Rwanda explicitly rejected the jurisdiction of the International Criminal Court (ICC); it is member of International Court of Justice(ICJ) but it raised incompetence ratione materiae of this court in a contention with DRC. Recently, the political opponent Mrs. INGABIRE MUHOZA Victoire who was sentenced to 15 years of imprisonment by Rwandan courts and was later released thanks to presidential mercy seized the African court of human and people’s rights(AfCHPR) and caught off guard rwanda resorted to a withdrawal from the Court’s Jurisdiction over Individuals and NGOs.Besides, before the East African Court of Justice(EACJ),Plaxeda Rugumba ,sister of Lt Colonel Severine RUGIGANA Ngoga jailed in Rwandan military prison introduced an action in favor of the latter for violation of his fundamental rights by Rwandan authorities and the ruling resulted in the loss of the case by Rwandan government representatives.
The legal challenges which interests in this study is the extent to which decisions of international and regional courts may impact on the domestic level in terms of their effective enforcement especially as the court renders decisions implying recommendations to be implemented by the losing party. Besides, if the losing party does not comply with the enforceable rulings, there is a worry about the importance of creating such courts where wining parties resort to waste their time.
The present article succinctly sets out the cases; conducts a critical analysis of the prevailing situation and suggests mechanisms for eventual reconsideration of the functioning of those courts vi-a-vis reluctant countries.
I.CASES WHERE RWANDA WAS INVOLVED
1)ICJ , Democratic Republic Of The Congo V. Rwanda
Present proceedings confined to the questions of the jurisdiction of the Court and the admissibility of the DRC’s Application. On 28 May 2002 the Government of the Democratic Republic of the Congo (hereinafter “the DRC”) filed in the Registry of the Court an Application instituting proceedings against the Republic of Rwanda (hereinafter “Rwanda”) in respect of a dispute concerning “massive, serious and flagrant violations of human rights and of international humanitarian law” alleged to have been committed “in breach of the ‘International Bill of Human Rights’, other relevant international instruments and mandatory resolutions of the United Nations Security Council”; in that Application the DRC stated that “[the] flagrant and serious violations [of human rights and of international humanitarian law]” of which it complained “result from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the Congo in flagrant breach of the sovereignty and territorial integrity of [the latter], as guaranteed by the Charters of the United Nations and the Organization of African Unity”.
In its Application the DRC made the following requests: “Accordingly, while reserving the right to supplement and amplify this claim in the course of the proceedings, the Democratic Republic of the Congo requests the Court to: Adjudge and declare that: (a) Rwanda has violated and is violating the United Nations Charter (Article 2, paragraphs 3 and 4) by violating the human rights which are the goal pursued by the United Nations through the maintenance of international peace and security, as well as Articles 3 and 4 of the Charter of the Organization of African Unity; (b) Rwanda has violated the International Bill of Human Rights, as well as the main instruments protecting human rights, including, inter alia, the Convention on the Elimination of Discrimination Against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, the Constitution of the WHO, the Constitution of Unesco; – 11 – (c) by shooting down a Boeing 727 owned by Congo Airlines on  October 1998 in Kindu, thereby causing the death of 40 civilians, Rwanda also violated the United Nations Charter, the Convention on International Civil Aviation of 7 December 1944 signed at Chicago, the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970 and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971; (d) by killing, massacring, raping, throat-cutting, and crucifying, Rwanda is guilty of genocide against more than 3,500,000 Congolese, including the victims of the recent massacres in the city of Kisangani, and has violated the sacred right to life provided for in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, the Convention on the Prevention and Punishment of the Crime of Genocide and other relevant international legal instruments. In consequence, and in accordance with the international legal obligations referred to above, to adjudge and declare that: (1) all Rwandan armed forces responsible for the aggression shall forthwith quit the territory of the Democratic Republic of the Congo, so as to enable the Congolese people to enjoy in full their rights to peace, to security, to their resources and to development; (2) Rwanda is under an obligation to procure the immediate, unconditional withdrawal of its armed and other forces from Congolese territory; (3) the Democratic Republic of the Congo is entitled to compensation from Rwanda for all acts of looting, destruction, massacre, removal of property and persons and other acts of wrongdoing imputable to Rwanda, in respect of which the Democratic Republic of the Congo reserves the right to establish a precise assessment of injury at a later date, in addition to restitution of the property taken. It also reserves the right in the course of the proceedings to claim other injury suffered by it and its people.”
