20 NOVEMBER 2023,
ALGIERS, ALGERIA.
- His Excellency Nadir Larbaoui, Prime Minister, representing His Excellency Abdelmadjid Tebboune, President of the People’s Democratic Republic of Algeria,
- Hon. Remy Ngoy Lumbu, Chairperson of the African Commission on Human and Peoples’ Rights,
- Hon. Anne Musiwa, Vice Chairperson of the African Committee of Experts on the Rights and Welfare of the Child,
- …
Assalaam Alaikum Warahmatullah Wabarakatuh.
Exactly two weeks ago, on 6 November 2023, my colleagues and I had the singular privilege of attending the Solemn Opening of the 2023 – 2024 of the Algerian Judicial Year. We were captivated not only by the solemnity of the occasion, but more importantly by what H. E. Abdelmadjid Tebboune, President of the People’s Democratic Republic of Algeria said. Your Excellency, said, and I quote ‘I have been committed to upholding this annual tradition to emphasize the nobility of the message carried by the judicial system and the heavy responsibility placed on the shoulders of the judges to protect individuals, preserve their rights and freedoms’.
Excellencies, dear colleagues,
I was particularly elated because His Excellency, the President has recognized the heavy responsibility placed on the shoulders of judges to ensure a just and equitable society in which the rights and freedoms of individuals can flourish. This demonstrates his support to the judiciary, and the decision to send His Excellency the Prime Minister to grace the opening of the 6th African Union Judicial Dialogue is a manifestation of his and his government’s commitment and recognition of the work of the judiciary in nation building. We thank His Excellency the President, through you, Excellency, the Prime Minister, for this mark of support to judiciaries across the continent.
Excellency Prime Minister, on behalf of my colleagues at the African Court, on behalf of all participants at this Dialogue, and on my personal behalf, we also congratulate you on your appointment as Prime Minister and we wish you all the best in this new position.
This commitment does not come as a surprise because for the past few years that I have had the honour to attend the meetings of the policy organs of the African Union, on behalf of the African Court, Algeria has consistently advocated for strong and independent institutions, including the AU human rights organs.
Permit me at this juncture, to extend our sincere appreciation to the Ministers of Justice, Foreign Affairs and all the government authorities, for the wonderful hospitality and facilities placed at our disposal before and since we arrived in this beautiful country.
Excellencies, Dear colleagues
The African Union Judicial Dialogue is a biennial gathering of Chief Justices, Presidents of Constitutional and other superior courts, and heads of continental and sub-regional human rights courts and quasi-judicial bodies on the continent. This year we have invited Attorneys General, some of whom are Ministers of Justice in their countries, in view of the very important role they play in the administration of justice. The Judicial Dialogue has become the largest gathering of ‘la crème de la crème’ of judicial authorities on the continent. It seeks to promote cross-pollination of ideas, exchange best practices and experiences, and explore ways of fostering effective interaction of judicial officers at national, sub-regional and continental level, with the aim of enhancing the protection of human rights and the administration of justice as a whole.
Each Dialogue has a theme, and the theme for the 6th African Union Judicial Dialogue is “advancing human rights in Africa: challenges and opportunities for integrating regional and international human rights jurisprudence in domestic courts”.
Excellencies, dear colleagues,
This theme is not only relevant but very timely. This year marks the 60th Anniversary of the adoption of the Charter and eventual establishment of the Organisation of African Unity (OAU). The OAU Charter encapsulated the dream of the founders of the OAU of a united, strong and prosperous Africa, and that freedom, equality, justice, peace and dignity are essential for the achievement of this dream.
In fact, since the establishment of the OAU in 1963, a number of key initiatives have been adopted by our leaders to move us towards the realization of that dream, including but not limited to, the adoption of the Monrovia Strategy of 1979, the Lagos Plan of Action and Final Act of Lagos of 1980, Africa’s Priority Programme for Economic Recovery of 1986, the Abuja Treaty on the Establishment of an African Economic Community of 1991, the African Charter on Human and Peoples’ Rights and the United Nations New Agenda for the Development of Africa of 1991. The beginning of the 21st Century saw the introduction of the New Partnership for Africa’s Development (NEPAD). In 2013, half a century after the establishment of the OAU, at what was dubbed the Golden Jubilee Summit, our leaders adopted yet again another initiative, Africa Agenda 2063, as the basis for Africa’s long term socio-economic and integrative transformation.
