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The African Charter on Democracy, Elections and Governance as a Human Rights Instrument

  • Gérard Niyungeko (a1)

Abstract

According to various provisions of the Protocol Establishing the African Court on Human and Peoples’ Rights, the court has jurisdiction over the interpretation and / or application of human rights instruments ratified by the states concerned. This article considers whether, in terms of those provisions, the African Charter on Democracy, Elections and Governance (ACDEG) is a relevant human rights instrument over which the court can exercise its jurisdiction. It aims to consider the contours of the main question posed and clarify the relevant aspects in light not only of the court's jurisprudence but also of the overall legal framework of the African Union. In this regard, before drawing appropriate conclusions, it addresses three main questions. What is a human rights instrument? Which elements in the ACDEG clearly relate to human rights? And, what is the court's approach on the issue?

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Corresponding author

Footnotes

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Professor, Faculty of Law, University of Burundi; former judge and president, African Court on Human and Peoples’ Rights. The views expressed in this article are strictly personal to the author and are not binding on the court.

Footnotes

References

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1 During the discussions preceding the adoption of the Court Protocol in 1997, the African Society of International and Comparative Law raised the issue of what is an “African human rights instrument”, although no provision in this regard was ultimately included in the protocol. See “Comments on the Draft (Nouakchott) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights” (1997) at 4, 5 and 7 (copy on file with the author).

2 Garner, BA Black's Law Dictionary (9th ed, 2009, West Group) at 809.

3 Salmon, J (ed) Dictionnaire de Droit International Public [Dictionary of Public International Law] (2003, Bruylant) at 396 (author's translation). It is important to note that, apart from individual rights, international law also recognizes some collective rights for groups, such as peoples; see for instance the African Charter on Human and Peoples’ Rights, arts 19–24.

4 See Garner Black's Law Dictionary above at note 2 at 869 (also termed “legal instrument”).

5 Salmon Dictionnaire, above at note 3 at 588 (author's translation). Compare with art 2(1) of the Vienna Convention of 23 May 1969 on the Law of Treaties: “For the purposes of the present Convention: (a) ‘Treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation” (emphasis added).

6 In the case of the UN system, for instance, see Office of the High Commission on Human Rights “Universal human rights instruments”, available at: <https://www.ohchr.org/EN/ProfessionalInterest/Pages/UniversalHumanRightsInstruments.aspx> (last accessed 12 December 2018).

7 See also: The OAU Convention on the Prevention and Combating of Terrorism (14 July 1999), preamble; Protocol to the OAU Convention on the Prevention and Combating of Terrorism (8 July 2004), preamble and art 3(1)(a).

8 Appln 014/2011, judgment of 15 March 2013, paras 1 and 17–24, available at: <http://www.african-court.org/en/images/Cases/Judgment/Judgment%20Application%200142011%20Denis%20Atemnkeng%20V.%20African%20Union.pdf> (last accessed 15 February 2019).

9 Id, para 25.

10 Id, paras 39–40 and 46. See also Femi Falana v African Union appln 001/2011, judgment of 26 June 2012, especially paras 63, 67, 70, 73 and 75, available at: <http://en.african-court.org/images/Cases/Judgment/Judgment%20Application%20001-2011-%20Femi%20Falana%20v.%20The%20AU.%20Application%20no.%20001.2011.EN.pdf> (last accessed 15 February 2019).

11 East African Community Treaty, art 6(d).

12 Id, art 7(2).

13 See for example James Katabazi and 21 Others v Secretary General of the East African Community and the Attorney General of the East African Community and the Attorney General of the Republic of Uganda, 1 November 2007, East African Court of Justice Law Report (EACJLR) (2005–11) 58, para 39; Plaxeda Rugumba v The Secretary General of the East African Community and the Attorney General of the Republic of Rwanda  EACJLR (2005–11) 226 at 236–38, paras 42, 43 and 45: Samuel Mukira Mohochi v The Attorney General of the Republic of Uganda, 17 May 2013, EACJLR (2005–11) 274 at 281, para 25; Venant Masenge v The Attorney General of the Republic of Burundi, 18 June 2014, EACJLR (2012–15) 136 at 141, para 29.