In the written proceedings, the following submissions were presented by the Parties: On behalf of the Rwandan Government, in the Memorial: “Accordingly, Rwanda requests the Court to adjudge and declare that: The Court lacks jurisdiction to entertain the claims brought by the Democratic Republic of the Congo. In addition, the claims brought by the Democratic Republic of the Congo are inadmissible.” On behalf of the Government of the Democratic Republic of the Congo, – 12 – in the Counter-Memorial: “For these reasons, may it please the Court, To find that the objections to jurisdiction raised by Rwanda are unfounded; To find that the objections to admissibility raised by Rwanda are unfounded; And, consequently, to find that the Court has jurisdiction to entertain the case on the merits and that the Application of the Democratic Republic of the Congo is admissible as submitted; To decide to proceed with the case.”
At the hearings, the following submissions were presented by the Parties: On behalf of the Rwandan Government, at the hearing of 6 July 2005: “For the reasons given in our written preliminary objection and at the oral hearings, the Republic of Rwanda requests the Court to adjudge and declare that: 1. it lacks jurisdiction over the claims brought against the Republic of Rwanda by the Democratic Republic of the Congo; and 2. in the alternative, that the claims brought against the Republic of Rwanda by the Democratic Republic of the Congo are inadmissible.” On behalf of the Congolese Government, at the hearing of 8 July 2005: “May it please the Court, 1. to find that the objections to jurisdiction and admissibility raised by Rwanda are unfounded; 2. consequently, to find that the Court has jurisdiction to entertain the case on the merits and that the Application of the Democratic Republic of the Congo is admissible as submitted; 3. to decide to proceed with the case on the merits.”
. The Court notes first of all that at the present stage of the proceedings it cannot consider any matter relating to the merits of this dispute between the DRC and Rwanda. In accordance with the decision taken in its Order of 18 September 2002 (see paragraph 6 above), the Court is required to address only the questions of whether it is competent to hear the dispute and whether the DRC’s Application is admissible. * * * 15. In order to found the jurisdiction of the Court in this case, the DRC relies in its Application on a certain number of compromissory clauses in international conventions, namely: Article 22 of the Convention on Racial Discrimination; Article 29, paragraph 1, of the Convention on Discrimination Against Women; Article IX of the Genocide Convention; Article 75 of the WHO Constitution; Article XIV, paragraph 2, of the Unesco Constitution and Article 9 of the Convention on Privileges and Immunities; Article 30, paragraph 1, of the Convention against Torture; and Article 14, paragraph 1, of the Montreal Convention. It further contends that Article 66 of the Vienna Convention on the Law of Treaties establishes the jurisdiction of the Court to settle disputes arising from the violation of peremptory norms (jus cogens) in the area of human rights, as those norms are reflected in a number of international instruments (see paragraph 1 above). For its part Rwanda contends that none of these instruments cited by the DRC “or rules of customary international law can found the jurisdiction of the Court in the present case”. In the alternative, Rwanda argues that, even if one or more of the compromissory clauses invoked by the DRC were to be found by the Court to be titles giving it jurisdiction to entertain the Application, the latter would be “nevertheless inadmissible”.
The Court concludes from all of the foregoing considerations that it cannot accept any of the bases of jurisdiction put forward by the DRC in the present case. Since it has no jurisdiction to entertain the Application, the Court is not required to rule on its admissibility. While the Court has come to the conclusion that it cannot accept any of the grounds put forward by the DRC to establish its jurisdiction in the present case, and cannot therefore entertain the latter’s Application, it stresses that it has reached this conclusion solely in the context of the preliminary question of whether it has jurisdiction in this case ⎯ the issue to be determined at this stage of the proceedings. The Court is precluded by its Statute from taking any position on the merits of the claims made by the DRC. However, as the Court has stated on numerous previous occasions, there is a fundamental distinction between the question of the acceptance by States of the Court’s jurisdiction and the conformity of their acts with international law. Whether or not States have accepted the jurisdiction of the Court, they are required to fulfill their obligations under the United Nations Charter and the other rules of international law, including international humanitarian and human rights law, and they remain responsible for acts attributable to them which are contrary to international law.
