a partnership between africa and latin america to … · a partnership between africa and latin...

A Partnership Between Africa and Latin AmericaTo Promote Access to Justice

A Report of the Cyrus R. Vance Center for International Justiceof

The New York City Bar

© 2009 The Cyrus R. Vance Center for International JusticeAll rights reserved.Printed in the United States by Paul, Weiss, Rifkind, Wharton & Garrison LLP

Report written by Elizabeth W. Millard, Africa Program Coordinator, Vance CenterInterviews conducted by Alyson Zureick, ConsultantDesign and layout by Alyson ZureickPhotos courtesy of Elise Colomer Grimaldi, Associate Director, Vance Center

The Vance Center acknowledges with gratitude the financial support from Open Society Institute Latin America Program, Open Society Initiative for East Africa, Swedish NGO Foundation for Human Rights, International Commission of Jurists–Kenya, Ford Foundation, Diamondston Foundation, and Spingold Foundation that made the roundtable in Arusha, Tanzania, described in this report possible.

The Cyrus R. Vance Center for International JusticeNew York City Bar42 West 44th St.New York, NY 10036www.vancecenter.org

1A Partnership between Africa and Latin America

Since its inception in 2001 the Cyrus R. Vance Center for International Justice has supported the efforts of a global network of lawyers and advocates to expand access to justice for poor and

marginalized peoples. The Center was established in honor of Cyrus R. Vance, former President of the New York City Bar and U.S. Secretary of State, and seeks to give continuing substance to his view of the role of lawyers in democratic societies.

Much of the Vance Center’s early work was in Latin America and addressed the legal poverty of disadvantaged people there. The Center marshaled the skills of U.S. lawyers to support human rights and public interest advocacy and helped build pro bono initiatives in the region. At the same time, the Center began exploring ways in which it could contribute to making the legal system in Africa more responsive to the legal needs of impoverished people there. Again with support from the U.S. legal community, the Center participated in efforts to revitalize pro bono work in southern and eastern Africa. It also arranged for U.S. lawyers to provide assistance on human rights and public interest issues emerging on the continent.

In the course of carrying out those projects, the Vance Center began to arrange conversations among the various African and Latin American lawyers and advocates it had met who were committed to promoting access to justice and human rights. These lawyers and advocates faced similar challenges. Africa and Latin America both have long histories of human rights violations. Both have populations that include large numbers of marginalized people and both continue to struggle to create strong democratic institutions. With the recent establishment of the African Court for Human and Peoples’ Rights (the “African Court”), the two regions now also have in place similar systems for promoting and protecting human rights.

Recognizing that their shared goals and challenges meant that human rights advocates in the two regions could learn from the experiences and benefit from the expertise of their counterparts in the other region, the Vance Center has undertaken to create a “South-South” network to enable them to share information, ideas, and best practices and collaborate on projects. As a first step, in the spring of 2008, in cooperation with the Coalition for an Effective African Court on Human and Peoples’ Rights, the East Africa Law Society, and the Foundation for Human Rights Initiatives (Uganda), the Vance Center organized a roundtable for human rights advocates from Africa and Latin America in Arusha, Tanzania, where the African Court is located. Participants shared ideas about tools and strategies civil society can use to make regional human rights systems strong, effective, and accessible. In October 2008, the Vance Center organized a follow-up roundtable in Buenos Aires at which participants from the two regions discussed concrete ways to continue to share ideas and collaborate with one another. The following is a report on these roundtables.

A Report of the Cyrus R. Vance Center for International Justice

To Promote Access to JusticeA Partnership Between Africa and Latin America

The Cyrus R. Vance Center for International Justice2

More than 40 human rights lawyers and representatives from human rights NGOs from across Africa and Latin America participated in the roundtable in Arusha. They were joined by several judges of the African

Court and members of the African Commission on Human and Peoples’ Rights (the “African Commission”). The participants, whose names are listed in Attachment A to this report, shared information and ideas about the requirements that must be met by a regional human rights system in order for it to promote and protect human rights effectively and about the tools and strategies civil society can use to help build regional human rights systems that meet those requirements. African participants in the roundtable also discussed the need to coordinate the activities of the new African Court with those of the various subregional courts in Africa that also have jurisdiction over human rights issues.

Roundtable on Strategies to Promote Human Rights through Regional Human Rights Systems

Arusha, TanzaniaMarch 30 - April 2, 2008

The Characteristics of a Strong and Effective Regional Human Rights System

Roundtable participants exchanged ideas about factors they saw as critical to the effectiveness of a human rights system.

Accessibility

Throughout the course of the roundtable participants emphasized that accessibility is fundamental to the effectiveness of a human rights system. They noted that regional human rights systems in Africa and Latin America would not be accessible to all citizens of the respective regions until all states had accepted the jurisdiction of the regional human rights courts. There are, however, nine states in the Americas (including Canada and the United States) that have not accepted the jurisdiction of the Inter-American Court on Human Rights (the “Inter-American Court”). Justice Gérard Niyungeko, President of the African Court at the time of the Arusha roundtable, pointed out that only 24 states, out of 53 that are members of the African Union, have accepted the jurisdiction of the African Court.

Another barrier to accessibility is that in neither Africa nor the Americas may individuals and NGOs bring claims directly before their human rights court (though generally they may bring matters to their human right commission). The only exception is found in the protocol establishing the African Court: an individual or NGO may bring a claim in that court against a state if the state has signed a declaration expressly accepting the competence of the African Court over such claims. Justice Niyungeko noted that only two African states, Burkina Faso and Malawi, had signed that declaration.

In the Inter-American system, an individual or NGO has access to the Court indirectly, through the Commission. If an individual or NGO has brought a case before the Commission, the Commission has issued a recommendation that the state party to the case take certain action, and the state has not taken that action

Hon. Justice Gérard Niyungeko of the African Court on Human and Peoples’ Rights.


