The African Court for Human and Peoples' Rights, one of the main
organs designed to deal with human rights abuses on the African
continent, is struggling to see the light of day.
Commentators are suggesting it could only be formed next year, more than 12 months after its intended establishment.
"We may have in place significant principles, but the mechanisms still need to be worked out," said advocate Brian Spilg, human rights convenor of the General Council of the Bar of South Africa.
Bearing this in mind, Spilg said it will be premature for the judges who will serve on this body to be appointed by the proposed July date.
His understanding is that appointments will only follow after the seat of the court is decided at the African Union Summit in July.
Spilg says it is essential that there is a transparent process for the nomination and election of judges, based on fair representation for the legal systems on the continent, including securing proper gender balance.
The court will see 11 judges serving on it, one permanent member and 10 temporary members doing duty when the need arises.
The establishment of the court, first proposed during the 1960s, only became a real possibility in 2004 when 15 countries, including South Africa, ratified the 1998 protocol paving the way for the court to be established.
According to Spilg, no procedural rules for the court have been worked out yet, so presiding officers have no guidelines to act when confronted with cases.
"What happens in the case of a human rights violation, who can bring it, what procedural laws will apply and what kind of sanctions can be imposed?" he asked.
The location of the court is still undecided, with front-runner countries including Senegal, South Africa and Ethiopia.
Spilg describes the establishment of the "supercritical" as an imperative, with regard to the "unfortunate number of despotic regimes with lack of accountability" -- a trend Africa is trying to eradicate with its New Partnership for Africa's Development (Nepad).
However, Spilg said getting African Union (AU) states to support the process is going to be the litmus test. This despite the fact that all 53 African countries belonging to the AU are parties to the African Charter on Human and Peoples' Rights.
"Unless far more countries submit to the scrutiny of the African Court, it is unlikely that we will see the socio-economic upliftment envisaged by Nepad," said Spilg.
According to the national director of Lawyers for Human Rights, the establishment of the "supra-national" court is similar to bodies found in Europe and in the Americas.
"They form part of the democratisation of international politics and the international order," said advocate Rudolph Jansen.
He said individuals will be able to take their governments to court, which can apply the rights of the African Charter on Human and Peoples' Rights.
"However, these courts do not have enforcement mechanisms in the same way as domestic courts and governments can choose to ignore them," said Jansen.
Echoing Spilg's concerns, Jansen said it remains to be seen whether African countries respect the court's judgments.
"The court's power lies in the persuasive value of its judgments," said Jansen, adding that the "crux" of the matter is the extent to which countries support the court and its decisions.
Jansen says it is important the AU has at its core, human rights that protect the individual because as can be seen in the current Democratic Republic of the Congo situation, violations of these rights in one country inevitably have a "spill-over effect" in other countries.
Professor Christof Heyns, the director of the University of Pretoria's Centre for Human Rights said the court will have a "simulated session" in August this year.
Seventy-five law faculties from most countries in Africa will send representatives to Dar es Salaam, where they will participate in a simulated session of the African Court.
Heyns says teams of students from participating faculties will argue a hypothetical case concerning HIV/Aids before a panel of judges, who will include prominent African human rights lawyers. – Sapa.
Commentators are suggesting it could only be formed next year, more than 12 months after its intended establishment.
"We may have in place significant principles, but the mechanisms still need to be worked out," said advocate Brian Spilg, human rights convenor of the General Council of the Bar of South Africa.
Bearing this in mind, Spilg said it will be premature for the judges who will serve on this body to be appointed by the proposed July date.
His understanding is that appointments will only follow after the seat of the court is decided at the African Union Summit in July.
Spilg says it is essential that there is a transparent process for the nomination and election of judges, based on fair representation for the legal systems on the continent, including securing proper gender balance.
The court will see 11 judges serving on it, one permanent member and 10 temporary members doing duty when the need arises.
The establishment of the court, first proposed during the 1960s, only became a real possibility in 2004 when 15 countries, including South Africa, ratified the 1998 protocol paving the way for the court to be established.
According to Spilg, no procedural rules for the court have been worked out yet, so presiding officers have no guidelines to act when confronted with cases.
"What happens in the case of a human rights violation, who can bring it, what procedural laws will apply and what kind of sanctions can be imposed?" he asked.
The location of the court is still undecided, with front-runner countries including Senegal, South Africa and Ethiopia.
Spilg describes the establishment of the "supercritical" as an imperative, with regard to the "unfortunate number of despotic regimes with lack of accountability" -- a trend Africa is trying to eradicate with its New Partnership for Africa's Development (Nepad).
However, Spilg said getting African Union (AU) states to support the process is going to be the litmus test. This despite the fact that all 53 African countries belonging to the AU are parties to the African Charter on Human and Peoples' Rights.
"Unless far more countries submit to the scrutiny of the African Court, it is unlikely that we will see the socio-economic upliftment envisaged by Nepad," said Spilg.
According to the national director of Lawyers for Human Rights, the establishment of the "supra-national" court is similar to bodies found in Europe and in the Americas.
"They form part of the democratisation of international politics and the international order," said advocate Rudolph Jansen.
He said individuals will be able to take their governments to court, which can apply the rights of the African Charter on Human and Peoples' Rights.
"However, these courts do not have enforcement mechanisms in the same way as domestic courts and governments can choose to ignore them," said Jansen.
Echoing Spilg's concerns, Jansen said it remains to be seen whether African countries respect the court's judgments.
"The court's power lies in the persuasive value of its judgments," said Jansen, adding that the "crux" of the matter is the extent to which countries support the court and its decisions.
Jansen says it is important the AU has at its core, human rights that protect the individual because as can be seen in the current Democratic Republic of the Congo situation, violations of these rights in one country inevitably have a "spill-over effect" in other countries.
Professor Christof Heyns, the director of the University of Pretoria's Centre for Human Rights said the court will have a "simulated session" in August this year.
Seventy-five law faculties from most countries in Africa will send representatives to Dar es Salaam, where they will participate in a simulated session of the African Court.
Heyns says teams of students from participating faculties will argue a hypothetical case concerning HIV/Aids before a panel of judges, who will include prominent African human rights lawyers. – Sapa.
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