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

  • Ben Kioko (a1)

Abstract

The African Charter on Democracy, Elections and Governance requires state parties to establish and strengthen democratic institutions, the rule of law, human rights and independent electoral systems. However, the extent to which these provisions can be invoked by individuals and non-governmental organizations before a court of law is uncertain. It is also unclear whether such provisions guarantee “stand-alone” individual rights and as such whether the charter could be considered to be a human rights instrument. This article seeks to analyse whether the charter is a human rights instrument, as well as examining its justiciability in light of the decision of the African Court on Human and Peoples’ Rights in APDH v Côte d'Ivoire. The analysis highlights the court's decision affirming that the charter is a human rights instrument and that individuals and non-governmental organizations can file cases in a court of law seeking its enforcement.

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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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Judge and vice president, African Court on Human and Peoples’ Rights. Former legal counsel to the African Union Commission. 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 On 16 January 2012, Cameroon became the 15th state to ratify the ACDEG and deposit the instrument of ratification.

2 See Declaration on the Principles Governing Democratic Elections in Africa, AHG/Decl.1 (XXXVIII), 2002, chap II: “(1) Democratic elections are the basis of the authority of any representative government. (2) Regular elections constitute a key element of the democratization process and therefore, are essential ingredients for good governance, the rule of law, the maintenance and promotion of peace, security, stability and development. (3) The holding of democratic elections is an important dimension in conflict prevention, management and resolution.”

3 See ACDEG, preamble.

4 AU Constitutive Act, arts 3 and 4, adopted on 11 July 2000.

5 Maluwa, TRatification of African Union treaties by member states: Law, policy and practice” (2012) 13/2 Melbourne Journal of International Law 636 at 639.

6 ACDEG, chap 7.

7 Id, art 23(2) states that “any Member State that fails to comply with the decisions and policies of the Union may be subjected to other sanctions, such as the denial of transport and communications links with other Member States, and other measures of a political and economic nature to be determined by the Assembly”.

8 Declarations and decisions of the (O)AU, including: the 1990 Declaration on the Political and Socio-Economic Situation in Africa and the Fundamental Changes Taking Place in the World; the 1995 Cairo Agenda for the Re-launch of Africa's Economic and Social Development; the 1999 Algiers Declaration on Unconstitutional Changes of Government; the 2000 Lomé Declaration for an OAU Response to Unconstitutional Changes of Government; the 2002 (O)AU Declaration on Principles Governing Democratic Elections in Africa, decision EX.CL/Dec.31(III) adopted in Maputo, Mozambique, in July 2003. This last declaration was made in accordance with decision EX.CL/124(V), adopted in Addis Ababa, Ethiopia, in May 2004, that “requested the Commission to convene a meeting of Governmental Legal and other Experts to formulate a Draft Charter on Elections, Democracy and Governance in Africa, based on the collective commitments already made by Member States in these domains and submit the document thereof at its 7th Ordinary Session”.

9 Notably, the AU Commission, the Pan-African Parliament, the Peace and Security Council, the ACtHPR, the African Commission on Human and Peoples’ Rights, the Committee on the Rights and Welfare of the Child, the Economic, Social and Cultural Council and the regional economic communities (ACDEG, art 45(c)).

10 Art 46 provides that “the Assembly and the Peace and Security Council shall determine the appropriate measures to be imposed on any State Party that violates this Charter”.

11 Art 30 stipulates that “Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union”.

12 The ACDEG was adopted almost three years before the Kampala Convention on Internally Displaced Persons, 2009 (Kampala Convention).

13 Art 37 obligates state parties to “pursue sustainable development and human security through achievement of NEPAD objectives and the United Nations Millennium Development Goals”.

14 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 2014.

15 The issue of terrorism was neither raised in the initial drafts nor by the delegates, perhaps because it is adequately addressed in the 1999 AU Convention on Preventing and Combating Terrorism, which entered into force on 26 December 2002.

16 This section of the article is largely based on the author's personal observations and notes on the negotiating process, as well as official documents of the various meetings of senior officials, ministerial meetings and the session of the Assembly of Heads of State and Government at which the final text was formally considered and adopted. Also see Draft/Charter/II/Rev.1, Draft/Charter/II/Rev.2 and the report, Draft/Min/RPT/II of the ministerial meeting on the ACDEG, 9–10 June 2006, Brazzaville, Congo (copies on file with the author).