On November 24, 2017, the African Court on Human and Peoples’ Rights (AfCHPR) held that Rwanda violated Victoire Ingabire Umuhoza’s right to freedom of opinion and expression, as well as her right to an adequate defense. Ingabire, a Hutu Rwandan national who lived abroad from 1993-2010, brought the case to the AfCHPR after she was arrested, tried, and convicted of terrorism and speech related crimes following her return to Rwanda in January 2010. . While abroad, Ingabire founded the political party Rassemblement Républicain pour la Démocratie au Rwanda (the Republican Rally for Democracy in Rwanda, RDR), an opposition party to the sitting government in Rwanda, the Rwandan Patriotic Front (RPF). RDR merged with two other opposition parties to create les Forces démocratiques Unifiées, the United Democratic Forces-Inkingi (FDU Inkingi), which was led by Ingabire.
Ingabire returned to Rwanda in January 2010 in order to register FDU Inkingi as a political party according to Rwandan law so that she could run in the upcoming national elections. See id. at para. 6. On her first day back in Rwanda, Ingabire gave a speech at the Genocide Memorial Centre in Kigali, where she spoke of problems with reconciliation and ethnic violence. See Amnesty International, Rwanda: Justice in Jeopardy: The First Instance Trial of Victoire Ingabire, On April 21, 2010, the State, which claimed Ingabire’s remarks minimize genocide, arrested Ingabire on charges of spreading the ideology of genocide, aiding and abetting terrorism, undermining the internal security of the State, establishing an armed branch of a rebel movement, and attempting terrorism and any form of violence to destabilize authority and violate constitutional principles.
Ingabire was convicted and sentenced to eight years in prison; on appeal to the Supreme Court of Rwanda, her conviction was upheld, and her sentence increased to 15 years.. Ingabire claimed that the State violated articles 7 (right to fair trial) and 9 (right to receive information and free expression) of the African Charter, and articles 14 (right to a fair trial), 15 (prohibition on retroactivity of the law), and 19 (right to hold opinions without interference) of the ICCPR.
1ºAfrican Court’s Analysis
a.Freedom of Expression
The AfCHPR found that the State violated Ingabire’s right to freedom of expression under Article 9(2) (right to freedom of expression) of the African Charter and Article 19 (right to freedom of expression) of the ICCPR. See id. at para. 173(ix). The Court reiterated that States have the right to implement laws restricting the right to freedom of expression, provided that the restrictions are provided by law, serve a legitimate purpose, are necessary in a democratic society, and proportionate to the legitimate aim. See id. at para. 133.
The AfCHPR found that the prohibition of the minimization of genocide is provided by law and serves a legitimate purpose. The Court found the former because the law meets the margin of appreciation given to States in defining and prohibiting acts under its own law, and because the law is sufficiently clear so as to allow individuals to adapt their behavior to the law. See id. at paras. 135-138. On the latter, the AfCHPR found that with Rwanda’s history of genocide, the restrictions on Ingabire’s right tto freedom of expression through the application of the minimization of genocide law serve the legitimate interests of national security and public order.
Next, the AfCHPR examined whether the restriction imposed against Ingabire through the application of the criminal law was necessary and proportionate to serve the legitimate interests of preserving national security and public order. See id. paras. 142-163. In its analysis, the AfCHPR noted that it is important that restrictions on fundamental freedoms must be justified under the particular circumstances of each case. See id. at para. 148. Drawing on European and universal human rights standards, the Court found that the right to freedom of expression protects not only informative expressions and favorable opinions, but also statements and opinions that “offend, shock or disturb” the State or the public. See id. at para. 143. Additionally, reiterating a previous AfCHPR decision, political speech aimed at the government or officials, or speech that comes from public figures, the Court further found, “deserve a higher degree of tolerance than others,” and therefore, the form of speech should be taken into consideration in analyzing whether it is necessary and proportionate to the legitimate aim sought.
