State compliance with decisions of the African Court: the case of Alfred Agbesi Woyome v Ghana

2.1 The African Court on Human and Peoples’ Rights

The African Court was established in terms of article 1 of the Court Protocol. The Court Protocol was adopted on 10 June 1998, in Ouagadougou, Burkina Faso, by the then Organization of African Unity (OAU).13 The Protocol entered into force on 25 January 2004. The African Court became operational in 2006 and is composed of 11 Judges elected by the Executive Council and appointed by the Assembly of Heads of State. The African Court has jurisdiction over all cases and disputes submitted to it regarding the interpretation and application of the Charter, the Court Protocol and any other relevant human rights instrument ratified by states.14 As the Charter deals with human and peoples’ rights, any allegation of a breach of the rights of an individual falls in the purview of the Court. However, as illustrated in the case of Michelot Yogogombaye v Senegal,15 there is an avenue for individuals to access the Court but only when the violating state party has made a declaration recognising the competence of the Court to receive individual complaints.16 Further, the individual must have exhausted all local remedies. Ghana has recognised the competence of the African Court to receive individual complaints.

The African Court has the mandate to order reparations and compensation and its decisions are final and binding on all parties. As at June 2019, the Protocol had been ratified by 30 member states of the African Union, namely: Algeria, Benin, Burkina Faso, Burundi, Cameroon, Chad, Congo, Côte d’Ivoire, Comoros, Gabon, The Gambia, Ghana, Kenya, Libya, Lesotho, Malawi, Mali, Mauritania, Mauritius, Mozambique, Niger, Nigeria, Uganda, Rwanda, Sahrawi Arab Democratic Republic, Senegal, South Africa, Tanzania, Togo and Tunisia. Of the 30 state parties to the Protocol, only seven, namely: Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali and Tanzania, had made the declaration under article 34(6) accepting the jurisdiction of the African Court to receive cases from individuals and non-governmental organisations.17 Rwanda, which previously made the declaration has since withdrawn, revealing the difficulty states have with subsuming their judicial sovereignty with that of the African Court.18

As at June 2019, a total of 216 applications had been received by the African Court. 201 were from individuals, 12 from NGO’s and 3 from the Commission. As at the time of writing, the Court had so far finalised 58 applications, transferred 4 applications to the Commission and had 154 applications pending. All the decisions of the African Court are communicated to the parties, in accordance with article 29(1) of the Protocol. Under article 31 of the Protocol, the Court submits an Activity Report to the Assembly, specifying cases completed, those pending and cases in which states had not complied with decisions of the court.

The expectation is that the African Court would be a supranational institution that would ‘give teeth’ to the Charter and hold state parties accountable for violations of human rights.19 Yet the Protocol does not describe how the Assembly is to respond to reports of noncompliance although the Executive Council, on behalf of the Assembly, is to monitor the execution of the African Court’s orders. Without an effective enforcement mechanism however, these aspirations for the African Court cannot be met and the judgment of the African Court is useless.

2.2 Problems with compliance and implementation of the African Court’s decisions

The typical follow-up procedures for enforcement of human rights standards do not seem to be effective or work to engender compliance of states.20 In the 2016 activity report from the African Court to the Assembly, Tanzania for example, in the case of Ally Rajabu 007/2015 and the case of John Lazaro 003/2016 on the issue of imposing the death penalty informed the African Court that it would be unable to implement the orders of the Court.21 Activity reports also reveal that Ghana in the first Woyome decision of the African Court on the preliminary matter of stay of execution, informed the Court that it would await the African Court’s final decision but in reality did the opposite.

States that ratify international or regional human rights treaties do so with the understanding that no nation is an island and that in matters of human rights, there is the need to set universal standards. These standards basically mean the right to life, liberty and property for all people without discrimination22 and access to justice for all victims of violations of rights. Oba has observed that domestic human rights legislation may not be enough to stop massive human rights violations and this makes a strong case for concerted action by the international community and intervention by supranational courts.23 Noting that international law is now being used in municipal courts to challenge violations of human rights in particular, points to a growing awareness of the African Charter in some African countries since the 1990s.24 It has been also contended that the common law rules on enforcing foreign judgments, whereby foreign judgements are directly enforced in domestic arena, could also apply to enforce judgments rendered by international courts and tribunals.25 For example, under the common law, the procedure for enforcing foreign judgments is just for the judgment creditor to issue a writ and plead that the judgment debt is due and owing.26 In Ghana, the statute on the issue, Part V of the Courts Act 1993 (Act 459),27 allows Ghana to have reciprocal relationship with any other country whereby judgment given by domestic superior courts could be enforced in both countries. Contending that judgements from international courts like the African Court should also be considered ‘foreign judgments’ means that in the absence of legislation incorporating provisions of the Charter and its Protocol into domestic laws, municipal courts (such as the Supreme Court of Ghana) could nevertheless implement and enforce orders of the African Court as foreign judgment. Such an understanding would make it easier to implement judgment from the African Court in domestic courts of member countries like Ghana.