17 The current art 10(2) provides: “States Parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum.”

18 Art 2(6) on objectives states, “… nurture, support and consolidate good governance by promoting democratic culture and practice, building and strengthening governance institutions and inculcating political pluralism and tolerance”.

19 Art 2(10) was not amended and requires states to “foster citizen participation, transparency, access to information, freedom of the press and accountability in the management of public affairs”.

20 See DraftMin/RPT/II, above at note 16, paras 21–23.

21 Id, para 22.

23 Id, para 23.

24 See conclusion, ibid.

25 Art 8(2) provides: “State Parties shall guarantee the rights of women, ethnic minorities, migrants, people with disabilities, refugees and displaced persons and other marginalized and vulnerable social groups.”

26 See Draft/Min/RPT/II, above at note 16. However, this aspect is from the author's personal notes and was not reflected in the brief report of the meeting.

27 Art 10(2) as it stood provided that: “State Parties shall ensure that a referendum is entrenched as one of the best means of amending the constitution.”

28 For the final version of art 10(2), see above at note 17.

29 Tanzania's current Constitution of 1977, as amended, establishes a specialized electoral court to deal with all electoral disputes arising out of parliamentary and other elections, except for presidential elections.

30 See Draft/Min/RPT/II, above at note 16. However, this aspect is from the author's personal notes and was not reflected in the brief report of the meeting.

31 See id, para 16.

32 Id, paras 17–20.

33 Id, para 17.

34 Id, para 19.

35 Id, para 20.

36 APDH v Côte d'Ivoire app no 003/2017, judgment of 18 November 2016, para 118.

37 Id, paras 24–26. Art 25(5) of the draft Brazzaville text read: “Amendment or revision of constitutions and legal instruments, contrary to the provisions of the constitution of the State Party concerned, to prolong the tenure of office for the incumbent government …. The final provision is now contained in art 23(5) of the ACDEG, which speaks to: “any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government”.

38 See Draft/Min/RPT/II, above at note 16, para 25.

39 Id, para 27. “For want of a consensus on the provisions of paragraph 5 of art 25, the Ministers decided to refer the matter for a final decision to the Executive Council and the Assembly of Heads of State and Government scheduled to hold from 25 June to 2 July 2006”: id, para 27. At the ninth ordinary session of the Executive Council held on 25 June 2006 in Banjul, The Gambia, the AU Commission was requested “to review the legal form of the Draft Charter including the content of article 25(5) in the light of comments and observations made on that article and resubmit it to the next session … for its consideration and approval”: decision EX.CL/Dec.288 (IX).

40 The consultation that resulted in a breakthrough was held outside the AU Conference Centre and involved two ministers, one opposed to the provision and the other defending the current formulation. It was facilitated by the author, who was then legal counsel. The main concern, as articulated by the first minister, was that his country intended within a few months to amend the constitution to extend the government's tenure of office and, in his view, it was not clear from the provision that this could be done. The other minister explained, supported by the legal counsel, that such action was not prohibited so long as it was done in accordance with the constitution. As a way out, it was agreed that the country concerned would ask the legal counsel at the plenary for an explanation of the meaning of art 25(5). Subsequently, the concerned country would formally request the legal counsel in writing to reiterate his explanation to the plenary. This was done, which explains why para 3 of Executive Council decision EX.CL/Dec.320 (X) refers to clarifications provided by legal counsel.

41 See the definition of “justiciability” in Black, HC Black's Law Dictionary (1979, West Publishing) at 943.

42 Rohde, H and Spaeth, D Supreme Court Decision Making (1976, Freeman) at 156.

45 Lauterpacht, HThe doctrine of non-justiciable disputes in international law” (1928) 24 Economica 277 at 289.

46 Stewart, D and Dennis, MJusticiability of economic, social and cultural rights: Should there be an international complaints mechanism to adjudicate the rights to food, water, housing and health?” (2004) 98/3 American Journal of International Law 462.