14 Opinion of 28 September 2017, para 5.

15 Id, paras 33–39.

16 Cultural Charter for Africa (5 July 1976), preamble.

17 Id, art 2(a).

18 Charter for African Cultural Renaissance (24 January 2006), preamble and art 4.

19 Id, art 3(b).

20 Convention on Preventing and Combating Corruption (11 July 2003), art 2(4).

21 Id, art 3(2).

22 For a general presentation of the ACDEG, see, inter alia: B Tchicaya “La Charte Africaine de la Démocratie, des Élections et de la Gouvernance” [the ACDEG] (2008) Annuaire Français de Droit International 515; Mangu, AMAfrican civil society and the promotion of the African Charter on Democracy, Elections and Governance” (2012) 2 African Human Rights Law Journal 348; Glen, PJInstitutionalizing democracy in Africa: A comment on the African Charter on Democracy, Elections and Governance” (2012) 5 African Journal of Legal Studies 149; Elvy, S-ATowards a new democratic Africa: The African Charter on Democracy, Elections and Governance” (2013) 27 Emory International Law Review 41.

23 With respect to democracy, the ACDEG's preamble dwells on “popular participation”, “consolidation of democracy”, “universal values and principles of democracy”, promotion of “a political culture of change of power based on the holding of regular, free, fair and transparent elections conducted by competent, independent and impartial national electoral bodies”, “participatory democracy” and enhancing “the election observation mission” (arts 2–4, 11–22 and 32).

24 Concerning the principle of good governance, see id, preamble, arts 2–3 and 27–43.

25 As for the rule of law principle, see id, preamble, arts 2–5, 10, 23–26 and 32.

26 Id, preamble, paras 1 and 5.

27 See, for instance, Mangu “African civil society”, above at note 22 at 354 and 355. ACDEG, chap 4 (arts 4–10) is meaningfully entitled “Democracy, rule of law and human rights”.

28 According to the World Bank, “good governance entails sound public sector management (efficiency, effectiveness and economy), accountability, exchange and free flow of information (transparency), and a legal framework for development (justice, respect for human rights and liberties”, cited in UN Economic and Social Council, Committee of Experts on Public Administration “Definitions of basic concepts and terminologies in governance and public administration: Note by the Secretariat” E/c.16/2006/4 (5 January 2006), para 11 (emphasis added).

29 According to the UN Secretary General, “[t]he ‘rule of law’ is a concept [that] … refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”: UN Secretary General Report to the UN Security Council on Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, S/2004/616 (23 August 2004), para 6 (emphasis added).

30 On the nexus between democracy and human rights, see also: PJ Glen “Institutionalizing democracy”, above at note 22 at 162; and Elvy “Towards a new democratic Africa”, above at note 22 at 55–56 and 82–83. According to Mangu, “[t]he African Democracy Charter complements the African [Human Rights] Charter by adding the right to democracy, free and fair elections and good governance to the human and peoples’ rights provided for in the African Charter”: Mangu “African civil society”, above at note 22 at 351.

32 Id, paras 33–39.

33 This rule, which concerns the application in advisory matters of provisions relating to contentious procedure, provides: “The Court shall apply, mutatis mutandis the provisions of Part IV of these Rules to the extent that it deems them appropriate and acceptable.”

34 Order 001/2014, 5 June 2015, para 13, available at: <http://www.african-court.org/en/images/Cases/Advisory%20Opinion/Orders/Order%20-%20Advisory%20Opinion%20001-2014%20-%20Engl..pdf> (last accessed 15 February 2019). The issues submitted by the authors of the request had to do with the hierarchy between the Rome Statute on the International Criminal Court and decisions of the AU, with respect to the obligation of states to cooperate in the execution of arrest warrants (id, para 5). See also request for advisory opinion from Socio-Economic Rights & Accountability Project, order of 15 March 2013.

35 The ACtHPR's judgment (18 November 2016) is available at: <http://www.african-court.org/en/images/Cases/Judgment/JUDGMENT_APPLICATION%20001%202014%20_%20APDH%20V.%20THE%20REPUBLIC%20OF%20COTE%20DIVOIRE.pdf> (last accessed 15 February 2019). Subsequently, the respondent state applied for an interpretation of this judgment, but in its judgment of 28 September 2017 the ACtHPR found the application inadmissible. In any event, the question under discussion here was not part of the application.

36 Id, para 135.

37 Id, para 136.

38 Id, para 150.

39 Id, para 151.

40 Id, para 49.

41 The AU Commission argued that the ACDEG is a human rights instrument because: one of its objectives is to promote respect for human rights (arts 2(1) and 3(1)); and because state parties commit themselves to promote human rights and popular participation through universal suffrage as the inalienable right of the people (art 4), as well as to ensure that their citizens enjoy fundamental freedoms and human rights taking into account their universality, interdependence and indivisibility (art 6). See also id, paras 51–52.