The question I want to pose to all of us, especially to our political leaders is, why did all the previous initiatives not succeed or move Africa towards the socio-economic and political integration and development aspirations expressed in the OAU Charter in 1963? Beautifully crafted and with the best of intentions, some of these initiatives barely saw the light of day and disappeared. Where did things go wrong?
Excellencies, Distinguished participants
These are some of the questions we must ask ourselves if we are to move our continent forward. The theme of this year’s Judicial Dialogue therefore seeks to reposition the debate about the very reason, not only for the establishment of the African Court, but the entire African human rights system and the African Union architecture. And by the African human rights system, I mean the system of promotion and protection of human and peoples’ rights at national, sub-regional and continental level.
The lack of success of some past developmental initiatives on the continent has been attributed to among others, the lack of buy-in or awareness from the African people themselves. That is why in developing Agenda 2063, the AU made the deliberate effort to undertake consultations with all relevant stakeholders across the continent. The result of this consultation culminated in 7 key aspirations expressed by the African people of the Africa they want. These aspirations, which are not different from the ‘legitimate aspirations’ captured in the OAU Charter in 1963, include, “An Africa of good governance, democracy, respect for human rights, justice and the rule of law”, reflected under Aspiration 3 of Agenda 2063. It is envisaged under this aspiration that by 2063, in the Africa we want, Africa shall have a universal culture of good governance, democratic values, gender equality, respect for human rights, justice and the rule of law, with strong, independent and capable institutions and transformative leadership, where the continent’s population will enjoy affordable and timely access to independent courts and a judiciary that delivers justice without fear or favour. A very rosy picture, isn’t it? Is this feasible? I say yes, it is. Can we achieve this? I say yes, we can.
Excellencies, dear colleagues and friends,
But the Africa we want cannot be built on political integration alone. It requires all the various constituents of good governance to play their role. The judiciary is a very important driver in socio-economic and political integration and development. History teaches us that all stable economies and communities around the world are built on a strong foundation of the rule of law, justice and respect for human rights. It is therefore imperative that if Africa is to develop, if Africa is to prosper, if Africa is to unite, if Africa is to guarantee peace, and if truly we crave the AFRICA WE WANT, the judiciary must play its role, and our actions must be guided by justice, the rule of law and respect for human rights.
Dear colleagues, for the judiciary to effectively play its role and contribute to the Africa we want, there must be cooperation of the judiciary at all levels; national, sub-regional and continental. We must work with each other and complement each other. Just as Member States have the primary responsibility to promote and protect human and peoples’ rights, national judiciaries are at the first port of call for the protection of human rights. Supra-national Courts such as the African Court, are courts of last resort, to be utilized only after judicial remedies at the domestic level have been duly exhausted. Supra-national courts are therefore established to complement rather than to replace domestic Courts. We must therefore work together to strengthen this complementarity if we are to be effective in the protection of human rights and the administration of justice as a whole.
Excellencies, dear colleagues
One of the reasons why the African Court was established was to help States comply with their international human rights obligations by setting human rights standards that should be followed across the continent. The Court does this through the interpretation and application of the African Charter on Human and Peoples’ Rights (the Charter) and other international human rights instruments ratified by States, in cases filed before the Court. The Court, like other human rights treaty bodies, thus develops human rights jurisprudence. By so doing, the Court contributes to the organic development of a homogenous African Union law or African human rights system at national, sub-regional and continental level.
It should therefore be the case that human rights issues settled by the Court through its judgments should be of relevance to all countries other than the Respondent State(s) that were before the Court. Given that the African Court is a supra-national Court, the expectation is that its decisions would resonate beyond the Respondent States, and prompt other countries to amend their laws and policies to conform to the established human rights standard. Judgments of the African Court should be referenced at the domestic level by Member States of the African Union, and these Member States should be able to initiate legal reforms, to make sure their laws are consistent with the Charter, and in accordance with the decisions of the Court.
It is gratifying to hear that Judges in Cape Verde, Kenya, Lesotho, and South Africa have cited judgments of the African Court in their decisions. We would like to see more of these references from our colleagues at the national level.
Excellencies, dear colleagues
To build the Africa we want, we must therefore think of the creation of an African Union law or an African human rights law in which the judiciary at national, sub-regional and continental level has the same understanding, interpretation and application on all human rights issues. It will be chaotic and confusing to our people, and even to our leaders, if a national Court’s interpretation of a particular human rights provision is different from the interpretation given by a sub-regional or continental Court on the same right.