Both the Inter-American and the African human rights systems include a regional human rights commission and a regional human rights court. The Inter-American Commission on Human Rights was created in 1960 to promote the observance and defense of human rights within the territory of the Organization of American States. The Commission issues reports on human rights conditions in specific countries and on specific topics; conducts on-site visits; and receives, reviews, and investigates complaints. The Inter-American Court on Human Rights, which not only has contentious jurisdiction but also is empowered to render advisory opinions with regard to the protection of human rights, was set up in 1980 and received its first contentious case in 1986.

The African Commission on Human and Peoples’ Rights was established in 1986 under the African Charter on Human and Peoples’ Rights to promote and protect human rights and peoples’ rights in Africa. Located in Banjul, the Gambia, it receives complaints from state parties, individuals, and NGOs, studies them, and sends its recommendations to the African Union. It also carries out research; organizes seminars, symposia, and conferences; conducts in-country visits; and issues reports regarding the human rights situations in particular countries or on specific themes.

The African Court on Human and Peoples’ Rights was constituted in 2004, after the necessary number of African countries had ratified the Protocol to the African Charter establishing the Court, to complement and strengthen the protective mandate of the African Commission. The Court has contentious jurisdiction over allegations of human rights violations by a state that has accepted the Court’s jurisdiction. The Court is also empowered to render advisory opinions on legal matters relating to the Charter or other human rights instruments. Though constituted in 2004, the African Court has yet to hear its first case; that will occur only once final rules of procedures are adopted. Experts expect final rules to be adopted in 2009.

the inter-american and african human rights systems

within a prescribed period of time, the Commission must, acting as petitioner, refer the matter to the Court on the individual’s or NGO’s behalf.

In light of the fact that in most cases NGOs and individuals will lack direct access to the African Court, Professor Frans Viljoen, Director of the Centre for Human Rights at the University of Pretoria Law School, urged that the rules for the Court follow the example set by the Inter-American human rights system, and require the Commission to refer cases to the Court if the state in question does not comply with a recommendation of the Commission. Professor Viljoen observed that, if such a procedure is adopted in the African human rights system, it will be essential that a means of monitoring states’ compliance with the Commission’s recommendations be put in place.

Complementarity of Functions within the Human Rights System

Carlos Ayala, President of the Andean Commission of Jurists in Lima, Peru, and a former chairman of the Inter-American Commission, pointed out that, for a human rights system to be strong and effective, the mandate of each component of the system must be clearly defined and the various components must complement rather than compete with one another. He noted that, in the Inter-American system, the Commission is not only the first procedural step for cases that may ultimately be sent to the Court, but is expected to be proactive insofar as it may conduct investigations and issue reports on its own initiative. The Court, on the other hand, should be only reactive, rendering decisions in cases brought to it.

Professor Viljoen commented that, in the African system, the Commission has a mandate both to promote and to protect human rights, while the Court’s mandate is exclusively to protect human rights. Professor Viljoen suggested that, with the establishment of the African Court, there may be a further strengthening of the

Continued on page 5


In Namibia, one of Africa’s youngest democracies, international

human rights law has already been domesticated: Article 144

of the country’s constitution states that all international legal

instruments ratified by Namibia automatically become part of

domestic law. According to Zeka Alberto, a lawyer with the Legal

Assistance Centre in Namibia and a roundtable participant, NGOs

have, based on that provision in the Constitution, used international

law to argue and win cases before Namibia’s High Court. He

nonetheless believes it is important for Namibian civil society to

engage with the Africa-wide human rights system. Here he explains

why.

Q: Given the fact that the Namibian legal system incorporates

international law into domestic law, what is the value for

Namibian NGOs to engage with the regional human rights

system?

A: Currently, the Legal Assistance Centre does not have observer

status before the African Commission on Human and Peoples’

Rights, but we are in the process of applying for it. It is important

for Namibian civil society to be engaged with the regional system

because we do not know when a new political administration

or members of the judiciary will become less receptive to

incorporating international law into domestic law. With observer

status, we can take matters before the Commission if they are not

successful in the domestic system. Being engaged in the regional

human rights system also helps us to foster relationships with

other organizations and gain greater knowledge and expertise

in defending human rights. We learn from advocacy and legal

strategies used across the continent, and we can form networks and

coalitions with these organizations.

Q: It is rare to find a state that is willing to broadly domesticate

the provisions of the international legal instruments it has

ratified. Why is the Namibian legal system so progressive?

A: Namibia was the last state in Africa to gain independence [in

1990]. When the Constitution was being drafted and then debated

people were very aware of the human rights abuses committed

under colonialism and they sought to address those issues in the

Constitution. The Constitution is based on the Universal Declaration

of Human Rights.

The Namibian legal system is strong and independent. It also has

a number of progressive foreign judges. Under colonialism, black

Namibians were not allowed to become lawyers and judges, so

once Namibia gained independence we had to recruit judges from

other common law countries to fill the gap.

Q: What are some of the major human rights issues the Legal

Assistance Centre is working to address?

A: Gender issues are a focus right now. We have advocated for law

reform to domesticate the Convention on the Elimination of all

Forms of Discrimination against Women (CEDAW). This has been

very successful. The Legal Assistance Centre was at the forefront

of advocating for the new Marriage Equality Act and Domestic

Violence Act. We are also working on land issues and environmental

development. We promote the land rights of minorities as well as

women and children, and we are advocating for rural communities

to benefit directly from mining activities in their areas. We also have

an AIDS law project that lobbies for policies like non-discrimination

against HIV-positive persons. Finally, we have a litigation center that

works with each of the thematic projects.

Q: What do you see as the role for NGOs in promoting and

protecting human rights? What are the challenges these

organizations face?

