% of the budget came from international partners.
In June 2023, the East African Community (EAC) tabled USD 103, 842,880 budget estimates before the East African Legislative Assembly for passage. The East African Court of Justice (EACJ) was allocated USD 4.45 million based on an increased number of matters filed before it, as a result of its enhanced visibility and the rising confidence among East Africans in its operations. In the 2024 / 25 East African Community budget, 66.3 million USD were allocated funds to its organs and institutions. The regional court was allocated USD 4.85 million out of 66.3 million USD.
At its 16th Budget Retreat session in June 2024, the President of the ECOWAS Community Court of Justice (ECCJ) underscored the essential role that budgetary allocations play in the functioning of the Court, as its mainstay, and cautioned against overburdening the Community’s declining resources. That 80% of the ECCJ’s budget is dedicated to high administrative and operational Costs, thereby leaving limited funds for planned activities.
1.4.1 Independence and Funding Regime: – Regional Courts in Africa
A recent study revealed the following findings (Virginia Journal of Int. Law (2017) Vol. 56:3,P. 562)
Despite receiving about 84.4 to 96% of its budgetary allocation (2011 and 2015) from the ECOWAS Member States, it has asserted its independence by delivering judgments against Member States, thereby solidifying its legitimacy and relevance as the true guarantor of human rights in ECOWAS.
It is referred by Scholars and Commentators on African Human Rights Court system as the truly independent sub-regional Court with the least dependence record on external donors like EU, USAID etc.
Compared to ECCJ’s counterpart in SADC, EAC and even the ACHPR with most rulings/judgments on “admissibility/exhaustion of local remedies” for example, the SADC is reliant on outside sources for funding: between 2005 and 2012, over 55% of its budget came from foreign donors, an amount totaling approximately $217 million. The United Kingdom, Sweden, Norway, Denmark, Finland, Belgium, Canada, France, Germany, Japan, and the United States are major bilateral donors, while the European Commission, the World Bank, the African Development Bank, the UNDP, and other UN agencies also provide support and financial assistance. Since the SADCT is funded by the SADC, it likely also relies on foreign donors to operate.
The EAC is perhaps the most reliant on outside donors of the African sub-regional organizations. Figure 9 provides data on the EAC budget from 2012 through 2015, the years for which data is available. As Table DD shows foreign donors account for 65% of funding.
According to the EAC, outside donors include the World Bank, European Union, European Investment Bank, African Development Bank, United Nations Economic Commission for Africa, and the German, Danish, Norwegian, Austrian, Swedish, and British domestic development agencies. The EAC has also entered into memoranda of understanding with France, Indian, Finland, and Canada, among others, for additional financial assistance.
Finally, ECOWAS is the sub-regional organization least reliant on foreign funding, although the data is spotty and consistent. For example, in 2011, approximately 84.4% of the ECOWAS budget was financed through the organization’s own resources, including a community levy and arrears of contributions, with a wide range of external development partners providing the remaining 15.6. Similarly, in 2015, the ECOWAS general budget was approximately $235 million, of which $13.5 million was specifically allocated to the ECOWAS Court, Some $10.2 million of the ECOWAS Court allocation – around 76% – came from the ECOWAS community levy on member states and another $2.7 million (21%) came from the ECOWAS reserve fund, meaning that approximately 96% of the ECOWAS Court budget Comes from ECOWAS member states. Based on the funding model alone, the ECOWAS Court is the most independent of the adjudicatory bodies in the African court system. (See Abebe, D, 2017: Does International Human Rights Law in African Courts make a Difference? Virginia, JIL, supra).
Overview of the Historical and Current Context of the Tripartite Judicial Dialogue:
Judicial dialogue is crucial for continental and regional Courts with direct and indirect human rights mandates. Such dialogue enhances the effective enjoyment of fundamental rights and freedoms across Africa. Continental and regional judicial bodies play a significant role in domesticating regional human rights standards through adjudication and the development of judicial norms. Dissemination of jurisprudence, methods of interpretation, and best practices at these levels contributes to a coherent and less fragmented interpretation and implementation of international human rights standards, thereby promoting more effective enjoyment of these standards by individuals within their jurisdictions.
To formalize and enhance judicial dialogue at the continental level, establishing a framework of collaboration and active cooperation has been imperative. In October 2010, the African Court organized a colloquium of African Human Rights Courts and similar institutions to initiate such dialogue.
Following the first visit of a delegation from the CCJ to Arusha from 25 February to 3 March 2018, a Memorandum of Understanding was signed on 1 March 2018 between the African Court and the CCJ. This visit led to the inaugural judicial dialogue between the two Courts in Abuja from 29 April to 3 May 2019. In 2020, the African Court similarly signed a Memorandum with the EACJ.
