News & Analysis
Effectiveness of African Court of Justice and Human Rights: Prospects and Challenges
By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
From the colonial times, the African continent has been awash with cases of human rights violations, by both governments and private persons. The human rights violations manifested in several forms including slavery, (neo)- colonialism, apartheid, and multidimensional (extreme) poverty. The violations were perpetrated during colonialism where Africa’s human and material resources were ‘largely exploited for the benefit of outside powers’. However, even after independence, the African Independent Governments continued with the same violations as the leaders sought to unjustly enrich themselves to the detriment of the masses. Indeed, this state of affairs was one of the concerns that led to the setting up of the Court. The African court was meant to promote the rule of law and end impunity for rights violators.
For long, the fight for democracy and respect for human rights was mostly left to a handful of civil society activists in most countries across the Continent. The question of independence of judicial systems and the rampant impunity witnessed in many African states also informed the decision to set up the African Court as an enforcement arm of the African Union. It has also been argued that ‘many African judges are unwilling or unable to rule against their governments, because they are dependent on the ruling parties for their positions, lack the authority to enforce their rulings or, in some cases, may face arrest or assault for challenging government actions. Indeed, it has been argued that one of the reasons the negotiations for the setting up of the African Court took longer than anticipated was the fact that ‘there was not yet sufficient political will among the African states to submit to the jurisdiction of a court’.
Since independence, several human rights treaties have been adopted in Africa to strengthen the protection of rights of vulnerable groups including refugees, children, women, youth, internally displaced persons, and older persons. One of the mandates of the African Court is the interpretation and the application of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relating to human rights, ratified by the States Parties concerned.
Africa has suffered under racial discrimination, slavery as perpetrated by the colonial masters before and after independence. While some states’ courts such as South African courts have made considerable steps in strengthening the rule of law and respect for human rights, other countries have done little or nothing towards achieving the same, hence the need to strengthen the African court’s jurisdiction in protecting the human rights of African people. However, the African Court faces a number of challenges as discussed in this paper that must first be addressed in order to enhance its efficiency in discharging its mandate in protection of human rights.
One of the main challenges facing the African Court is the challenge of Access. Notably, the Protocol allows direct access to the Court by individuals or indirectly through a referral of a case to the Court by the African Commission. The concept of ‘access’ may be understood as the competence to approach a human rights system in order to: obtain a remedy (in a contentious case); be represented as victim (personally or through a legal representative) before the Court (in contentious proceedings); solicit an advisory opinion, and contribute to Court proceedings as amicus curiae.
With some African governments feeling that individuals should not have direct access to the Court, some state parties have invoked their right to withdraw the declaration allowing individuals to have direct access to the Court. This is because such declarations are optional and state parties may opt out any time, provided that the effect of such withdrawal takes comes into force a year after. This is what happened in the case of Rwanda in 2016 when it withdrew its declaration to give access to African Court for Rwandan individuals and Non-Governmental Organisations (NGOs), which it had made in 2013. It is reported that the case of Ingabire Victoire Umuhoza v. Republic of Rwanda triggered the decision. In this case, a claim had been made against Rwanda by a leading opposition politician, Victoire Ingabire, who had alleged her imprisonment for genocide denial was unfair and politically motivated.
Rwanda’s decision was later followed by Tanzania which withdrew its resolution for direct access in 2019. Tanzania’s Minister for Foreign Affairs and East African Cooperation signed the notice of withdrawal on 14 November 2019, and the African Union Commission received it on 21 November 2019. Some commentators have attributed this decision to the Court’s many judgments against Tanzania over the years. Notably, Tanzania remains a member of the African Court. The decision by member states to lock out individuals and the civil society from direct access to the court threatens the courts mandate to protect human rights. This is because of the African Court’s 30 member states, it is reported that only 10 (Benin, Burkina Faso, Côte d’Ivoire, Gambia, Ghana, Malawi, Mali, Rwanda, Tanzania, and Tunisia) have ever made the declaration under Article 34(6) of the African Court’s Protocol accepting the competence of the Court to receive cases from individuals and NGOs.