All but one AU member states are party to the African Charter28 and commitments to human rights principles feature in almost all AU documents. Prior to 2004, much of the work of the AU in the area of human rights was undertaken by the African Commission. The Commission is charged with promotion and protection of human and peoples’ rights under conditions laid down by the Charter and also with interpretation of the Charter.29 The Commission however attracted much discontent because although it played a prominent role in developing African jurisprudence in human rights, it was cash strapped, lacked the mandate to adjudicate cases brought by individuals and could not give binding opinions.30 As noted above, the African Court rectified the situation when the Court Protocol allowed individuals to claim rights against state parties.

However, adhering to universal standards in human rights and to the jurisdiction of international and regional human rights bodies like the African Court, signifies the need to surrender some aspect of state autonomy for the common good of humankind. Surrendering state autonomy is very difficult for sovereign states and many defer to the theory of dualism to evade domestic application and enforcement of universal standards.31 But of what use are these human rights standards when they can neither be implemented nor decisions enforced domestically to the benefit of individual victims? The main obstacles to domestic enforcement of decisions from the African Court are (1) dualism and lack of compliance; (2) lackluster judiciary; and (3) failing national human rights institutions.

The first obstacle is dualism and lack of compliance with the African Court’s decisions. In monists’ states like the Netherlands and France, domestic courts can apply international law principles in deciding cases.32 Similarly, individuals are at liberty to rely on international law rules to support arguments in national courts. Consequently, monists believe that when a state ratifies an international human rights treaty, it becomes ipso facto part of its law and their parliament need not pass laws to give effect to them before they become operational. Under monism, whenever there is a conflict between international law and municipal law, international law principles are supreme and must take precedence over the national law.33 Conversely and traditionally, dualist states like Ghana hold the position that international law and municipal laws are two different laws altogether and the rules of international law are not applicable in municipal courts unless parliament passes a law to give effect to them. Hence, when dualist states become parties to an international treaty, the treaty does not automatically apply in domestic law. At best an international treaty is of persuasive authority unless and until Parliament ratifies it and enacts legislation incorporating the international treaty into domestic law. Hence, to dualist states, international and regional human rights law is inapplicable in municipal courts in the absence of an enactment by parliament giving effect to it. In the Ghanaian context, article 75 of the Constitution states:

(1) The president may execute or cause to be executed treaties, agreements or conventions in the name of Ghana.

(2) A treaty, agreement or convention executed by or under the authority of the president shall be subject to ratification by -

(a) Act of parliament; or

(b) A resolution of parliament supported by the votes of more than one-half of all the members of parliament.

In addition to the above, although a treaty ratified by Parliament binds Ghana internationally, for the treaty to be domestically applicable and capable of invocation in Ghanaian courts, Parliament must further pass a specific legislation to domesticate or transform it into Ghanaian law.34

As noted by Ian Brownlie,35 international practice however seems to favour the position that a state cannot rely on provisions of its own law or deficiencies in that law in response to claims of alleged breach of its international obligation.36 Brownlie argued further that in treaty obligations there is a general duty to bring national law in conformity with obligations under international law.37 In the Free Zones case, the Permanent Court of International Justice pronounced, amongst others, that France cannot rely on domestic legislation to limit the scope of its international obligations.38 Further, although the Vienna Convention on the Law of Treaties recognises the fact that a treaty is a written document between sovereign states,39 article 26 of the Convention establishes that every treaty in force is binding on the parties to it and must be performed in good faith. Article 18 defines good faith to mean that a state must refrain from acts which would defeat the objects and purpose of a treaty. Article 27 of the Convention also affirms the principle that a state party may not invoke the provisions of its internal laws as justification for its failure to perform its obligation under a treaty.

