THE ROLE OF NATIONAL COURTS AND REGIONAL COURTS IN PROTECTING HUMAN RIGHTS AND DEVELOPING HUMAN RIGHTS JURISPRUDENCE

PAPER FOR PRESENTATION BY

Hon. Justice Harold R. Nsekela

Justice of Appeal, Court of Appeal, Tanzania

and

President

East African Court of Justice

A Paper for Presentation during the EAMJA Annual Conference and General Meeting, 17th -22nd May 2010, at NgurdotoMountain Lodge,Arusha, Tanzania

1. Introduction

Let me start my presentation by expressing my biggest pleasure to be given today this opportunity to address this august audience on the topic “The Role of the National Courts and Regional Courts in Protecting Human Rights and Developing Human Rights Jurisprudence”.

Much as I belong to both a national court and to a regional court, I do not consider myself as the most learned person on the topic. This is why my presentation is just intended to provoke a constructive discussion on how better our respective jurisdictions could serve to preserve and protect human rights in our countries and in our region as a whole.

The role of the courts in protecting human rights and in developing human rights jurisprudence, being at the regional or at the national levels is undisputable. At the national level, this role flows from the justification of the theory of separation of powers in a democratic society. In a constitutional democracy, the doctrine of separation of powers permits dialogue between the threebranches of government (the Legislature, Judiciary and Executive), in order to achieve the goals set by the authors of the Constitution.[1] The courts ensure that the executive and the legislature are performing their duties in conformity with the Constitution. Most of the modern constitutions enshrined the bills of rights that consist of proclamations of the individual rights and freedoms. Courts are established as forums to defend the people against the oppressive and unjust laws and practices, against laws and practices that are inconsistent with or in violation of the rights enshrined in the Constitution.

At the regional level, things are not different at all. Regional courts are established with a general mandate to ensure adherence to the rule of law by the states parties to the respective treaties establishing those courts.[2]Wondering whether or not regional or national courts play any role in the protection of human rights is nothing more than asking whether human rights are justiciable before those courts and whether the courts are sensitive to them. In the following lines, I shall look into the way our national courts and regional courts play this crucial role.

2. The role of the national courts

As I mentioned above, our constitutions have got a very important part dedicated to the Bill of Rights. The rights enshrined therein are part and parcel of the constitution and any democratic society ought to respect them. Our constitutions permit any person whose human right or freedom has allegedly been infringed or is threatened, to apply to a competent court for redress.Quite often, the courts’ human rights protective role is exercised through judicial review, and particularly constitutional review. Thus the question as to whether these rights are justiciable before the national courts does not arise anymore. What has been so far been the practice before our courts?

In Tanzania, the main means by which human rights abuses may be legally vindicated by victims is through the High Court.[3] The High Court has played a significant proactive role in protecting human rights even when the Government was taking too long to provide for procedure for enforcement of human rights as enshrined in the Constitution.[4] This bold decision of the High Court can be found in the Case of Chumchua Marwa v. Officer In Charge of Musoma Prison and the Attorney General[5]where it was held that the Bill of Rights could be enforced even when the rules and procedure were yet to be enacted by the government. This position was subsequently taken by the Court of Appeal in the case of Daudi Pete v. The United Republic of Tanzania.[6]The Court of Appeal said:

“… We also concur that until Parliament legislates under para (4) the enforcement of the basic rights, freedoms and duties may be effected under the procedure and practice that is available in the High Court in the exercise of its original jurisdiction, …”[7]

After the enactment of the Basic Rights and Duties Enforcement Act 1994[8] , Courts in Tanzania have maintained the bold spirit[9] and continued to actively protect human rights in various areas including, right to participate in political affairs (private candidate).[10]In the interest of time, I will not go into details