47 International Covenant on Economic, Social and Cultural Rights (adopted on 16 December 1966), art 2(1).

48 In recent years, economic, social and cultural rights previously considered “non-justiciable” have been litigated in different international and regional judicial and quasi-judicial institutions. See Purohit and Moore v Gambia comm 241/2000, decided at the 33rd ordinary session of the African Commission on Human and Peoples’ Rights (ACHPR), 15–29 May 2003 (dealing with the right to health of mental health patients); SERAC and CESR v Nigeria ACHPR case no 155/96, decision made at 30th ordinary session, Banjul, The Gambia, 13–27 October 2001 (dealing with the right to health and the implied rights to food and housing); Comunidad Mayagna (Sumo) Awas Tingni v Nicaragua Inter-American Court of Human Rights Series C, no 79, 31 August 2001 (involving the right to property); and FIDH v France complaint no 14/2003, 8 September 2004 (dealing with the right to medical assistance of non-nationals). The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights enables victims of economic, social and cultural rights violations to seek justice at the international level, when unable to do so in their own countries.

49 For a more detailed discussion of APDH v Côte d'Ivoire, please see G Niyungeko “The African Charter on Democracy, Elections and Governance as a human rights instrument” in this issue.

50 These assertions were contained in his application before the ACtHPR and were not contested by the respondent state.

51 Art 3 states: “The bodies responsible for organising the elections shall be independent or neutral and shall have the confidence of all the political actors. Where necessary, appropriate national consultations shall be organised to determine the nature and the structure of the bodies.”

52 ICCPR, art 26 provides: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”

53 See APDH v Côte d'Ivoire, above at note 36, paras 37–40.

54 Art 3(1) extends the ACtHPR's jurisdiction “to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant human rights instrument ratified by the States concerned”.

55 See APDH v Côte d'Ivoire, above at note 36, para 65.

56 Arts 5(3) and 34(6) limit access to the ACtHPR by non-governmental organizations and individuals to cases against states that have filed a declaration “accepting the competence of the Court to receive cases” from individuals and NGOs.

57 See APDH v Côte d'Ivoire, above at note 36, paras 43–46.

58 Id, para 67.

59 Nobert Zongo and Others v Burkina Faso appln no 013/2011, judgment of 28 March 2014, para 68. Reverend Christopher R Mtikila v Tanzania appln no 011/2011, judgment of 14 June 2013, para 82.1.

60 Paras (3) and (5) contain two conditions relevant to this case, providing respectively that: applications do “not contain any disparaging or insulting language” and are “filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged”.

61 See APDH v Côte d'Ivoire, above at note 36, paras 73–75.

62 Comm no 284/2003, ACHPR (3 April 2009), para 9. The Court had adopted the same reasoning in Nobert Zongo, above at note 59, para 68 and Matter of Reverend Christopher Mtikila, above at note 59.

63 APDH v Côte d'Ivoire, above at note 36, paras 73–75.

64 O Windridge “Equality and electoral commissions: APDH v Côte d'Ivoire” (7 February 2017) The ACtHPR Monitor, available at: <http://www.acthprmonitor.org/equality-and-electoral-commissions-apdh-v-the-republic-of-cote-divoire/> (last accessed 12 December 2018).

66 See APDH v Côte d'Ivoire, above at note 36, paras 93–95.

67 Art 77(2) provides: “human rights advocacy associations may refer to the Constitutional Council only laws relating to public freedoms”.

68 In conformity with its previous decision in Lohe Issa Konate v Burkina Faso appln 004/2013, judgment of 5 December 2014, para 112.

69 Art 17 obligates state parties to: “(1) Establish and strengthen independent and impartial national electoral bodies responsible for the management of elections. (2) Establish and strengthen national mechanisms that redress election-related disputes in a timely manner. (3) Ensure fair and equitable access by contesting parties and candidates to state controlled media during elections (4) Ensure that there is a binding code of conduct … The code shall include a commitment by political stakeholders to accept the results of the election or challenge them in through exclusively legal channels.”