The second obstacle is the problem of lacklustre judiciary in nation states. The concept of dualism makes implementation and enforcement largely dependent on the political will of state parties to enact legislation to give effect to the human rights obligations undertaken under treaties. The judiciary is the other arm of government and acts of the judiciary are imputed to the state.40 As already seen, under article 30 of the Court Protocol states agree to be bound by decisions of the African Court and to ensure their execution. It is conceded however that although a decision reached by the African Court is final and binding on parties to the dispute, as already mentioned, the Court is not an appellate court in the hierarchy of domestic courts and enforcement of its decisions within domestic arena relies on the good will of state parties. Hence, although compliance is to be monitored by the executive,41 execution of judgments is based on willingness of state parties to cooperate.42

National courts however continue to grapple with ideas of ‘judicial sovereignty’ and find it difficult to implement decisions from supranational judicial institutions like the African Court. Egede,43 for example, argues that holding that human rights treaties are not enforceable unless domesticated defeat the very purpose for ratifying the treaties in the first place; which is to secure rights for the benefit of individuals.44 He proposed that treaties can be applied indirectly and be of persuasive authority because they can be said to have attained some legitimacy as customary international law.45 But we contend that such interpretation will depend on an activist judiciary.46 Unfortunately in many parts of the world, including Ghana, judges especially those at the highest appellate courts, are appointed by the executive usually to influence policy and these judges, absent domestic law, may find it difficult to be independent in politically charged cases like the Woyome case where politics and law seem to collide.

Failing national human rights institutions are also an obstacle to domestic implementation of decisions from the African Court. National human rights institutions could be a conduit for state party compliance with decisions of the African Court. According to the Paris Principles,47 part of the mandate of a national human rights institution is to give advisory opinions on legislative and administrative provisions in force in the particular country including making recommendations on bills and making proposals and reports on any matters concerning the promotion and protection of human rights.48 National human rights institutions are therefore agents for proposing bills and laws and they should advice governments on such matters. Human rights institutions are to bring rights home by engaging other stakeholders in implementation of decisions from the African Court.49 Therefore, human rights institutions must be more proactive and not gagged. Unfortunately, these institutions like Ghana’s Commission on Human Rights and Administrative Justice are usually cash strapped and incapable of undertaking proper investigation in sophisticated cases involving the government. Additionally, some of these institutions like Ghana’s Commission are quasi-independent and officials are still appointed with approval from the President.

The Woyome case revealed the impotency of national human rights institutions. Ghana’s Commission did not intervene and chose to be silent when the Supreme Court refused to obey or acknowledge the interim order from the African Court. Indeed with the exception of few commentators who were alarmed that the decision of the Supreme Court could deter investors,50 not much outcry followed the decision. The least the Commission could have done was act suo muto and write a position paper to the government on the obligations of state parties on such matters. National human rights institutions should act as internal watchdogs and pressure points on the government.

The above concerns necessitated this research into the Supreme Court’s decision to determine the basis for denial of stay of execution proceedings and its consequences for decisions from the African Court.

4.1 Constitutional road block to stay of execution

On the first holding, the Supreme Court noted that the action by private individual Martin Alamisi Amidu which culminated in the execution process was brought under article 2 of the 1992 Constitution of Ghana. Article 2(1) of the Constitution states:

A person who alleges that -

(a) An enactment or anything contained in or done under the authority of that or any other enactment; or

(b) Any act or omission of any person

is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.

The Court noted that it was the Supreme Court itself that gave orders for payment of the money by the applicant to the government of Ghana and hence, it is its duty to enforce the judgment in compliance with article 2(2), (3) and (4) of the 1992 Constitution which provides as follows:

2(2) The Supreme Court shall for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.

(3) Any person or group of persons to whom an order or direction is addressed under clause (2) of this article by the Supreme Court, shall duly obey and carry out the terms of the order or direction

(4) Failure to obey or carry out the terms of an order or direction made given under clause (2) of this article constitutes a high crime under this Constitution and shall in the case of the president or vice-president, constitute a ground for removal from office under this Constitution.56

According to the Court, the foregoing constitutional provision imposes strict compliance by President and the Vice-President and that failure to comply with the directions from the Court could lead to their impeachment. To the Court, since the breach of the above directions has far-reaching consequences, an ordinary citizen like the applicant must strictly comply with the directions given by the Court in the exercise of its original jurisdiction. The Court also held that the Attorney-General in representing the government of Ghana by executing the judgment under article 88 of the 1992 Constitution is carrying out the constitutional duties imposed on it and no more. The Court further stated that the constitution of a sovereign state like Ghana is supreme and all institutions of state derive their authority from it. The Court thus held that the execution of the judgment by the Attorney-General is a step to fulfil a constitutional mandate imposed on it when article 2 is read in conjunction with article 88. Consequently, the Court found no merit in the submissions of the applicant.

4.2 Failure to plead human rights violation

The second and third holdings were in response to the applicant’s submission that if execution proceedings were not stayed before the application is heard by the African Court, his human rights would be violated. In making this submission, the applicant drew the Court’s attention to various exhibits clearly showing that the applicant had actually filed an application on 4 September 2017 at the African Court and same had been responded to by Ghana, the state party to this application. He submitted that since the matter was actively pending before the African Court, to determine the issues of human and peoples’ rights affecting him, it would be fair and just for the government of Ghana to stay the proceedings till the final determination of the proceedings pending at Arusha, Tanzania. He further argued that Ghana which is a party to the Protocol, is obliged to comply with interim measures of the African Court within the time stipulated by the Court and to guarantee its execution.