First, the Court had to reconcile conflicting records of Ingabire’s statement at issue. The Court accepted the version more favorable to Ingabire, in which she discussed Hutus as victims of crimes against humanity and war crimes, over Rwanda’s Supreme Court’s record of her statement in which she referenced “another side of genocide: the one committed against the Hutu.”
In light of Ingabire’s statement, the Court found that the restriction placed on her speech through her conviction was not necessary in a democratic society. While the AfCHPR found that States with a history of genocide should restrict opinions that deny or downplay the magnitude or effects of the genocide because the statements “fall outside the domain of the legitimate exercise of the right to freedom of expression,” Ingabire’s statement, the Court held, did not deny or minimize the genocide against Tutsis because, in the statement accepted by the Court, she did not make reference to a genocide against Hutus.. The AfCHPR also found that restrictions on Ingabire’s criticism of the government and officials was not necessary and proportional to the aims sought, even when the language Ingabire used included potentially inflammatory language such as “fighting” the yoke of poverty, unjust courts, and repression; the statements, the Court stated, must be allowed and tolerated in a democratic society because “public officials cannot be immune from criticisms,” and the statements “cannot reasonably be considered as capable of” threatening national security and public order. . The Court conceded that Rwanda could have taken less restrictive measures to achieve the legitimate aims sought in a way that is necessary and proportionate.
The AfCHPR also found a violation of Ingabire’s right to defense under Article 7(1) of the African Charter. Having found that the right to defense includes access to witnesses, the ability of counsel to consult with the client, to question witnesses, and to have access to the evidence, among other rights, the Court determined that threats and intimidation of one of the witnesses by prison officials, the use of evidence against Ingabire that was produced through that intimidation and never shown to the defense, and difficultly defense counsel had in questioning one witness were all in violation of the right to defense.
The other allegations relating to the right to a fair trial – specifically, on the right to presumption of innocence, the right to a neutral and impartial tribunal, and the right to non-retroactivity of criminal law – were rejected by the Court. The Court’s findings were based first, on a lack of evidence to support the allegations on violations of the rights to presumption of innocence and to a neutral and impartial tribunal. Second, the Court found that while the principle of non-retroactivity of criminal law prevents the application of a criminal law to an act that occurred before the criminal law was adopted, there is an exception if the application of the current law would be more favorable to the defendant, such as if a lighter sentence would be imposed under that law; in this case, the Court held that Ingabire was better off under the criminal law to which she was held than that in force at the time of her actions. The African Court will later rule on forms of reparations and on costs in a separate ruling.
2ºRwanda’s Withdrawal from the Court’s Jurisdiction over Individuals and NGOs
On February 29, 2016, Rwanda submitted its withdrawal of its declaration accepting the competence of the African Court to receive cases brought by individuals. Rwanda had previously made a unilateral declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights (the Protocol) allowing individuals and non-governmental organizations to bring claims directly to the Court against Rwanda. Rwanda stated that its reason for withdrawal was that its declaration under Article 34(6) was being exploited by “convicted genocide fugitives,” likely referring to the Ingabire case
3.3 Rugumba case
The applicant in this reference, Plaxeda Rugumba, approached the EACJ claiming that her brother, Seveline Rugigana Ngabo, a lieutenant-colonel in the Defence Force of the Republic of Rwanda, had been arrested on 20 August 2010 and held incommunicado by the Rwandan government. She alleged also that Lieutenant-Colonel Ngabo had not been formally charged before any court of law and that his wife was not able successfully to file an application for habeas corpus as her attempts to follow up the detention of her husband had led to her being harassed into hiding by the Rwandan government.