There is therefore the need to work together to build a framework for cooperation and exchange of information, experiences, and more importantly, build our capacities in these areas. To this end, during the Third African Union Judicial Dialogue held in Arusha, Tanzania in 2017, we had resolved to develop a human rights online course for national judiciaries. We will be briefed on the progress made on this initiative. While waiting for the roll out of the human rights course, it is important to indicate that we can explore other avenues to enhance our capacities. With the availability of technology, we can engage in virtual exchanges on a regular basis, we can also explore the possibility of judicial exchanges, where some of the judges or even staff from domestic courts can spend some time at the seat of the African Court and vice versa; national Courts can organize trainings or seminars at the domestic level and invite Judges of regional and continental courts to participate and exchange views. Let me say that the African Court is willing and available to work with national Courts on all matter’s justice.
Excellencies, dear colleagues,
A State’s international human rights commitment/obligation is not limited to ratification and domestication of a human rights instrument. It also includes obligations to comply with decisions taken by the human rights treaty body established by those human rights instruments.
For Member States to effectively comply with decisions of regional and international Courts, there must be a framework in place to ensure domestic Courts play their role in the process. Under the ECOWAS Treaty and the EAC Treaty establishing the ECOWAS Court of Justice and the East African Court of Justice, respectively, the decisions of these Courts are directly implemented at domestic level. I am sure our colleagues from these Courts will share their experiences in this regard at the appropriate time. It is thus possible to integrate continental human rights jurisprudence at domestic level through direct implementation of decisions of continental human rights courts.
Excellencies, dear colleagues,
Integrating decisions of regional and international human rights courts by domestic courts can be a complex and challenging process. Some of these challenges include, sovereignty concerns, difference in the operations of legal systems, resistance from domestic courts, lack of awareness, lack of a proper mechanism at the domestic level, etc.
Judges at the domestic level must understand the international human rights obligations the State has undertaken and be able to assist in ensuring it fulfils its obligations at the domestic level. This may require that Judges utilize human rights instruments ratified by the State or judgments of international Courts in their decisions. Lawyers at the domestic level must be able to invoke judgments of international Courts before Judges at the domestic level. Strengthening the justice and human rights protection system is thus a collective responsibility and we all have a role to play. Similarly, the African Union human rights organs may look into decisions of national courts to assess whether there are trends indicative of development of a common position by member states, particularly in emerging areas of law. For example, in Ghati Mwita v Tanzania, the African Court considered the jurisprudential developments in African national judiciaries to make its determination on the issue of mandatory death penalty.
Excellencies, dear colleagues
Apart from the general benefit of enhancing the protection of human rights on the continent, integrating regional and international human rights jurisprudence into domestic courts and vice versa, offers several other rewards, including; providing legal clarity to complex human rights issues that may help judges and lawyers to better understand the nuances of human rights and how it should be applied; boost cooperation as it signals a commitment to upholding human rights and adhering to global norms at all levels; strengthening the Rule of Law; and ensuring the progressive development of human rights in Africa.
African countries therefore need to create legal mechanisms for the integration of international and regional decisions into domestic legal systems. This may involve legislative reforms, judicial training, and fostering collaboration between domestic and international judicial authorities. Member States need to recognize the very important role of the judiciary in the realization of the objectives of the African Union and Agenda 2063, and in this regard, put in place concrete measures to integrate and monitor implementation of decisions from international bodies. These actions may include, but not limited to, appointment of focal points as what Algeria and nine other African countries did, making sure decisions are directly implementable at the domestic level, need for very wide dissemination of judgments of international human rights bodies, and training for lawyers and judges on the possibility of incorporating such judgments before domestic systems. In my view, there is need to provide technical assistance to States that may be willing but not able to undertake the necessary reforms to be able to implement or incorporate Court decisions. This technical assistance can be sourced from amongst ourselves by sharing expertise, experiences and information.
Excellencies, dear colleagues
As I close, let me reiterate the commitment of the Court to work with Member States, National judiciaries and other relevant stakeholders to put the administration of justice and respect for human rights at the center of our politico-developmental initiatives in Africa. Through these Judicial Dialogues, African judiciaries from national, through sub-regional to continental level are signaling their strong desire for better collaboration and synergy to effectively contribute to the objectives of the African Union and Agenda 2063 – so as to achieve the Africa we want.
God bless Africa, and God bless the African Union.
Thank you for your attention.