42 The African Institute of International Law also argued that the ACDEG is a human rights instrument because: it is a treaty to implement the subjective rights enshrined in the African Charter; it forms part and parcel of the African human rights architecture; the interstate commitments it contains are positive obligations arising out of political rights and liberties of the individual; and it contains individual rights provisions (brief of amicus curiae, January 2016). See also id, paras 53–55.

43 Id, paras 28–29.

44 Id, para 57.

45 Id, para 59.

46 Id, para 60.

47 Id, para 62.

48 Id, para 63.

49 Id, para 65. Judge Fatsah Ouguergouz's separate opinion expresses the view that the ACtHPR might have elaborated its reasoning more by underscoring the dialectic link between democracy and respect for human rights and fundamental liberties or freedoms (para 2).

50 The situation would be different before the ECOWAS Court of Justice, regarding the ECOWAS Democracy Protocol, because that court has a general “competence to adjudicate any dispute relating to … [t]he interpretation and application of the Treaty, Conventions and Protocols of the Community…” (emphasis added): art 3.1 of the Supplementary Protocol of 19 January 2005, amending the Protocol on the Community Court of Justice, new art 9 of that protocol. See for instance the case of Congrès pour la Démocratie et le Progrès (CDP) and Others v Burkina Faso. The applicants, political parties that new electoral legislation did not allow to compete in electoral processes, had invoked, inter alia, the violation of art (1)(i) of the ECOWAS Democracy Protocol, which provides, among other things, that political parties “shall participate freely and without hindrance or discrimination in any electoral process”. The court decided indeed that Burkina Faso's Electoral Code, as modified by the new law of 7 April 2015, violates the right to participate freely in elections and ordered Burkina Faso to remove all obstacles following upon that modification: judgment of 13 July 2015, para 38, available at: <http://www.courtecowas.org/site2012/pdf_files/decisions/judgements/2015/Aff_CDP_c_l_Etat_du_Burkina.pdf> (last accessed 15 February 2019). On the other hand, it is worth noting that the Pact on Security, Stability and Development in the Great Lakes Region (of 14–15 December 2006) is an example of a treaty that vests (in art 29) the “African Court of Justice” with jurisdiction to settle disputes arising from its interpretation and application, where non-judicial disputes settlement means have failed. Interestingly, one of the protocols to the pact (which are an integral part of it) is the Protocol on Democracy and Good Governance of 1 December 2006. It is however not clear to which African court this refers. See: <http://www.icglr.org/images/Pact%20ICGLR%20Amended%2020122.pdf> (last accessed 15 February 2019).

51 It is noteworthy that the court to which art 45 of the ACDEG relates is the African Court of Justice and Human Rights, established by virtue of the Protocol on the Statute of the African Court of Justice and Human Rights of 1 July 2008, which has not yet come into force, available at: <https://au.int/sites/default/files/treaties/7792-treaty-0035_-_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_e.pdf> (last accessed 15 February 2019).

52 APDH v Côte d'Ivoire, above at note 35, para 70.

53 Id, paras 64–65. In this case, the applicants formulated their claims in the form of a right to have impartial and independent national electoral bodies (reply, sec B), but the ACtHPR did not use the same language and did not follow the same approach. In his separate opinion, Judge Fatsah Ouguergouz seems to maintain (in para 34) that it was not necessary for the ACtHPR to rely on the African Charter and the ECOWAS Democracy Protocol from the time the court found that the ACDEG was a human rights instrument, and that it would have been sufficient for it to interpret and apply the latter.

54 Some of the provisions that pertain to commitments to promote democracy, good governance and the rule of law, as listed in notes 24–26 above, might be of such a nature.

55 On the extensive scope of the ACtHPR's material jurisdiction in advisory matters, see, inter alia, Ondoua, AArticle 4: Avis consultatifs” [Article 4: Advisory opinions] in Kamto, M (ed) La Charte Africaine des Droits de l'Homme et des Peuples et le Protocole y Relatif Portant Création de la Cour Africaine des Droits de l'Homme, Commentaire Article par Article (2011, Bruylant) 1259.

* Professor, Faculty of Law, University of Burundi; former judge and president, African Court on Human and Peoples’ Rights. The views expressed in this article are strictly personal to the author and are not binding on the court.

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Journal of African Law
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