Friday, August 02, 2013

Africa: Case Watch - Narrowing the Door for Human Rights in East Africa

Source: Open Society Foundations

Case Watch: Narrowing the Door for Human Rights in East Africa

by Ben Batros & Haben Fecadu

In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.

The East African Court of Justice (EACJ) hasn’t yet been granted formal human rights jurisdiction. But nevertheless, it has emerged as a growing legal venue in East Africa for human rights cases. In a recent post, we described how the EACJ had begun to hear more human rights cases after its influential Katabazi judgment, where the court held that community states had an obligation under the East African Community Treaty to follow the rule of law, which is itself closely linked with strengthening human rights. But since then, the court has issued a range of judgments that will affect its ability to hear cases involving human rights abuses and restrict the ability of victims to bring such cases.

This trend began with the appeal decision in IMLU v Kenya, which was pending at the time of our previous post and which we noted could have a huge impact on the role of the court in holding governments accountable. Unfortunately, we were right. Although the first instance decision had ruled that the court did have jurisdiction to hear the claims that the Kenyan government had failed to prevent or to investigate over 3,000 cases of murder, torture, or inhumane treatment committed by its security forces while combatting a local militant group in the Mount Elgon region, the appellate division overturned this judgment. It agreed that the court could hear cases involving human rights claims if the court could also identified how they fell under one of the existing grounds for jurisdiction (such as the rule of law), but considered that the first instance court had not explained how this case did so.

Ordinarily, this would not be a major cause for concern—the appellate division would just send the case back and tell the first instance division to do it again. But here, the court went further, and dismissed the case entirely on the basis that it was brought out of time. The East African Community Treaty establishes a very short two month time limit to bring claims. This tight time limit would pose difficulties for any victim of a human rights violation, especially as they often come from marginalized groups with limited access to the legal system. But those difficulties are even more acute in cases of a failure to investigate, when it is difficult to determine, and to prove, when the government’s failure began. Most human rights courts deal with this by accepting that certain violations, including the failure to investigate abuses, are “continuing violations.” But the East African Court rejected this, stating that the East African Community Treaty made no provision for continuing violations and struck out the case. The applicants later sought review of this decision, but the appellate division again rejected their request.

The appellate division maintained this position, and provided further explanation, in a second case, Att’y General of Uganda and Att’y General of Kenya v. Omar Awadh and six others. In this case, seven claimants who were suspected of involvement in the 2010 Kampala World Cup bombings argued that Kenya and Uganda had breached their rights, and the rule of law, when Kenyan officials arrested, detained, and transferred them to Uganda outside of the ordinary extradition procedures, where they were tortured and arraigned on terrorism charges. As with the IMLU case, the first instance division would have allowed the case to be heard, but the EACJ appellate division overturned that ruling and concluded that the case was in fact time barred because the applicants had knowledge of the acts more than two months before they brought the case. The appellate division reiterated that the EAC Treaty creates no exception for continuing violations, and explained its decision by distinguishing the East African Court of Justice from other human rights courts on grounds that its mandate is to interpret the EAC Treaty, while the sole purpose of the other courts is to guarantee that human rights are protected.

These rulings have narrowed the ability of individuals to bring cases before the East African Court of Justice, including cases that raise issues related to the violation of the rule of law and associated human rights, But the door hasn’t been closed entirely. In a recent case, Mhochi v. Att’y General of Uganda, the court upheld claims by a member of the Kenya chapter of the International Commission of Jurists who was detained at Entebbe airport by Ugandan authorities and returned to Kenya. While reiterating that the East African Court is not a human rights court, and therefore rejecting the applicant’s claims under the African Charter on Human and Peoples’ Rights, the court held that the Ugandan authorities had denied him due process (they had given no reason for denying entry and refused him a fair hearing or to consider his arguments). Such due process is a component of the rule of law, and this was therefore a violation of Article 6(d) of the East African Community Treaty.

The Mhochi decision reflects both the promise of the East African Court of Justice as a forum where community citizens can hold their governments to account for the commitments that they have made to the rule of law and to associated values of human rights and also the challenges they face in doing so. The court made a strong statement that the obligations under Article 6(d), which include “adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality”, “are solemn and serious governance obligations” which it can adjudicate and enforce. Yet it was only able to enforce these obligations because the applicant submitted his claim within the very tight two-month time limit the treaty sets. Given that a member of the International Commission of Jurists was able to submit his claim only on the last day possible, one can see the challenge this poses to the majority of those denied human rights and the rule of law, who will not have such immediate awareness of their rights and access to the legal process—a challenge highlighted by the two previous cases, both rejected by the appeals chamber.

The East African Court is not a human rights court, as it has reminded us in these recent decisions. However, it is still in its burgeoning stages, and through its judgments on the rule of law, it is finding its way as a non-traditional context in which some human rights claims may be vindicated. It remains a court to watch.

For more on human rights decisions from courts around the world, consult our Case Digest series.