These Memoranda of Understanding aim to promote cooperation between regional and continental Courts, expanding the application and interpretation of international human rights standards. They facilitate the exchange of best practices and experiences, including on case management and jurisprudence.
Under these agreements, the three Courts have committed to holding regular consultative forums to discuss common challenges and strengthen cooperation.
The First Tripartite Judicial Dialogue Between Continental and Regional Courts in Africa, focusing on strengthening cooperation among African continental and regional courts, was convened from June 27-29, 2022, in Zanzibar, Tanzania. One of the resolutions was a recommendation to hold this dialogue biennially.
In continuation of these efforts, the second Tripartite Dialogue between the African Court, the CCJ, and the EACJ, is organized to further deepen the collaboration and active cooperation among these judicial bodies.
The brief profile of each of the cooperating Judicial bodies in Africa is as follows: –
The African Court on Human and Peoples’ Rights (hereinafter referred to as the “African Court” or “AfCHPR”) is established under 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 was adopted in 1998 and entered into force on 25 January 2004. The Court became operational in 2006 with the appointment of its first Judges. Under the Protocol, the Court is endowed with two types of jurisdictions – contentious and advisory. Under its contentious jurisdiction, the Court can hear all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples’ Rights (hereinafter referred to as the “Charter”), the Protocol, and any other relevant instrument relating to human rights ratified by the States concerned. Under its advisory jurisdiction, the Court may provide an opinion on any legal matter relating to the Charter or any relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.
The Community Court of Justice, ECOWAS (hereinafter referred to as the “CCJ”) is established under Article 15 of the ECOWAS Revised Treaty of July 1993. Protocol A/P.1/7/91 of 6 July 1991 sets out its composition, competence, powers and other related matters. The CCJ hears disputes relating to the interpretation and application of ECOWAS community law and, since the adoption of Supplementary Protocol A/SP.1/01/05 of 19 January 2005, admits, among others, cases of human rights violations in ECOWAS Member States. It interprets and applies the Charter as a reference instrument, as well as other international instruments relating to human rights ratified by or acceded to by the Member States concerned. It also issues advisory opinions on questions of the Treaty, Protocols, Supplementary Acts, Regulations, Directives, etc, submitted by either the Authority, Council, Member States or the Community Institutions.
The East African Court of Justice (hereinafter referred to as the “EACJ”) is established under Articles 9 and 23 of the Treaty for the Establishment of the East African Community. It is the judicial organ of the East African Community. The Court does not have express jurisdiction over human rights matters but has entertained human rights cases under Articles 6(d) and 7(2) of the Treaty.
The co-existence of these three Courts, together with international human rights mechanisms, although they share similar competence, can be both a source of divergence in the application and interpretation of the texts and/or a source of enrichment if there are one or more informal or formal exchange mechanisms.
Objectives, Key Themes and Topics of the 2nd Judicial Dialogue:
The objectives of this 2nd Judicial Dialogue are: –
1. To provide opportunities for Knowledge sharing between African Continental and Regional Courts with a human rights mandate.
2. To provide an avenue for exchange of judicial issues faced by the three Courts such as common challenges faced in the protection of human rights as well as best practices.
3. To contribute to the exploration of potential institutional developments that could enhance their cooperation and facilitate their interaction including with legal staff of the three Courts.
4. To identify avenues for cooperation and shared actions in the enforcement of decisions and amicable settlements.
5. To discuss the evolution of the cooperation since the first tripartite judicial dialogue and evaluate the implementation of its action plan.
6. To explore an avenue for cooperation with other regional, international tribunals and international human rights mechanisms, including UN Treaty Bodies.
Theme of the 2nd Tripartite Judicial Dialogue:
The deliberations of the 2nd Tripartite Judicial Dialogue will focus on the following four topics: –
1. Right to Education (in line with the AU’s theme for 2024): The Year of Education declared by the 36th Ordinary Session of the AU aims to accelerate the achievement of SDG 4 and the Continental Strategy for Education in Africa (CESA).
2. The dialogue will explore ways to enhance the justiciability of economic, social, and cultural rights, with a special emphasis on the right to education. It will involve discussions on harmonizing interpretations of educational rights across various human rights instruments, sharing jurisprudence on educational rights cases, and establishing clear legal standards for member states.