With the withdrawal of Rwanda and Tanzania, only eight countries have so far afforded their individual citizens and NGOs this possibility. The adverse effect of the states’ decision not to make such declarations on the effectiveness of the Court is evidenced by the fact that since the Court’s creation in 2006, this direct access has proven to be the Court’s main pipeline of cases, giving the Court the opportunity to help victims of human rights violations who exhausted local remedies and went to the regional level to seek justice. Statistics as of September 2019 show that of the 238 applications it has received, individuals made 223 applications, and NGOs made 12 applications.
As the African Court on Human and Peoples’ Rights is meant to complement the role of the African Commission on Human and Peoples’ Rights in protecting fundamental rights across the continent, with states denying their citizens and NGOs direct access to the Court and the Commission only having referred about three cases to the Court, the effectiveness of the Court is greatly reduced. The fact that the Commission does not have prosecutorial powers as the Court makes the role of protecting fundamental rights in the continent even weaker. It also demonstrates the African governments’ lack of political will to support the work of the Court and the Commission and thus raises fundamental questions regarding their willingness and commitment to promote the rule of law and protection of human rights. Their membership to the Court’s jurisdiction (such as that of Rwanda and Tanzania) is thus seen as a mere formality with no intention of allowing it to exercise its authority in their territories.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., “African Court of Justice and Human Rights: Emerging Jurisprudence,” Available at: http://kmco.co.ke/wp-content/uploads/2020/06/African-Court-on-Human-and-Peoples-Rights-Emerging-Jurisprudence-Kariuki-Muigua-June-2020.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021.
African Court on Human and Peoples’ Rights, “African Court on Human and Peoples’ Rights,” https://en.african-court.org/ (accessed 09 December 2021).
African Union, Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008.
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African Union, African Charter on Human and Peoples’ Rights (Banjul Charter), adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986.
Ally Rajabu and Others v. United Republic of Tanzania, Available at: https://www.african-court.org/en/images/Cases/Judgment/Judgment_Summary_Application_007-2015-Ally_Rajabu_and_ Others_v_Tanzania_Final.pdf (accessed 09 December 2021).
De Silva, N., ‘Individual and NGO Access to the African Court on Human and Peoples’ Rights: The Latest Blow from Tanzania’ (EJIL: Talk!, 16 December 2019) https://www.ejiltalk.org/individual-and-ngo-access-to-the-african-court-on-human-and-peoples-rights-the-latest-blow-from-tanzania/ (accessed 09 December 2021).
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Wachira, G.M., “African Court on Human and Peoples’ Rights: Ten years on and still no justice,” London: Minority Rights Group International, 2008, Available: https://minorityrights.org/wp-content/uploads/old-site-downloads/download-540-African-Court-on-Human-and-Peoples-Rights-Ten-years-on-and-still-no-justice.pdf (accessed 09 December 2021).
Viljoen, F., “Understanding and overcoming challenges in accessing the African Court on Human and Peoples’ Rights.” (2018), p. 2. Available at: https://repository.up.ac.za/bitstream/handle/2263/ 65342/ Viljoen_Understanding_2018.pdf?sequence=1&isAllowed (accessed 09 December 2021).
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News & Analysis
The Roles of the Three Parts of the Permanent Court of Arbitration
News & Analysis
Brief History of the Permanent Court of Arbitration (PCA)
By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.
The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.
The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.
The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”
In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.
As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.
The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.
PCA Website: https://pca-cpa.org/en/about/introduction/history/ (accessed on 25th May 2023).
News & Analysis
Former KCB Company Secretary Sues Over Unlawful Dismissal
Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.
Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.
In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.
He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.
“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.
Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.
Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.
He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.
“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.
Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.
He wants further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.
Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.
He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.
He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.
He adds that at that point his roles were given to Okumu for reasons that were not related to work demands. He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.
Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.
“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.
He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.
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