In October 2008, the Court of Appeal of Tanzania disposed of a case concerning the eviction of about 135 villagers from their land in the Serengeti District[11]. The Tanzania Commission of Human Rights and Good Governance (CHRGG) had investigated the case and come to the conclusion that the government had violated the rights of the complainants and that the latter must be resettled at their native land. It went on to recommend that the Government pay them more than Tshs. 800 millions of compensation. The complainant took the recommendation to the Government for enforcement but the Government, through its Attorney General responded to the Chairman of the Commission that the Government had conducted its own investigation and found out that there was no human rights violation committed at NyamumaVillage. The Commission, pursuant to Section 28 (3) of the Tanzania Commission of Human Rights and Good Governance Act recommended the claimants to bring an action before the High Court for resettlement and compensation. The High Court held that it lacked jurisdiction to enforce the recommendations made by the Commission. The complainants therefore appealed to the Court of Appeal which the highest court of land. The Court of Appeal ruled that the High Court erred in not considering the matter on the merit and ordered that the matter be referred back to the High Court before another judge for consideration on the merit. Implicitly, the Court of Appeal acknowledged that once the Commission has investigated and made a decision, this should be enforced by the Government. Otherwise, the complainant has the right to go to the High Court to seek enforcement of that decision.

Clearly here, the role of the Court of Appeal has been instrumental in ensuring that the right to land of the Nyamoma villagers is respected. This is just an example of the Court to which I belong and I am sure similar cases can be found in your various jurisdictions.

Indeed, judicial activism is a very important tenet in the protection of human rights by the Court. Invariably judicial activism invites some direct conflict between the judiciary and executive, or even the legislature. The main problem involved is always the complex choice bound to be made between what are political questions, exclusively reserved for the other branches of state, and the legal matters for the attention of the Court, whatever consequences they may have.[12] As you may find from the foregoing discussion, these have already received the attention of Tanzanian courts.

3. The role of the regional courts

While our national constitutions have got a Bill of Rights directly enforceable before our national courts, the treaties establishing the regional courts do not necessarily have such a proclamation of rights. To my knowledge, only the ECOWAS Community Court of Justice has been expressly given a human rights jurisdiction.This is why I will not discuss its potential to contribute to the protection of human rights as its case law comprises of many human rights cases.[13]Does this mean that other regional courts are completely incompetent to entertain human rights cases?

3.1 East African Court of Justice (EACJ)

The Treaty for the Establishment of the East African Community (EAC) and the Treaty for the Establishment of the Southern African Development Community (SADC) share one common feature. They do not give an express human rights jurisdiction to the judicial bodies that they create. The reading of Article 27 (2) of the EAC Treaty would actually suggest that the East African Court of Justice is not, at least for the time being, not allowed to hear human rights cases. It provides that:

The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.

Clearly, read alone, this provision could be misleading. However, the principles of the Community provide an avenue for human rights litigation before the EACJ.

Among other fundamental principles of the EAC Treaty, there is respect for the rule of law and the promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.[14] The EAC Treaty further directs the Partner States to undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.[15]

In James Katabazi and 21 Others v Secretary General of the East African Community and the Attorney General of Uganda, the EACJ has come up with what has been described by some scholars as a derivative human rights competence.[16]The Court held that even though it ‘would not assume jurisdiction on human rights disputes’, it also would not abdicate its jurisdiction of interpretation under Article 27 (1) merely because the reference includes allegations of human rights violations.[17] The Court went ahead to interpret and apply articles 6 (d), 7 (2) and 8(1)(c) of the treaty and found that there was a violation of the principle of the rule of law and consequently a violation of the EAC Treaty.[18]

In the case East Africa Law Society and Others v The Attorney General of Kenya and Others, although the main thrusts of the application were that the Treaty amendments were done without compliance with procedural regulations in article 150 of the EAC Treaty and that the amendments were done in bad faith, issues of the right to participation and independence of the judiciary emerged. With regard to the right of the East African people to participate in the process of amendment of the EAC Treaty, the Court held that:

“It is common knowledge that the private sector and civil society participated in the negotiations that led to the conclusion of the Treaty among the Partner States and, as we have just observed, that they continue to participate in the making of Protocols thereto. Furthermore, as we noted earlier in this judgment, Article 30 entrenches the people’s right to participate in protecting the integrity of the Treaty. We think that construing the Treaty as if it permits sporadic amendments at the whims of officials without any form of consultation with stakeholders would be a recipe for regression to the situation lamented in the preamble of “lack of strong participation of the private sector and civil society” that led to the collapse of the previous Community.”[19]

The Court went on to conclude that:

“failure to carry out consultation outside the Summit, Council and the Secretariat was inconsistent with a principle of the Treaty and therefore constituted an infringement of the Treaty (…)”.[20]

From these two examples above-mentioned, one can say that the EACJ has been playing some sort of role –though arguably small- in the protection of human rights in East Africa. This role is expected to be more substantial after the Court’s jurisdiction has been extended to human rights. The Draft Protocol to this effect is still under negotiations.