It is on this basis that she sought a declaration by the Court that her brother’s arrest and detention without trial was a breach of articles 6(d) and 7(2) of the EAC Treaty which demand that member states shall govern their populace on the principles of good governance and universally-accepted standards of human rights.
In defence, the respondent claimed that Lieutenant-Colonel Ngabo had been arrested on suspicion of having committed crimes against national security, and that the government had since regularised his detention and, as such, he was detained in a known military prison and was exercising his rights including visitation by his lawyers, family and friends. This, however, was subsequent to a decision of the Military High Court, which on 28 January 2011 ruled that his detention from the date of his arrest until arraignment in court was irregular and contravened the provisions of the Rwandan Code of Criminal Procedure.
In rendering its decision, the First Instance Division of the EACJ made a finding that the respondent had indeed violated the provisions of articles 6(d) and 7((2) of the EAC Treaty by holding the applicant’s brother incommunicado for a period of five months. The Court in its judgment not only reaffirmed the Katabazi doctrine, but also proceeded to refer substantially to the provisions of article 6 of the African Charter which protects against unlawful detention. It further observed that ‘the invocation of the provisions of the African Charter on Human and Peoples’ Rights was not merely decorative of the Treaty but was meant to bind Partner States’.
The respondent appealed the decision on grounds which included the fact that the EACJ had no jurisdiction to entertain the claim since it raised issues of violations of human rights. In reaffirming its jurisdiction, the EACJ’s Appeals Chamber acknowledged that although the Court as yet had no express human rights jurisdiction as envisaged under article 27(2), it did have jurisdiction to interpret and apply the treaty provisions. Given that the claim referred to articles 6(d) and 7(2) of the Treaty, it could not abdicate its interpretive jurisdiction merely on the basis that the claim included allegations of a violation of human rights. In its judgment the Court made substantial reference to the decision in Katabazi and the IMLU case, in which the Court clarified that it was not a human rights court adjudicating substantive claims of violations of specific rights, but that it was determining claims of breach of articles of the EAC Treaty. The appellate court then proceeded to dismiss the appeal and upheld the decision of the First Instance Division.
II.CRITICIAL ANALYSIS OF IMPACT OF INTERNATIONAL AND REGIONAL COURTS ON DOMESTIC LEVEL
A series of observations deserve to made on the position of the Rwandan government vis-a-vis international and regional courts when it deems threatened its political interests.
2.1. Influence on national laws, policies and actors
It is arguable from the judgment of the First Instance Division that the case contributed to the promotion of human rights and respect for the rule of law by the Rwandan government, albeit in an oblique manner. Based on the facts, Lieutenant-Colonel Ngabo was arrested and detained incommunicado on 20 August 2010. His older sister filed the reference before the EACJ on 8 November 2010. It is only after this reference had been filed that the domestic wheels of justice began to turn in Rwanda with the subject being presented to the Military High Court on 21 January 2011. The Military High Court made its decision within a week and on 28 January 2011 declared his detention unlawful and thereafter proceeded to issue a valid preventive detention order as stipulated under the Rwandan Code of Criminal Procedure. Indeed, the Appellate Division of the EACJ acknowledged the impact that the filing of the reference had on the national systems when it observed that ‘it was agreed by both parties before the court below that upon the reference being filed; the Republic of Rwanda produced the subject before the Military High Court’. In a departure from the other cases analyzed in this article, it is noted that it was not the decision of the Court that spurred the government to cease the violation complained of, but rather the filing of the reference before the EACJ. This approach by a member state was also apparent in the case of Democratic Party & Another v the Attorney-General of the Republic of Uganda, where the authorities proceeded with haste to pass national legislation upon the filing of the reference at the EACJ. Thus, a unique form of influence is seen in these two instances, which may seem to be a departure from the overall object of this article, but which is significant for purposes of human rights litigation in general – that at times the filing of suits may influence states to cease ongoing violations or take positive steps to comply with their human rights obligations, thereby safeguarding human rights in the long run.