A: NGOs have an imperative role as defenders and watchdogs of

human rights. When there are strong watchdogs, the government

knows that their actions will be scrutinized so that puts pressure

on them. Many NGOs, however, face funding issues. How do you

continue to exist after donors pull out? These are issues that NGOs

continually deal with.

An interview with Zeka Alberto, Legal Assistance Centre

Focus on: The domestication of international human rights law in Namibia


Commission’s promotional mandate. Justice Niyungeko expressed the view that the African Commission and the African Court would function optimally only insofar as they were able to work collaboratively. He noted with approval that the two institutions had agreed to consult with each other regarding their respective rules of procedure to ensure that the two sets of rules were not in conflict.

Domestication of Human Rights Laws

Also critical to the effectiveness of a regional human rights system, according to roundtable participants, is that states incorporate the provisions of the international and regional human rights instruments to which they are party and the decisions of regional courts into their domestic laws. The process by which states incorporate international and regional laws and the decisions of regional courts into their domestic legal systems is often referred to as “domestication.” By domesticating an international or regional law, a state makes clear to its judiciary, legal practitioners, and citizens that the law has the same force as and can be enforced in the same way as a domestic law. Domestication of international and regional human rights law is important because it means that individuals and NGOs can seek redress for violations of their human rights in their states’ courts, which are more readily accessible to them than a regional court like the African Court or the Inter-American Court.

Compliance with Recommendations and Decisions

For a regional human rights system to be strong and effective, states must also comply with the determinations and decisions of the regional commission and court. Unfortunately, according to Wallace Kapaya, senior trial attorney at the International Criminal Tribunal for Rwanda, the rate at which states have complied with the recommendations of the African Commission has been disappointingly low. Livingstone Sewayana, Executive Director of the Foundation for Human Rights Initiative in Uganda, referred to a culture of impunity in Africa as one reason for the low level of compliance. Whether states comply with decisions of the African Court will, he said, ultimately depend on their “good will.”

Mr. Ayala noted that the level of compliance with orders of the Inter-American Court was similarly low and also cited a culture of impunity as a reason. He said that he had in recent years observed some improvement, however, commenting that states in Latin America were becoming somewhat more willing to comply at least with orders of the Court to pay compensation, though not with orders to make other types of reparations.

Other Factors

Other requirements cited as ones that must be met in order for a regional human rights system to be strong and effective included that it be adequately funded; that commissioners and judges be independent and competent; that recommendations and decisions of the human rights institutions be issued without undue delay, be in writing, and be publicly available; and that citizens be informed about their fundamental rights and be afforded due process and access to counsel when they seek to vindicate their rights.

Professor Frans Viljoen of the Centre for Human Rights at the University of Pretoria Law School; Sheila Keetharuth of the Institute for Human Rights and Development and the Coalition for an Effective African Court on Human and Peoples’ Rights; and Ibrahima Kane of the Open Society Initiative for East Africa.


The Role of Civil Society in Building Strong and Effective Human Rights Systems

In addition to sharing ideas about the requirements that must be met in order for a regional human rights system to be as strong and effective as possible, participants in the Arusha roundtable shared information about strategies civil society organizations have used in their efforts to help build human rights systems that meet those requirements.

Advocacy

Amadou Ali Kane of Rencontre Africaine pour la Défense de Droits de l’Homme in Senegal described the role civil society plays in developing the African human rights system as “putting pressure on governments to remind them of their responsibilities.” Absent such pressure, African governments may refuse to accept the jurisdiction or decisions of the new African Court, Mr. Kane said, from concern that doing so would impinge on their sovereignty.

Justice Niyungeko urged NGOs to continue their efforts to lobby states to sign the Protocol establishing the African Court and the declaration that permits NGOs and individuals to bring claims in the Court. Efforts of NGOs to lobby the African Union to ensure adequate funding for the Court and for the Commission will also be essential, according to George Kegoro, Executive Director of the International Commission of Jurists - Kenya. Imposing pressure on governments to comply with the recommendations of a human rights commission and the decisions of a human rights court can also be effective, according to Jorge Contesse, former Crowley Fellow at the Leitner Center of Fordham University School of Law in New York and currently Director of the Human Rights Center at Diego Portales University School of Law Santiago, Chile. Mr. Contesse referred in particular to the utility of “shaming” a noncompliant state in the international community. Similarly, Justice Fatsah Ouguergouz of the African Court said that the most important tool for encouraging enforcement with the decisions of the new African Court is the “mobilization of shame.”

Gastón Chillier of CELS; George Kegoro of the International Commission of Jurists-Kenya; and Catalina Diaz of the International Center for Transitional Justice in Colombia.

Roundtable participant Jorge Contesse of the Leitner Center of Fordham University of Law traced the evolution of the Inter-American human rights system. During the 1970s and 1980s, there were numerous dictatorships and authoritarian governments in Latin America. The regional human rights system proved effective as a way of “naming and shaming” those authoritarian governments, which was valuable particularly because the countries in question did not themselves have legal systems in place that could have addressed the human rights violations that were occurring. The first three cases heard by the Inter-American Court all dealt with massive, gross violations of human rights.

By the end of the 1980s there were only two dictatorships remaining in South America and even they were fading away, Mr. Contesse said. The focus of the Inter-American human rights system shifted to the building of solid and strong democratic institutions in a post-authoritarian scenario. Several of the cases brought at this time dealt with issues like freedom of expression and political participation. Recently, Mr. Contesse said, the system has been moving into a third phase, which involves demands for “redistribution and recognition.” In this phase, classes and groups that have traditionally been underrepresented or marginalized are beginning to use the system to achieve equal status with more privileged citizens.

evolution of the inter-american human rights system


Other roundtable participants urged civil society to lobby states to amend their constitutions or statutes to incorporate international and regional human rights law expressly. Catalina Diaz, Coordinator of the Reparations Team for the International Center for Transitional Justice office in Colombia, explained how civil society can advocate for the incorporation into local law of determinations of their regional human rights commission and court. She described a case brought by a woman in Brazil who had been the victim of domestic violence for 17 years. After the Inter-American Commission took the case and following advocacy efforts by civil society, Brazil adopted specific legislation dealing with violence against women. The legislation opened special courts and established special police units to deal with violence against women.