3.2 Southern African Development Community Tribunal (SADC Tribunal)

Article 14 of the SADC Tribunal Protocol provides that the SADC Treaty shall constitute the basis of the Tribunal’s jurisdiction. The Tribunal is competent to exercise jurisdiction over matters relating to the interpretation and application of the Treaty as well as interpretation, application or validity of Protocols and other legal instruments of SADC and of acts of the Community’s institutions.[21] Like the EACJ, the SADC Tribunal does not have a clear human rights jurisdiction.

A proposal to include human rights in the mandate ofthe Tribunal was considered and rejected.[22]However, the Tribunal is authorised to ‘develop its own jurisprudence’, giving due consideration to ‘applicable treaties, general principles and rules of public international law and any rules and principles of the law of States’. Such ‘developed Community jurisprudence’ constitutes ‘applicable law’ along with the Treaty, Protocols and other instruments of SADC.[23] On top of this, Article 4 (c) of the SADC Treaty identifies human rights, democracy and the rule of law as fundamental principles of SADC.

With regard to its jurisdiction in the area of human rights, the SADC Tribunal In Mike Campbell (Pvt) Ltd v Republic of Zimbabwe, held that:

In deciding this issue, the Tribunal first referred to Article 21 (b) which, inaddition to enjoining the Tribunal to develop its own jurisprudence, alsoinstructs the Tribunal to do so “having regard to applicable treaties,general principles and rules of public international law” which are sourcesof law for the Tribunal. That settles the question whether the Tribunal canlook elsewhere to find answers where it appears that the Treaty is silent.[24]

The Tribunal went on and added that:

In any event, we do not consider that there should first be a Protocol on human rights in order to give effect to the principles set out in the Treaty, in the light of the express provision of Article 4 (c) of the Treaty which states as follows:

“SADC and MemberStates are required to act in accordance with

the following principles –

(a) ……

(b) ……

(c) human rights, democracy and the rule of law”.[25]

The Tribunal concluded that it had jurisdiction in respect of any disputeconcerning human rights, democracy and the rule of law, which are the very issues raised in that particular application.

The issue of jurisdiction resolved, the Tribunal considered the alleged human violations which included the denial of access to justice and racial discrimination, and found the Government of Zimbabwe in contravention with the rule of law and consequently held it in breach of Article 4(c) of the SADC Treaty. In arriving to this conclusion, the Tribunal applied various international human rights instruments including the United Nations Charter, the Universal Declaration of Human Rights, the International Covenant of Civil and political Rights, the International Covenant of Social Economic and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the African Charter on Human and peoples’ Rights.

4. Implementation of courts’ decisions

If the decisions of the courts were systematically disregarded, then most of us would be useless. We would not be talking about protecting human rights in our region. The implementation of national courts’ decisions although not always automatic is much easier than the implementation of regional courts’ decisions.

If I may refer you back to the SADC Tribunal case of Mike Campbell (Pvt) Ltd and 78 others v The Republic of Zimbabwe, the applicants in the matter had to come back to the Tribunal to file an application, ‘seeking in substance, a declaration to the effect that the respondent [was] in breach, and contempt, of the decision of the Tribunal […]’.[26] The decision of the Tribunal had directed the Republic of Zimbabwe:

To take all necessary measures, through its agents, to protect the possession, occupation and ownership of the land of the applicants… and to take all appropriate measures to ensure that no action is taken… directly or indirectly whether by its agents or others, to evict from, or interfere with, the peaceful residence on, and of these farms, by the applicants.[27]

This was after the Government of Zimbabwe had refused to comply with the Tribunal’s decision. Among other convincing material adduced by the applicants to prove this fact are the following:

-Deputy Attorney-General letter stating that “the policy position taken by the Government to the Judgment handed down by the SADC Tribunal […] is that all the prosecutions of defaulting farmers under the provisions of the Gazetted Lands (Consequential Provisions) Act should now be resumed”;[28]

-The speech delivered […] by the Deputy Chief Justice […] at the opening of the 2009 legal year in the course of which he stated, among other things, that the Tribunal lacked jurisdiction to hear and determine the Campbell case;[29]

-President Robert Mugabe’s qualification of the Tribunal’s decision as “nonsense” in the course of his birthday celebrations.[30]