2.2. The very existence of Article 34(6) as an impediment
In Falana v AU, the Court had the opportunity to consider whether the very existence of optional direct access, as embodied in the requirement to make an Article 34(6) declaration, violates the African Charter or other human rights treaties. The applicant argued that Article 34(6)—and the failure of Nigeria to make such a declaration—violates the African Charter’s provision on the right to be heard (as part of Article 7, the right to a fair trial). Put another way, the question before the Court was whether the AU can be held responsible (for having violated the Charter) by virtue of an act or omission (the adoption of the Protocol containing the provision; or the failure to make an Article 34(6) declaration) of one of its member States (Nigeria)). An ancillary question was whether the AU, as an international organization committed to uphold human rights and even to intervene in members under certain circumstances, can compel its members to take certain action (such as making an Article 34(6) declaration) or refrain from certain action (such as adopting Article 34(6) as part of its treaty regime). In the view of the majority of the Court, the answer is quite evident: on the basis that this matter was instituted against the AU, which is not in its own right a State party to the Court Protocol, and cannot become one, the majority found that the Court lacked personal jurisdiction. The adoption of Article 34(6) was a decision of a majority of States; and the failure to make a declaration was a sovereign act by the Nigerian government. It seems that answer is clearly correct: as an autonomous international organisation, the AU has legal personality separate and distinct from its members.
2.3.The small number of States accepting direct access
The small number of declarations under Article 34(6)—only eight so far, with Rwanda’s withdrawal taking effect on 1 March 2017, thus reducing the number to seven—is an important factor. However, this factor is not conclusive to permitting actual access. That an Article 34(6) declaration is a necessary but insufficient condition for direct access to the Court may be seen from the fact that no cases have been instituted against some of the States that were among the first to make such a declaration. Ghana had, for example, deposited its declaration already in 2011, but no application against it has been submitted
to the Court over the subsequent five years. Also, very few cases against Ghana have ever been submitted to the African Commission. The African Court has made efforts to encourage an increase in Article 34(6) declarations by way of sensitization visits to States that have not yet made the declaration. Logic suggests that the member States of the Economic Community of West African States (ECOWAS) are most likely to make these declarations. These States all already accept, by virtue of their membership of ECOWAS, the jurisdiction of the ECOWAS Community Court of Justice. This Court not only has jurisdiction over human rights, as set out in the African Charter, but also allows direct access—even without requiring the exhaustion of domestic remedies. Allowing such ease of access to a subregional court, while at the same time denying direct access (after the exhaustion of domestic remedies) on the same substantive basis at the regional level, seems to present a clear anomaly. This anomaly is rooted in actual practice, with the ECOWAS Court having been ‘at least as active in adjudicating human rights violations’ as the African Court and Commission. It should therefore come as little surprise to note that five ECOWAS member States (Benin, Burkina Faso, Côte d’Ivoire, Ghana and Mali) have rid their legal systems of this anomaly (and thus make up the core of the seven direct-access States). While it is disappointing and incongruous that almost half the ECOWAS member States have not even ratified the Court Protocol, the most compelling argument for making the Article 34(6) declaration, at present, should be directed at those ECOWAS member States that are party to the Court Protocol and had not yet done so: The Gambia (in particular in the Adama Barrow era), Niger, Nigeria and Senegal. Clearly, two of the hegemons in West Africa, Nigeria, in the anglophone and Senegal, in the francophone parts of the subregion, have thus far refrained from accepting direct access to the continental Court. Is it possible that Senegal has been made watchful due to the submission of the Yogogombaye case; and that Nigeria is more inclined towards the ECOWAS Court, for which it provides the seat in its capital, Abuja? In any event, these two States are in the company of other sub-regional hegemonies (South Africa in Southern Africa; and Kenya in East Africa) that are party to the Court Protocol but have not made Article 34(6) declarations.
2.4.States avoiding disclosure of violations of public liberties and dictatorship
For instance, one of the pending applications against Rwanda relates to the ousting of the executive committee of a leading human rights NGO, the Rwandan League for the Promotion and Defense of Human Rights (LIPRODHOR), allegedly to silence its vocal criticism of the government. The application at paragraph 17 not only requests the Court, among other things, to publicly condemn intimidation against independent human rights defenders and recognize the importance of their work and to reform domestic legislation restricting NGOs activities. It also asks the Court to order the state to take immediate and all necessary steps to strengthening the independence of the judiciary’, ‘to initiate broader legal reform process with the purpose of creating an enabling environment for civil so steps to redress the alleged human rights violations.’ De case, this could easily become an additional flash-point for criticism of the Court by the Rwandan government.