Research and Analysis

Civil society organizations and other stakeholders, including academia, can perform a useful role by conducting their own research and analysis on human rights issues and making recommendations for legal or procedural reform based on such research and analysis. Many of the presentations made at the roundtable took the form of such recommendations, including a presentation by Professor Viljoen in which he suggested how the rules of procedure for the new African Court should incorporate the interplay between the African Commission and the African Court and what criteria the Commission should use in determining when to refer cases to the Court.

Becoming the Human Rights Commission’s Partner

Ms. Diaz explained how civil society can help set a region’s human rights agenda by working closely with the regional human rights commission. She reported that in Latin America various NGOs meet on a regular basis to identify the human rights issues that are most pressing at the time, and then advise the Inter-American Commission of what they think the Commission should focus on over the next year. Latin America NGOs also

During a presentation he made at the roundtable, Gastón Chillier, Executive Director of Centro de Estudios Legales y Sociales,

described how efforts to provide equal status to women through the Inter-American human rights system have evolved over several years. Starting in the early 1990s, the Inter-American Commission began issuing reports on the topic of women’s rights, and since 1995 has included the status of women’s rights in every country report it prepares. The Commission has also created a special rapporteurship on women’s rights and, more recently, has started hearing cases involving women’s rights and developing a jurisprudence based on those cases. Relatively few cases dealing with women’s rights have been brought to the Inter-American Court, however.

Monica Mbaru, Progamme Manager for Africa at the International Commission of Jurists-Kenya, described the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which entered into force in 2005. This Protocol marked a milestone in the protection and promotion of women’s rights in Africa, creating new rights for women in terms of international standards. Adoption of such an instrument was necessary, according to Ms. Mbaru, because there are no specific protections for women’s rights in the African Charter itself. She expressed her hope that litigation on women’s rights issues, including before the African Court, would result in further strengthening of women’s rights. She also called for an increase in education and sensitivity training for judicial and law enforcement officers on gender issues.

Focus On: Protecting women’s rights

Monica Mbaru of the International Commission of Jurists - Kenya and Gastón Chillier of CELS.


frequently advise the Commission regarding what special reports it should issue and what on-site visits it should make. Gastón Chillier, Executive Director of Centro de Estudio Legales y Sociales (CELS) in Buenos Aires, Argentina, noted that his organization was in fact created for the purpose of organizing an in loco visit of the Inter-American Commission to Argentina in 1979 during the country’s military dictatorship there.

Strategic Litigation

Several civil society organizations represented at the roundtable regularly bring matters to their respective regional human rights system, selecting which matters or cases to bring based on factors including how important the issues raised are and how broad an impact a decision or other finding will have. Civil society organizations also undertake strategic human rights litigation at the domestic court level. In these cases they cite applicable international or regional human rights law in the briefs they submit. This is important, according to Loamba Moke of L’Association pour les Droits de l’Homme et l’Univers Carcéral in the Democratic Republic of the Congo, because judges at the domestic level may not even be aware that in human rights cases there are often international or regional treaties or conventions to which the state in question is subject that are relevant to the case. Sheila Keetharuth of the Institute for Human Rights and Development in the Gambia, Mr. Chillier, Ms. Diaz, and Mr. Kegoro all cited examples of cases in which their organizations had successfully used strategic litigation to educate domestic judges about regional and international human rights law.

Submitting Amicus Briefs and Seeking Advisory Opinions

There are also other ways in which civil society can influence the jurisprudence of a regional human rights court or commission. One is by submitting amicus briefs, a practice that Mr. Kapaya observed has been successful in the European and Inter-American human rights systems. Another, according to Professor Viljoen, may be by seeking advisory opinions from the regional human rights court.

Education

Donald Deya, Chief Executive Officer of the East Africa Law Society, pointed out that civil society organizations can make an important contribution to the advancement of human rights by informing citizens about their fundamental rights. The media can be a valuable partner in this regard, Mr. Contesse pointed out. Mr. Chillier

At the roundtable Justice Modibo T. Guindo, Vice President of the African Court, cited a creative example of how civil society has contributed to the strengthening of human rights in Africa. In Mali, thanks to the efforts of NGOs, every 10th of December is Human Rights Day. A forum is held at which representatives of human rights organizations and ordinary citizens question members of the government about the status of human rights in the country during the preceding year. In addition, NGOs organize legal clinics at which lawyers provide advice to citizens regarding how they can protect their rights.

human rights day in mali

Carlos Ayala of the Andean Commission of Jurists; Hon. Fatsah Ougergouz of the African Court on Human and Peoples’ Rights; Donald Deya of the East Africa Law Society; and Bahame Tom Nyanduga of the African Commission on Human and Peoples’ Rights.


said that his organization, CELS, works with legal practitioners to help them better understand international and regional legal standards. NGOs can help assure that human rights commissioners and judges possess the expertise they need to make informed decisions by organizing training programs and seminars for them.

Forming Coalitions

Ted Maynard, a partner of the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York and a member of the Vance Center Advisory Committee, urged human rights NGOs to consider forming coalitions and working together to achieve their common goals. He listed some of the benefits that can accrue from forming coalitions. The members of the coalition can share resources, information, and ideas. They maximize their impact by presenting a united front. They gain access to a larger universe of potential funders and to a larger pool of communities from which to draw other support.

