By Didas Gasana
A dozen asked what Victoire Ingabire Vs Rwanda judgement by the African Court on Human and People’s Rights (ACHPR) literally means in contemporary justice. I will try to summarise. Few neither understood the difference between African commission on human and people’s rights and African court on human and peoples’ rights.
The judgement is binding but voluntary. You may find this statement confusing or oxymoronic but that is the fact. ACHPR, established by the Protocol to the African Charter on Human and Peoples’ Rights (“the Charter”), was adopted by Member States of the then Organization of African Unity in Ouagadougou, Burkina Faso in June 1998. The Protocol entered into force in January 2004, after ratification by 15 Member States.
Who has Jurisdiction? Article 3 of the Protocol extends jurisdiction to “all cases and disputes submitted to it concerning the interpretation and application of the Charter”, the Protocol and other human rights instruments that states have ratified. In addition, Article 4 gives the Court jurisdiction to issue advisory opinions on “any legal matter relating to the Charter or other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.”
For a case to be admissible under art 56 of the African Charter, the Court must consider a number of factors when deciding upon the admissibility of a case. This includes determining whether an applicant has submitted the communication within a reasonable time after the alleged violation/s, and whether domestic remedies have been exhausted, except in cases where procedures would unduly prolong a case. The Court is permitted to seek an opinion from the African Commission when deciding on the admissibility of direct communications submitted by individuals and NGOs.
Applications to the Court may be made by the African Commission or other African intergovernmental organizations, by States who have lodged (or against who has been lodged) a complaint at the Commission, and by States whose citizen is a victim of a human rights violation. Other states who are party to the Court’s Protocol and have an interest in a case may be permitted by the Court to join the proceedings.
In addition, applications may also be lodged directly by individuals and by NGOs with Observer Status before the African Commission, however only against those states who have made a declaration accepting the competence of the Court to receive applications from these entities
If the Court finds the rights of an applicant have been violated, it can order remedial measures such as compensation or reparations. Article 27 of the Protocol also allows the Court to order provisional measures, if a case is of “extreme gravity and urgency, and when necessary to avoid irreparable harm.”
Member States subject to the Court’s jurisdiction must comply with judgments in any case to which they are parties, within the time given by the Court. States are also responsible for guaranteeing execution of the Court’s judgments. If a State fails to comply, this failure is noted in the Court’s report to the Assembly, as required under Article 31 of the Protocol.
What this practically means is that, in Ingabire’s case, her right to fair trial and limitations on her rights to free expression are all at the whims of the government of Rwanda to comply with. Unlike the European Court of Human Rights or Inter-American Court of Human Rights, the ACHPR is literally toothless to effect meaningful adherence to its judgement.
However, this is not the end of the story.
What Ingabire’s judgement literally means is that no Rwandan Court shall ever convict a person for questioning the veracity of Rwanda’s history; using draconian genocidal legislations that are intended to muzzle free speech.
Secondly, this judgement convicted president Kagame more than it exonerated Ingabire. Like I said years ago, it was never Ingabire Victoire on trial but rather President Paul Kagame.
Thirdly, at an international level, there is now a judgement that effectively puts into question Rwanda’s commitment to rule of law and fair trial. Lest we forget, the present development paradigm of Sustainable Development Goals is hinged on the principle of law.
This judgement, as a matter of certainty, has far bearing consequences than meets the eye. In other words, more illustrious people than I must begin asking very hard questions to their governments. Hard ones; all hinging on the principle of rule on which SDGs are hinged. Some people succeeded in convincing the EU to cut its funding to Turkey next fiscal year. Same may happen ton Cambodja. Why not to Rwanda? It’s all about all of you raising your voices against injustice.
Lastly, Ingabire Vs Rwanda’s judgement has exposed the myth that is Rwanda’s judiciary. As a matter of fact, not so few who have read this judgement and who have always propagated that Rwanda’s judiciary is functioning, are now mourning the death of what otherwise is supposed to be a third pillar of a government.
Let me put it clear that she is one of not more than 3 people I informed I am leaving Rwanda in 2010. Her words to me then are a subject of its own.