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When a regional integration body’s tribunal extends its jurisdiction into human rights, and issues rulings inconvenient to a government, what happens then? On April 9, an Annual Meeting panel chaired by Prof. Abdulwahab Egbewole explored the different experiences of the ECOWAS Community Court of Justice (ECOWAS Court), the East African Court of Justice (EACJ) and the Tribunal of the Southern African Development Community (SADC Tribunal) in the wake of human rights rulings by these courts.
Prof. Laurence Helfer presented a paper on these three courts, co-authored with Prof. Karen Alter and Prof. James Thuo Gathii on Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences. Each court was modeled on the ECJ and associated with a regional integration project, and has made its mark in human rights, but rulings that embarrassed governments have led to widely differing results.
Prof. Helfer suggested that the roles of the sub-regional secretariats and civil society groups were a key factor in explaining the different outcomes: did the secretariat defend community interests, was the bar cohesive, did it work with the secretariat to block the backlash? In litigation, much depended on how thorough advocates were in citing human rights norms to tribunals; courts depend on that.
Ayodeji Perrin reviewed the literature on regional tribunals and their human rights jurisprudence. He suggested that while some argue that human rights norms are created in one place and diffused throughout the world, African tribunals are now applying African norms of human rights, such as those in the African Charter on Human and People’s Rights. He urged tribunals to strengthen human rights by providing better-reasoned decisions. Azubike Onuora-Oguno then discussed how supranational judicial bodies have been used to realize economic, social and cultural rights (ESCR) in Nigeria. ESCR are in most African constitutions, but national courts treat them as nonjusticiable. The ECOWAS Court has provided an avenue for ESCR by taking individual cases without requiring exhaustion of local remedies. In a case brought by the civil society organization SERAP against Nigeria, the Court found that the right to education is guaranteed by the African Charter and is justiciable before the ECOWAS Court. SERAP separately challenged the Nigerian government and seven oil producers for violations of the right to health and other ESCR due to failure to enforce anti-pollution laws in the Niger Delta. The Court recognized these rights based on the African Charter, but found it had no jurisdiction over the oil companies. Onuora-Oguno praised the Court’s actions, but criticized its reluctance to make damage awards which would have provided a real remedy.
A lively discussion further explored the cases and institutions discussed, and the challenges of strengthening human rights in Africa.
Amy Porges is Principal in her own international trade law firm. She also chairs the International Trade Committee of the American Branch of the International Law Association (ABILA) and teaches international trade law at the Johns Hopkins School of Advanced International Studies.