In Africa, an organization called the Coalition for an Effective African Court on Human and Peoples’ Rights was formed in 2003 with the goal of making the African Court an effective and independent means of providing redress to victims of human rights violations and strengthening human rights protection in Africa at the regional and local level. Mr. Moke described the Coalition as a network of several different NGOs and independent national human rights institutions. It has five “focal points,” he said, each of which represents a subregion of Africa. The focal points convey information from their regions to a secretariat that makes decisions based on that input.

Mr. Kegoro urged that there be more coalition-building by human rights advocates across Africa, though he noted that the process is made difficult by linguistic challenges perhaps even more than by differences in legal systems. Justice Niyungeko suggested that NGOs work not only with each other but also with other “stakeholders,” including academia and the media.

Mr. Ayala described several examples of successful coalitions that have been formed to advance human rights in Latin America. His organization, the Andean Commission of Jurists, is a subregional NGO that holds seminars and workshops to provide training to legal practitioners, advocates, and government representatives on human rights issues. The Fora por La Vida is a coalition of NGOs in Venezuela that meets once a month to discuss strategies for promoting human rights, engaging in strategic litigation, and advocating for legal reform. The Center for Justice and International Law, or CEJIL, is a regional coalition of NGOs that represents victims of human rights violations before the Inter-American Commission and Court.

In June 2008, at the 11th African Union Summit in Sharm El-Sheikh, Egypt, the Assembly of Heads of State and Government of the African Union approved the merger of the African Court on Human and Peoples’ Rights with the African Court of Justice. Creation of the African Court of Justice, which was to have been the principal judicial organ of the African Union, was approved by a protocol adopted by the African Union in 2003 though never ratified by the number of countries necessary to make it effective.The protocol merging the two courts will go into effect after ratification by 15 African Union member states. The merged Court will be divided into a General Affairs Section and a Human Rights Section.

the african court of justice and human rights

Ted Maynard of Paul, Weiss, Rifkind, Wharton & Garrison LLP.


Sheila Keetharuth, Executive Director of the Institute for Human Rights and Development in the Gambia and chair of the Coalition for an Effective African Court on Human and Peoples’ Rights, discussed the Coalition’s next steps in promoting an effective human

rights system in Africa.

Q: What, in your mind, have been some of the successes of the Roundtable?

A: The key successes have been the level of dialogue and the calibre of participants who have been engaged with the issues at this conference. The sessions also allowed us to identify issues that we need to explore further, such as the relationship between the African Court on Human and Peoples’ Rights and the regional economic community courts. lt was a major success to have participants from the Inter-American system, justices of the African Court, representatives of the International Criminal Tribunal for Rwanda, and civil society members from across the continent at the conference and engaging with the issues facing the Court.

Q: What are the Coalition’s next steps as the Court finalizes its rules of procedure and prepares to begin accepting matters?

A: The Coalition is establishing a base in Arusha, where the Court is located, to serve as a clearinghouse to assist civil society in accessing the Court. Communication and travel is difficult across the African continent, so the Coalition will serve as an interface between civil society members and the Court by accessing and relaying documents, information, etc. In the long term we want to pursue capacity building activities for members, organize advocacy campaigns, and assist those approaching the Court to access pro bono support.

Q: What value can be derived from partnerships between legal practitioners and civil society members accessing the African and Inter-American human rights systems?

A: There are many similarities between the African and American contexts, both in terms of the continents’ physical and cultural diversity and their histories of political repression and human rights abuses. There is much we can learn from each other. Earlier at this conference, an African Court justice stated implementation of decisions would be left to the AU Council of Ministers, a political body. In the Inter-American system, however, files are kept open and the Court itself conducts follow-up to determine whether the decision has been implemented and reparations made. This may be something we want to advocate for in the African system.

Q: What are some of the challenges facing the Coalition at this point in the Court’s development?

A: The AU is considering a draft of a new protocol that will merge the African Court on Human and Peoples’ Rights with the proposed African Court of Justice. Once there is a new protocol, the Coalition will have to again lobby states to ratify the new protocol. For now, though, we need to focus on advocating for the Court to begin accepting cases soon.

Focus on: The Coalition for an Effective African Court on Human and Peoples’ Rights

Several participants commented on the importance of forming cross-regional as well as subregional and regional coalitions of human rights NGOs. Ms. Diaz urged participants to consider the formation of a coalition of African and Latin American human rights NGOs. Mr. Moke pointed out that coalitions with partners in the “Global North” may be a source of funding as well as of new ideas. Mr. Kegoro, while agreeing, commented that there is a lack of information on the part of northern NGOs regarding what credible organizations exist in Africa that may be potential partners. Wallace Kapaya of the International Criminal Tribunal for

Rwanda and Professor Chris Maina Peter of University of Dar es Salaam.


Harmonizing the Jurisprudence of the African Court with Subregional African CourtsParticipants at the Arusha roundtable also discussed a special challenge that human rights advocates in Africa are facing. Mr. Deya explained that, not only does the African Court have jurisdiction over claims of violations of human rights, but several subregional African courts also have such jurisdiction, if not expressly then by implication. These courts include the courts of the regional economic communities: the Economic Community of West African States (ECOWAS) Court of Justice, the Southern African Development Community (SADC) Tribunal, the Common Market of Eastern and Southern Africa (COMESA) Court of Justice, the East Africa Court of Justice, the Court of Justice of the Arab Maghreb Union, and the Economic and Monetary Community of Central Africa (CEMAC) Court of Justice.