70 See APDH v Côte d'Ivoire, above at note 36, paras 121–30.

71 Id, para 123.

72 This imbalance was also highlighted in the October 2015 report of the AU Elections Observer Mission on the 2015 elections in Côte d'Ivoire, which noted (APDH v Côte d'Ivoire, para 132) “that there is an imbalance in the numerical representation of the ruling coalition and the political parties” and that “the electoral authority does not command consensus within the political class, although the current IEC is the outcome of negotiations between the ruling party and the opposition parties, despite its heavy political component”.

73 See APDH v Côte d'Ivoire, above at note 36, paras 137–39.

74 Id, para 142.

75 ACDEG, art 10(3) stipulates: “State Parties shall protect the right to equality before the law and equal protection by the law as a fundamental precondition for a just and democratic society.”

76 The African Charter, art 3 provides: “(1) Every individual shall be equal before the law. (2) Every individual shall be entitled to equal protection of the law.”

77 ICCPR, art 26 provides: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

78 Andriantsimbazovina, J, Gaudin, H, Maguénaud, J-P, Rials, S and Sudre, F (eds) Dictionary of Human Rights (2008, French University Press) at 284. See also Salmon, J (ed) Dictionnaire de Droit International Public [Dictionary of International Public Law] (2001, Bruylant) at 344, as quoted in APDH v Côte d'Ivoire, above at note 36, paras 146–47.

79 Appln 1022/03, judgment of 8 July 2008, para 21.

80 The African Charter, arts 60 and 61.

81 Viljoen, F International Human Rights Law in Africa (2007, Oxford University Press) at 444.

82 The ACtHPR may also use this provision in the future to apply instruments including: the AU Convention on Preventing and Combating Corruption, 2003; the Kampala Convention; the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons, 2016; and the AU Convention on Cyber Security and Personal Data Protection, 2014.

83 APDH v Côte d'Ivoire, above at note 36, para 57.

84 Id, paras 57–66.

85 Id, paras 143 and 144. For the text of ACDEG, art 10(3), see above at note 75. For art 3 of the African Charter, see above at note 76.

86 APDH v Côte d'Ivoire, above at note 36, para 153.

87 Id, para 148.

88 Yumak and SADK, above at note 79.

89 Id, para 77.

90 Id, para 76.

91 Lohe Issa Konate, above at note 68, para 176 and Rev Christopher Mtikila, above at note 59.

92 Daly, TG and Wiebusch, MThe African Court on Human and Peoples’ Rights: Mapping resistance against a young court” (2018) 14/2 International Journal of Law in Context 294.

93 Following the ACtHPR's judgment, Burkina Faso reported to the court that it had fully complied with the judgment by, inter alia, amending its domestic legislation on defamation and paying the compensation ordered by the court. Tanzania's new draft constitution, adopted by the constituent assembly in 2016, is compliant with the ACtHPR's judgment but has not yet been enacted. Côte d'Ivoire publicly announced its intention to comply but is yet to amend its laws.

94 “African Union agenda 2063: A shared strategic framework for inclusive growth and sustainable development”, adopted by the AU Assembly of Heads of State and Government at its 24th ordinary session, held in Addis Ababa, Ethiopia, 30–31 January 2015, available at: <https://au.int/en/agenda2063> (last accessed 20 February 2019).

95 APDH v Côte d'Ivoire, above at note 36, para 57.

96 Id, paras 114–15.

97 Id, para 116.

98 Id, para 118. This is also the position of the International Institute for Democracy and Electoral Assistance (IDEA) in Electoral Management Design Handbook (2010, IDEA) at 7.

99 APDH v Côte d'Ivoire, id, para 61.

100 App no 003/2017, judgment of 28 September 2017: interpretation of the judgment of 18 November 2016, APDH v Côte d'Ivoire.

101 Windridge “Equality and electoral commissions”, above at note 64, para 118.

102 Apps no 009/2011 and 011/2011, respectively, judgment of 14 June 2013, paras 107.1–119.

103 MJ Ayissi “Introductory note to APDH v Côte d'Ivoire” (November 2016) American Society of International Law 574.

104 See APDH v Côte d'Ivoire, above at note 36, para 16.

* Judge and vice president, African Court on Human and Peoples’ Rights. Former legal counsel to the African Union Commission. The views expressed in this article are strictly personal to the author and are not binding on the court.

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