In response, the Ghanaian Supreme Court held that the applicant had failed to demonstrate potential human rights violations by evidence; or to furnish the Court of record with such potential human rights violations. It also held that despite numerous provisions on fundamental human rights under the Ghanaian 1992 Constitution, the applicant could not refer to any of the provisions in the Constitution or any statutes whatsoever to demonstrate any breaches of his rights and freedoms. Yeboah JSC made references to Atkin’s Encyclopaedia of Court Forms in Civil Proceedings57 and some cases58 which all affirm the common law principles that a stay of proceedings would be granted if there were special circumstances for its grant. The cases established that the burden lies with the applicant to show by available materials that there exist grounds for the motion. The Supreme Court decided that the applicant failed to discharge the burden and refused to grant the stay of execution proceedings.

6.1 Naming and shaming

Naming and shaming is an informal enforcement tool that has been used to coerce state parties into compliance with decisions of supranational institutions and standards.65 After the Second World War, when debates were held on whether to form regional arrangements on human rights, critics of regionalism had concerns that regional arrangements would lead to dilution and lowering of human rights standards and also that remedies in cases of individual violations may delay because of the need to first exhaust all local or regional remedies. Despite the concerns regional human rights systems flourished, starting with the European Convention for the Protection of Human Rights and Fundamental Freedoms,66 to the American Convention on Human Rights,67 and then the African Charter.

These bodies were established because it was hoped that within regions it would be fairly easy to enforce commitments of states to each other since states would be less resistant to change agreed to by their peers. It was also hoped that publicity about human rights would be more effective within the regional arrangements and that deviation from human rights standards could be easily sanctioned by bonds of mutuality. The above hopes have not materialised to a large extent and since traditional state reports and the loose follow up system for enforcing human rights have been slow in ensuring compliance, we suggest that naming and shaming should be utilised by the African Court. Publicising names of defaulters in the activity book is a start but there is need for this to be highlighted in every sphere of the AU activity so that presidents and government officials from countries with bad human rights records are not given positions within the Union.

Further, it is high time that the AU, especially the Executive Council responsible for monitoring compliance on behalf of the Assembly of Heads of States, begins to name and shame countries that have not yet operationalised the AU human rights documents in domestic law. It is recommended that the AU should liaise with the various national human rights institutions to undertake this exercise to audit domesti-cation of human rights documents. Apart from providing data, this exercise will make NHRIs more relevant, since many have become dormant in their respective countries.

6.2 States must become parties to human rights treaties only after domestication

It is recommended that one method of preventing state parties from raising constitutions and other domestic laws as an obstacle to the enforcement of their human rights obligations is to ensure that a state party is recognised as part of an international human rights agreement or treaty when such a state has passed the appropriate domestic law giving effect to the human rights obligations undertaken in the agreement. The closest example is membership of the European Union and its Charter which is based on not only being a party to the European Convention on the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights, but also on embedding the Court in domestic arena in order to grant rights to individual citizens.68 Until then, states must only be known as ‘signatories’ to treaties. This is an effective recommendation which may require changes to international law rules but its benefit would be immense since most African countries want to be part of the human rights system, especially for public relations purposes.69 Belonging to such systems is usually a precondition for foreign aid70 and western development grants. Indeed, many development partners of African countries do not want to grant aid that would facilitate human rights violations.71 It is proposed that such a rule will ensure that many states take the necessary steps to domesticate human rights obligations undertaken at international and regional and even sub regional level.

6.3 Liaising with all stakeholders and publicity for the African Charter in individual countries

From the Universal Declaration72 to the African Charter,73 states are encouraged to publicise, educate and teach the human rights provisions. Under the Charter, state parties

shall have the duty to promote and ensure through teaching, education and publication, the respect for the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood. 74

It is recommended that this mandate can be effectively achieved when the African Court liaises with all stake holders, not only the NHRIs but also the judiciary, law faculties and members of Bar associations. Publicity would demystify the Court and also encourage acceptability and accessibility. It is important for domestic stakeholders like the judiciary to understand the nature of state party obligations before the African Court. Many African judges including those in Ghana are willing to use international or regional human rights law and cases in domestic court decisions but these are only resorted to for persuasive authority.75 Decisions from the African Court however are expected to be binding and complied with and so publicity is very important if decisions of the African Court are not to be seen as brutum fulmen, meaningless thunderbolts and in this sense, ineffectual legal judgments.