An important point should be made here, which returns to one of the fundamental contextual factors, namely the wide variety of governance systems in States that have acceded to the African Court’s jurisdiction. not are perennially contested, Rwanda under President Kagame has long been considered by leading indices to be an authoritarian regime. Indeed,Ingabire the judgment government’s must be viewed in the context of significant repression of domestic critics: as Freedom House noted in 2016, President Kagame ‘has efficiently closed the space for House, 2016, p. 11), including suppression of NGOs through onerous registration procedures (Amnesty International, 2017). International NGOs such as Human Rights Watch have documented intensifying repression since the August 2017 presidential elections, through arrests, torture, forced disappearance, and intimidation, of political opponent, intimidation of and interference with the media, and human rights structures such as Human Rights Watch and Amnesty International.
A broader insight can also be made with regard to the resistance framework set out by Madsen, Cebulak and Wiebusch. In democratic states different sites of authority operate with considerable independence, and significant resistance tends to depend on a sufficient level of consensus emerging among multiple actors. In authoritarian regimes, by contrast, one can expect the national government to take the leading role in resistance against an IC, and –depending on the
extent to which they have been captured by the government –national courts‘ and the media might be considered as ‘national government’ actors rather than separate actors in the constellation of resistance actors. As the Rwexit experience indicates, such governance systems also permit rapid reactions against an IC, which differs starkly from the slow building of a broad-based ‘resist consensus’ seen in the states such as the United in Kingdom which itself resonated with resistance actors in states including the Netherlands and Russia.
After the foregoing, there remains worries about the rationale of having an international and regional courts where states detain the veto power about the exercise of their competence on them and where decisions issued against those implied states cannot be enforced. Cases involving Rwanda are one among many others whereby losing states are not worried and go on infringing fundamental rights of their citizens in a perfect impunity. Importantly, however, one glaring point that must be reiterated is the lack of an express human rights jurisdiction of the EACJ. Whereas there is no mandatory treaty obligation on the member states to vest the EACJ with human rights jurisdiction, it is submitted that the EACJ would have more impact on national human rights practices if it were able to issue binding decisions to reinforce the Community’s human rights commitments as stipulated in its founding Treaty. Moreover, the progressive integration of the EAC into a political federation requires a correspondingly robust framework for the promotion and protection of human rights, which would include an EACJ with clear jurisdiction to hear and determine complaints relating to the violation of human rights.
after all, The regional courts case-study also highlights the importance of the overall political context in which an IC functions: resistance emanating from authoritarian regimes can differ from resistance emanating from more democratic regimes (although all exist on a spectrum, and this is not to say that resistance strategies from authoritarian and democratic states will necessarily differ). Resistance can come about more swiftly and national governments tend to take on a more central role in authoritarian states than in the slow consensus building required within democratic states. Overall, the single most important form of resistance to a young court is the strategy of ignoring the court by not allowing it to exercise the full de jure authority and jurisdiction accorded to it by its founding treaty. Patterns of resistance in the African Court and EACJ context also appear to involve smaller constellations of actors, with national courts and the media in particular playing little role in resistance against the Court to date. Specific reasons for resistance can be difficult to discern, as seen in the terseness and taciturnity of the Tanzanian government, or can hinge on one central issue, as seen in the Rwandan context. With most analyses of the Court’s case-law focusing on description and discrete legal areas rather than the broad picture, this analysis highlights the need for further work in understanding the specific audiences, resistance constellations and dynamics of resistance in the African context.