Mr. Deya said that, because of the overlapping jurisdiction between the African Court and the subregional courts, it is possible that different courts will issue conflicting decisions in the same case or similar cases, opening the door to “forum-shopping” and leading to a lack of clarity about legal norms. He urged the creation of a coherent, Africa-wide human rights jurisprudence that all courts with jurisdiction over human rights issues would apply consistently. He noted that creating a common jurisprudence will be difficult in part because of the lack of legal reporting in Africa — often judges and lawyers do not even have access to the decisions of other courts — but suggested that representatives of the various courts start meeting on a regular basis to share jurisprudence and discuss ways of making the African human rights system more coherent. Rules are also needed, Mr. Deya said, regarding whether a petitioner must have exhausted its remedies at the subregional court level before it can take a case to the Commission or the case can be referred to the African Court.


Roundtable participants Ibrahima Kane, head of the African

Union Advocacy Program for the Open Society Initiative for

East Africa, and Carlos Ayala, President of the Andean Commission

of Jurists and a former commissioner of the Inter-American

Commission for Human Rights, discussed the relationship between

a commission and a court in a regional human rights system.

Q: The Inter-American and African human rights systems are both

made up of a commission and a court. What do you see as being

the proper relationship between the two?

Mr. Kane: The African system has a quasi-judicial body (the African

Commission) and a judicial body (the African Court). Currently,

the quasi-judicial body is not very effective: only 14 percent of its

decisions have been implemented. Because of this track record it is

important for the continent to have a judicial body that is stronger

on enforcement.

The Commission is currently mandated to both promote and

protect human rights. It promotes human rights through country

visits and fact finding missions. It protects human rights by hearing

and ruling on cases. The Court, on the other hand, only has a

protective mandate. In my opinion, we need a system that both

promotes and protects. However, when the Court is fully functional,

the Commission should assume solely a promotional function

and delegate the protective function to the Court. In practice that

would mean that only the Court would hear cases. The Court’s

protective mandate will be enhanced by the merger of the Court

with the proposed African Court of Justice. Under this proposal,

the Commission would supplement the work of the Court by

undertaking investigations on key human rights issues that could

then shed light on cases before the Court.

Mr. Ayala: From the Inter-American perspective, the Commission

has played an important role in protecting human rights. The

Commission does have a vital promotional mandate under

which it conducts in-country visits to learn about human rights

situations. It then issues reports that relate its findings and offers

recommendations and conclusions. Because of the combination of

facts and recommendations, the reports play both a protective and

promotional role with regard to human rights. Rapporteurs also

conduct investigations and are important in bringing human rights

issues to the attention of the Commission and the public.

The Commission has also played an important role in hearing

cases. Every year it has over 1,000 cases in process. In these cases

it reviews admissibility and issues a final report on the matter.

When it finds a violation of human rights it refers the matter to

the Court. As the jurisprudence of the Inter-American system has

expanded, the number of cases coming before it has increased. The

Court does not have the capacity to review all of the cases itself

so the Commission plays a vital screening function. In addition to

reviewing admissibility the Commission will also withhold cases

deemed weak or concerning areas in which the Court is not ready to

issue progressive jurisprudence. If the Court were to receive cases

directly it would need a significantly enhanced budget of about

US$100 million and a staff of at least 80 lawyers.

I am in favor of individuals’ access to the Court. But in Latin America

there are so many cases stemming from the number of massive

and gross human rights violations on the continent. There are too

many cases for the Court to currently handle given its capacity. The

European Court of Human Rights has faced such a problem as the

number of countries under its jurisdiction increased in the 1990s

and early 2000s as did the number of cases.

Mr. Kane: It is true that the European system is struggling with the

number of matters it receives. The European Court has a backlog of

60,000 cases. It is trying to change the rules to limit access, such as

only accepting cases that would add to the Court’s jurisprudence,

but it is facing resistance from some European countries.

Focus On: The relationship between a regional human rights commission and a regional human rights court


The African and Latin American participants in the Arusha roundtable learned that sharing ideas and

collaborating with one another could yield benefits to all of them, and left Arusha eager to continue the dialogue they had begun there. The Vance Center arranged a follow-up roundtable in Buenos Aires in October 2008, during the time of the International Bar Association’s Annual Meeting there. At this roundtable a small number of African and Latin American human rights advocates who were attending that meeting discussed some concrete ways in which they could share ideas and collaborate. The names of the participants are listed on Attachment B to this report. The sponsors of the Buenos Aires roundtable, in addition to the Vance Center, were Centro de Estudios Legales y Sociales (CELS) and the East Africa Law Society.

Participants made several suggestions regarding ways in which African and Latin American human rights advocates could continue to share ideas and information and on projects. Raj Daya, Chief Executive Officer of the Law Society of South Africa, proposed that a conference be held to discuss specific topics of relevance to human rights advocates in both regions.

Participants shared ideas about possible topics for discussion at such a conference. These included strategies for using a human rights system to advance particular goals, such as strengthening democratic institutions and

Roundtable on Ways in Which Human Rights Lawyers from Africa and Latin America Can Share Ideas and Collaborate

Buenos Aires, ArgentinaOctober 13, 2008

Roundtable participants Andrea Pochak and Don Deya described some of the challenges human rights advocates in their respective regions are facing. One challenge in Latin America, Ms. Pochak said, is to make sure that the Inter-American Commission does not limit its thematic agenda to cases on the docket of the Inter-American Court. Because of delays in the system, those cases may involve issues that were current 10 or 15 years ago, she said, rather than the human rights issues that are most pressing today, such as racial discrimination, gender violence, and other violations of the rights of specific social groups. Ms. Pochak urged that human rights advocates look at sources other than the Court’s current docket in advocating for what should be included on the Commission’s agenda. She also urged that there be a thorough examination of other factors that may be affecting the legitimacy of the Inter-American human rights system, including the effect of delays on petitioners and enforcement difficulties.