Human Rights and the Environment:
Recognizing the growing interconnection between human rights, climate change, and environmental protection, this topic will explore the role of continental and regional courts in addressing these issues. It will highlight the evolving jurisprudence on environmental rights, particularly under the African Charter on Human and Peoples’ Rights (Banjul Charter), African Convention on the Conservation of Nature and Natural resources, Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, Revised African Convention on the Conservation of Nature and Natural Resources and discuss how courts can contribute to integrating human rights considerations into environmental protection measures.
Stock-taking of the implementation of resolutions from the 1st Tripartite Judicial Dialogue: To ensure continuity and effectiveness, the dialogue will review the progress of implementing resolutions and recommendations from the previous judicial dialogue. It will include updates on case law developments concerning women’s rights, elections, health, and indigenous rights, aiming to maintain a shared understanding of evolving jurisprudential trends among the participating courts.
Financing of international courts: Given the financial challenges faced by the African Court, ECOWAS Court of Justice, and East African Court of Justice, this topic will examine the sources of funding and their implications for judicial independence and accessibility. Discussions will focus on sustainable funding strategies, economic impacts of adjudication costs, and the broader implications for international rule of law-building processes in Africa. Alternative funding mechanisms will be explored to enhance the sustainability and independence of these judicial bodies.
Session One: Financing of International Courts
Topic: “Sustainable Funding for Continental and Regional Courts in Africa: Challenges and opportunities towards the establishment of a mechanism financing continental and regional human rights courts”
Day 2: Session Two: Human Rights and the Environmental Rights.
Topic: “Integrating Human Rights and Environmental Rights: The Role of African Continental and Regional Courts, and the Evolving Jurisprudence of these Courts under the Banjul Charter and the African Convention on the Conservation of Nature and Natural Resources”
Session Three: The Right to Education.
Topic: “The Right to Education in Africa: Comparative Analysis, Justiciability, Challenges, and Best Practices”
Day 3: Session Four: Stock-Taking of the Implementation of Resolutions from the 1st Tripartite Judicial Dialogue and Forward Planning for Recommendations from the 2nd Judicial Dialogue.
Topic: “Progress, Challenges, and Developments since the 1st Tripartite Judicial Dialogue and Way Forward on Implementation of the New Recommendations”
Signing/Renewal of Cooperation Memoranda of Understanding Between the Continental and Regional Courts
Adoption of Outcome Documents
Formal Closing Session
Methodology, Participation and Expected Outcome:
The Judicial Dialogue between the three Courts will be interactive, consisting of paper and panel presentations followed by plenary and roundtable discussions.
To include the perspectives of critical stakeholders such as bar associations, the first day of the dialogue will be opened to their participation. The second and third days will be closed to the public, involving only judges, court staff, and relevant resource persons. The focus on the third day will be on identifying the way forward, particularly in terms of institutional synergies and cooperation models that could be created, strengthened, or further developed among continental and regional human rights judicial bodies, as well as international tribunals such as the UN Treaty Bodies.
The Dialogue brings together Judges and Staff from the African Court, the CCJ, and the EACJ. Relevant AU and UN human rights treaty body members, resource persons drawn from the RWI Academic Network, and representatives of partnering institutions and invited stakeholders will contribute to the dialogue through presentations and discussions.
The participation of a diverse range of stakeholders in the plenaries, including relevant AU and UN organs and treaty bodies, regional bar associations, and representatives of national human rights institutions (NHRIs) and civil society organizations (CSOs), will bring varied perspectives and expertise to the discussions, leading to more comprehensive and effective solutions from the judicial dialogue. It will facilitate the exchange of best practices, innovative approaches, and lessons learned from different jurisdictions. The institutions to be invited include: Relevant UN Treaty Bodies; African Union Commission (AUC); the African Commission on Human and People’s Rights (ACHPR); the African Committee of Experts on the Rights and Welfare of the Child (ACERWC); the Network of African National Human Rights Institutions (NANHRI); Pan African Lawyers Union (PALU); East Africa Law Society (EALS); African Bar Association (AfBA); West African Bar Association (WABA); Southern African Development Community Lawyers Association (SADCLA); and the Solidarity for African Women Right’s (SOAWR).
4.1 Expected Outcome:
Upon completion of the 2nd judicial dialogue, participants are expected to: –
Gain a Comprehensive understanding of the relevance and importance of deepening Judicial cooperation in the context of African human rights framework;
Possess a greater understanding on how best to contribute to a more coherent interpretation and implementation of international human rights standards through adjudication and the development of judicial norms;
Foster stronger collaboration, coordination and knowledge-sharing among the continental and regional humanb rights courts in Africa, as well as other African human rights bodies, Bar Associations and UN Treaty bodies.