By The Rwandan Lawyer
1 INTERNATIONAL COURT OF JUSTICE YEAR 2006 2006 3 February General List No. 126 3 February 2006 Case concerning armed activities on The Territory of The Congo (New Application: 2002) (Democratic Republic Of The Congo V. Rwanda)
2 Ingabire Victoire Umuhoza v. The Republic of Rwanda, App. No. 003/2014, Judgment of 24 November 2017, paras. 173(viii)-(ix).
3 see J Gathii ‘Mission creep or a search for relevance: The East African Court of Justice’s human rights strategy’ (2014) 24 Duke Journal of Comparative and International Law 249
5 See OC Okafor The African human rights system, activist forces and international institutions (2007).
6 KJ Alter, JT Gathii & LR Helfer ‘Backlash against international courts in W
7 See para 37 of the First Instance decision.
8 Attorney-General of the Republic of Rwanda v Plaxeda Rugumba EACJ Appeal 1 of 2012.
9 Falana v African Union, App 1/2011, Judgment (26 June 2012); see also Atemnkeng v African Union, App 14/2011.
10 Falana v African Union, App 1/2011, Judgment (26 June 2012)
11 The African Commission has only ever found a violation against Ghana in one communication (Comm 103/93); four other complaints have been declared inadmissible; one complaint had been withdrawn
12 ST Ebobrah, ‘A Rights-Protection Goldmine or a Waiting Volcanic Eruption? Competence of, and Access to, the Human Rights Jurisdiction of the ECOWAS Community Court of Justice’ (2007) 7 AHRLJ 307 325–8
13 KJ Alter, LR Helfer and JR McAllister ‘A New International Human rights Court for West Africa: The ECOWAS Community Court of Justice’ (2013) 107 AJIL 737
14 They are: Cape Verde, Equatorial Guinea, Guinea-Bissau, Guinea, Liberia, Sierra Leone and São Tomé e Principe.
15 ACHPR, App. No. 023/2015 Laurent Munyandilikirwa v. Republic of Rwanda.
16 Freedom House 2018; Economist Intelligence Unit (EIU) 2017: 33
The African Charter on Human and People’s Rights
The European Convention on Human Rights and Fundamental Freedoms
The American Convention on Human Rights
The Constitutive Act of the African Union
Protocol Establishing the African Court for Human and People’sRights
Kate Stone, African Court of Human and People’s Rights (Advocates for International Development, February 2012). Legal Guide (2012).
Femi Falana vs. African Union Application No.001/2011
Michelot Yegogombaye vs Senegal Application No.001/2008
SERAC vs. Nigeria 2001 AHRLR 60 (ACHPR2001)
Democratic republic of Congo vs., Burundi, Rwanda and Uganda No.227/99
International Court Of Justice Year 2006 2006 3 February General List No. 126 3 February 2006 Case Concerning Armed Activities On The Territory Of The Congo (New Application: 2002) (Democratic Republic Of The Congo V. Rwanda)
Ingabire Victoire Umuhoza v. The Republic of Rwanda, App. No. 003/2014, Judgment of 24 November 2017, paras. 173(viii)-(ix).
KJ Alter, JT Gathii & LR Helfer ‘Backlash against international courts in W
See para 37 of the First Instance decision.
Attorney-General of the Republic of Rwanda v Plaxeda Rugumba EACJ Appeal 1 of 2012.
Falana v African Union, App 1/2011, Judgment (26 June 2012); see also Atemnkeng v African Union, App 14/2011.
Falana v African Union, App 1/2011, Judgment (26 June 2012)
four other complaints have been declared inadmissible; one complaint had been withdrawn
ST Ebobrah, ‘A Rights-Protection Goldmine or a Waiting Volcanic Eruption? Competence of, and Access to, the Human Rights Jurisdiction of the ECOWAS Community Court of Justice’ (2007) 7 AHRLJ 307 325–8
KJ Alter, LR Helfer and JR McAllister ‘A New International Human rights Court for West Africa: The ECOWAS Community Court of Justice’ (2013) 107 AJIL 737
ACHPR, App. No. 023/2015 Laurent Munyandilikirwa v. Republic of Rwanda.
Freedom House 2018; Economist Intelligence Unit (EIU) 2017: 33