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In 2024, three of the eleven positions of Judges of the African Court on Human and Peoples’ Rights (African Court) need to be filled. The African Court, which has been established under the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (African Court Protocol), is the African Union (AU)’s primary human rights judicial body. It has jurisdiction over 34 of 54 state parties to the African Charter. 

The AU policy organs (Executive Council on behalf of the Assembly), elect these three Judges in July. The AU has devised a system of rigid representation by region and gender in its elected bodies, such as the African Court. In line with this policy, the three vacancies on the Court are in respect of a West African female candidate, a Central African male candidate and an East African male candidate. Judges are elected for six year terms, which are renewable once.

As for the West African position on the Court, the incumbent is Justice Anukam, a Nigerian national. She was elected for and served a six-year term. She has been nominated again by Nigeria and is eligible for election. Apart from Justice Anukam, another woman from West Africa (Justice Marie Odile Thiakane Ndiaye, President of the Chamber, Dakar Court of Appeals) has been nominated. 

The position in Central Africa is different. Justice Tchikaya, a Congolese national, who has also served a six-year term, is unopposed, as no other male candidate from Central Africa has been nominated. 

The vacant position in respect of East Africa is contested by two candidates who do not currently serve on the Court.  Having served for two terms on the Court (as ‘East African male’ Judge), Judge Ben Kioko is not eligible for re-election. The one candidate is Ugandan High Court Judge Duncan Gaswaga,  who among others was on the bench of the case Uganda v Kwoyelo (The Republic of Uganda in the High Court of Uganda at Gulu [International Crimes Division], 13 December 2023). The other candidate is  Mr Samuel Kimeu, previously a member of the AU Advisory Board Against Corruption; and Executive Director, Transparency International-Kenya (2010-2020), and the Kenyan Section of the International Commission of Jurists (2005-2006).

In anticipation of these elections, the Arusha Initiative on 10 July 2024 hosted a webinar in collaboration with three academic institutions (the University of Pretoria (Centre for Human Rights), Makerere University (Human Rights and Peace Center (HURIPEC)), and Kabarak University (School of Law).  The Arusha Initiative is a Civil Society Organisations (CSO) led rights-holders movement advocating for a more transparent, participatory and merits-based process in the nomination and selection of AU human rights bodies.

Participants to the webinar emphasised the need for states to adopt inclusive and transparent processes for the nomination of AU elected officials, such as Judges to the African Court. Regrettably, thus far the nomination processes have been opaque and inaccessible to ordinary Africans, generally, across the continent, and specifically in Congo, Kenya, Nigeria, Senegal and Uganda. The Arusha Initiative and other civil society organisations  tried to generate more public discussion and raise greater awareness about these crucial appointments. Ultimately, the idea is to bring the AU institutions closer to the people of Africa; and to strengthen the authority and legitimacy of the AU human rights bodies, including the Court, by encouraging a more inclusive and participatory process of nomination and selection of important AU positions.

The webinar provided an opportunity to reflect on the suitability of the candidates, assessed against the criteria in the Court Protocol.  Under article 11 of the Court Protocol, nominees must meet four criteria: They must be (i) nationals of an AU member state; (ii) jurists (have a qualification in law); (iii) of high moral character; and (iv) of recognised practical, judicial or academic competence and experience in the field of human and peoples’ rights’.

Within the framework of the Arusha Initiative, an academic assessment was undertaken of the two incumbent Judges, based in particular on their separate and dissenting opinions.  Some minor concerns were raised about Judge Anukam. She delivered very few opinions that allowed her voice to be heard, and when she did do, the opinions were of a narrow technical rather than substantive nature.  In contrast, Justice Tchikaya wrote numerous dissenting and separate opinions. His passionate support for the total abolition of the death penalty is noted as being very progressive. However, the following emerged as issues of some concern: his frequent and often acontextual reliance on the European human rights system, his uncritical embrace of the ‘margin of appreciation’ doctrine, and his approach in some admissibility decisions to undermine victims’ access.

As for Justice Marie Odile Thiakane Ndiaye, nominated by Senegal: She previously served as President of the Dakar Labour Court. She played an influential role advocating for women’s rights and is the currently president of l’Association des femmes magistrates du Sénégal (AFMS) (Association of Women Magistrates of Senegal).

Participants (including Dr Busingye Kabumba from HURIPEC and Dr Japeth Biegon from Amnesty International) shared insights about the two East African nominees. The general sentiment was that they are both promising candidates, but both lacked specific knowledge and expertise in ‘human and peoples’ rights’, especially as these relate to the African regional human rights system.

Watch Webinar Recording


For more information, please contact:

Prof Frans Viljoen                                                            
Centre for Human Rights
frans.viljoen@up.ac.za 

Ikechukwu Uzoma
Robert F Kenney Rights   
uzoma@rfkhumanrights.org 

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