Mr. Deya listed several challenges being faced by human rights advocates in Africa. These included determining how the African human rights system can be adapted to make it a tool for strengthening democracy and for dealing with issues relating to transitional justice. Ensuring access to the system for citizens of all African states, and access to the African Court for individuals and NGOs in particular, is another continuing challenge, he said.

challenges to the inter-american and african human rights systems

Andrea Pochack of CELS and Monica Pinto of the University of Buenos Aires.


principles; combating corruption and encouraging governmental accountability; promoting the rights of specific disadvantaged groups such as women or indigenous people and other minorities; and expanding access to information. Also suggested as a topic was the proper interplay between a regional human rights commission and court; that is, how can human rights advocates help ensure that regional human rights commissions and courts complement and strengthen rather than compete with one another? Several participants indicated that they could benefit from learning from their counterparts about possible strategies for encouraging states to comply with recommendations of a human rights commission or decisions of a human rights court. Other suggestions for conference topics included ways in which the capacity of lawyers to handle human rights matters can be strengthened, ways in which human rights law can be incorporated into law school curricula, and strategies for most effectively using all the elements of a human rights system, including not only the applicable regional commission and court but also subregional and international bodies with human rights jurisdiction.

Mr. Chillier suggested that papers from experts in the two regions on the subject of regional human rights systems be collected in a journal such as Sur – International Journal on Human Rights, a biannual journal published in English, Portuguese, and Spanish. Mr. Maynard urged the creation of an online listserv or private discussion forum as a way of facilitating exchanges of ideas among human rights experts and advocates in Africa and Latin America. Elizabeth Millard of the Vance Center noted that the online network administered by the Vance Center (VanceNet.org) could be used for this purpose. Femi Falana, President of the West African Bar Association, commented that it would be useful if there were a way in which lawyers in Africa and Latin America could have ready access to recommendations and decisions made by the human rights commission or court in the other region.

Joint training programs would be useful not only for members of the human rights commissions and courts, according to Andrea Pochak, Deputy Executive Director of CELS, and also for those responsible for administering justice. Olawale Fapohunda, Managing Partner of the Legal Resources Consortium in Nigeria, suggested that lawyers be trained as well.

Olawale Fapohunda of the Legal Resources Consortium of Nigeria and Raj Daya of the Law Society of South Africa.


Noting that human rights practitioners in the two regions should collaborate not only in order to share ideas and information, but also in order to increase their impact as advocates for human rights, Mr. Chillier proposed that a South-South coalition of human rights experts be set up to present issues to the United Nations Human Rights Council. Elise Colomer, Director of the Latin America Program at the Vance Center, urged that consideration be given to other ways in which human rights advocates from the two regions might engage in joint advocacy efforts. Mr. Deya noted that, as had been discussed at the Arusha roundtable, individuals and NGOs lack access to the regional human rights courts in Africa and Latin America, and urged that human rights practitioners from the two regions collaborate in advocating for expanded access.

Mr. Ayala proposed that lawyers from each region participate in writing amicus briefs in cases being brought in the other region. Juan Pablo Olmedo, co-founder of Fundación Pro Bono, founder and President of ProAcceso-Chile and a member of the Transparency Council recently set up by the government of Chile, suggested identifying one or more small, discrete projects on which human rights practitioners from the two regions could collaborate, to monitor access to information, women’s rights, or governmental accountability, for example.

Setting up opportunities for human rights advocates from different continents to work with or meet one another is important not only because it facilitates the exchange of information and ideas, according to Mónica Pinto, professor of international law and human rights law at the University of Buenos Aires, but also because it contributes to the creation of a “community of like-minded people.” She said that the existence of such a community helps make human rights more visible and more likely to be discussed at all levels of society.


Attachment A

List of Participants

Africa

Joyce Kevin Abalo East Africa Law Society

Mary Goretti Ajot MIFUMI, Uganda

Maureen Akoth East Africa Law Society

Zeka Alberto Legal Assistance Centre, Namibia

H.W. Stella Amabilis Magistrate; Foundation for Human Rights Initiatives, Uganda

Otiende Amollo East Africa Law Society

Charles Ariko The New Vision Newspaper, Uganda

Chafi Bakari African Commission on Human and Peoples’ Rights

Hon. Justice Dennis Byron President of the UN International Criminal Tribunal for Rwanda

Allesandro Caldarone UN International Criminal Tribunal for Rwanda

Wangeci Cheggy Kenya Human Rights Commission

John Chigiti International Commission of Jurists – Kenya

Donald Deya East Africa Law Society

Anthony Diallo UN International Criminal Tribunal for Rwanda

Onyinychi Emeruwa Alliances for Africa, Nigeria

Francois Godbut East Africa Law Society

James Gondi International Commission of Jurists – Kenya

Hon. Justice Modibo T. Guindo Vice President of the African Court on Human and Peoples’ Rights

Saira Gracias East Africa Law Society

Michael Kabai Ministry of Foreign Affairs, South Africa

Njeri Kagucia East Africa Law Society

Amre Kamal Sudan Human Rights Monitor

Amadou Ali Kane Rencontre Africaine Pour la Défense des Droits de l’Homme, Senegal

Roundtable on Strategies to Promote Human Rights through

Regional Human Rights Systems

Arusha, Tanzania, March 30 - April 2, 2008


Ibrahima Kane Open Society Initiative for East Africa

Wallace Kapaya UN International Criminal Tribunal for Rwanda

Wendy Kasujja Foundation for Human Rights Initiatives, Uganda

Sheila Keetharuth Institute for Human Rights and Development, the Gambia

George Kegoro International Commission of Jurists – Kenya

Robert Kerongo East Africa Law Society

Mugambi Kiai Open Society Initiative for East Africa

Selemani Kinyunyu Makumira University, Tanzania

Leda H. Limann African Court on Human and Peoples’ Rights

Beth Luzuka African Court on Human and Peoples’ Rights

Bongani C. Majola Deputy Prosecutor, UN International Court and Tribunal for Rwanda

Prof. Chris Peter Maina Faculty of Law, University of Dar es Salaam

Monica Mbaru International Commission of Jurists – Kenya

Nobuntu Mbelle Coalition for an Effective African Court on Human and Peoples’ Rights

Loamba Moke L’Association pour les Droits de l’Homme et l’Univers Carcéral, Democratic Republic of the Congo

Brooke Montgomery Tanganyika Law Society

John Mudakikwa Great Lakes League for Human Rights

Jack Muruiki International Commission of Jurists – Kenya

Tarisai Mutangi Centre for Human Rights, University of Pretoria

Hon. Judge Lee S. Muthaga UN International Criminal Tribunal for Rwanda

Sheila Muwanga Foundation for Human Rights Initiatives, Uganda

Elias Mwashiuya Lawyers’ Environmental Action Team, Tanzania

Cheggy Mziray Tanganyika Law Society

Stella Ndirangu International Commission of Jurists – Kenya

Hon. Justice Gérard Niyungeko President of the African Court on Human and Peoples’ Rights

Paul Ng’arua UN International Criminal Tribunal for Rwanda

Bahame Tom Nyanduga African Commission on Human and Peoples’ Rights Priscilla Nyokabi International Commission of Jurists – Kenya

Bobi Odiko East Africa Law Society

Hon. Fatsah Ougergouz Judge of the African Court on Human and Peoples’ Rights


Prof. Christian Roschman Konrad Adenauer Foundation

Ladislaus Kiiza Rwakafuuzi Legal Practitioner, Uganda

Robinah Rwakoojo Ministry of Justice and Constitutional Affairs, Uganda

Ruth Nalugo Sekindi Uganda Human Rights Commission

Livingstone Sewanyana Foundation for Human Rights Initiatives, Uganda

Rita Kyala Shako International Commission of Jurists – Kenya

Marceau Sivieude International Federation for Human Rights, Kenya

Nyamabo Tshamulamba East Africa Law Society

Sisko M. Tshikala East Africa Law Society

Professor Frans Viljoen Centre for Human Rights, University of Pretoria

Chege Wangui East Africa Law Society

Peter Wendoh Konrad Adenauer Foundation

Americas

Carlos Ayala Andean Commission of Jurists

Jorge Contesse Fordham University School of Law, United States

Gaston Chillier Centro de Estudios Legales y Sociales, Argentina

Elise Colomer Vance Center for International Justice

Catalina Diaz International Centre for Transitional Justice, Colombia

Edwin Maynard Paul, Weiss, Rifkind, Wharton & Garrison LLP, United States; Vance Center for International Justice

Elizabeth Millard Vance Center for International Justice

Joan Vermeulen Vance Center for International Justice

Alyson Zureick Vance Center for International Justice


Attachment B

List of Participants

Africa

Raj Daya Chief Executive Officer, Law Society of South Africa

Donald Deya East Africa Law Society

Femi Falana President, West African Bar Association

Olawale Fapohunda Managing Partner, Legal Resources Consortium, Nigeria

Tom Ojienda President, East Africa Law Society

Americas

Carlos Ayala President, the Andean Commission of Jurists, and former President, Inter-American Human Rights Commission

Gastón Chillier Executive Director, Centro de Estudios Legales y Sociales

Elise Colomer Head of Latin America Program, Vance Center for International Justice

Edwin Maynard Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP, and Member, Vance Center for International Justice Committee

Elizabeth Millard Consultant to Vance Center for International Justice

Juan Pablo Olmedo Co-founder of Fundación Pro Bono and founder and President of ProAcceso-Chile

Mónica Pinto Lawyer and President of Eudeba, University of Buenos Aires

Andrea Pochak Deputy Executive Director, Centro de Estudios Legales y Sociales (CELS)

Paola Garcia Reyes Centro de Estudios Legales y Civiles

Roundtable on Ways in Which Human Rights Lawyers from Africa and

Latin America Can Share Ideas and Collaborate

Buenos Aires, Argentina, October 13, 2008

Vance Center Committee

Antonia E. Stolper, Chair, Shearman & Sterling

S. Todd Crider, Vice Chair, Simpson Thacher & Bartlett

Carrie H. Cohen, U.S. Attorney’s Office – SDNY

Michael A. Cooper, Sullivan & Cromwell

Evan A. Davis, Cleary Gottlieb Steen & Hamilton

Hon. George B. Daniels, United States District Court – SDNY

Michael L. Fitzgerald, Milbank, Tweed, Hadley & McCloy

Andres V. Gil, Davis Polk & Wardwell

Michael J. Gillespie, Debevoise & Plimpton

Jeffrey B. Gracer, Sive, Paget & Riesel

R. Scott Greathead, Wiggin & Dana

Steven M. Kahaner, Marste & Co.

Lynn Kelly, City Bar Justice Center

Loretta E. Lynch, Hogan & Hartson

Edwin S. Maynard, Paul, Weiss, Rifkind, Wharton & Garrison

Cathleen McLaughlin, Allen & Overy

Barbara Mendelson, Morrison & Foerster

Megan Moloney, Chair, African Affairs Committee, New York City Bar

Eruch P. Nowrojee, Credit Suisse

Eric Ordway, Weil, Gotshal & Manges

Paul T. Schnell, Skadden, Arps, Slate, Meagher & Flom

David J. Sorkin, Kohlberg Kravis Roberts & Co.

Cyrus R. Vance, Jr., Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C.

EX OFFICIO

Patricia M. Hynes, President, New York City Bar

Barbara Berger Opotowsky, Executive Director, New York City Bar

a partnership between africa and latin america to … · a partnership between africa and latin...

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