Report of Seminar Series hosted by the Thabo Mbeki Foundation, the South African Human Rights Commission and Center for Human Rights on “Global and Regional Accountability Mechanisms: The Malabo Protocol and the African Commission on Human and People’s Rights”.

September 11 – 12, 2019

Pretoria, South Africa

Having been concerned with the various threats to our human rights system on the African continent, the Thabo Mbeki Foundation partnered with the South African Human Rights Commission (SAHRC) and the Center for Human Rights to interrogate the status of the African Court on Human and People’s Rights, as well as the independence of the African Commission on Human and People’s Rights.

On the 11th and the 12th of September 2019, the organisations hosted two Seminars to deal with the African Court on Human and People’s Rights, as well as to deal with the various issues plaguing the continent, with a focus on the independence of the African Commission on Human and People’s Rights.

The seminars were held at the Protea Fire and Ice Hotel in Pretoria. Those in attendance on the first day included the Chairperson of the South African Human Rights Commission, Adv Bongani Majola; Deputy Minister of Justice and Constitutional Development, Hon. John Jeffery; former Deputy Minister in the Department of International Relations and Cooperation, Hon. Luwellyn Landers; former Vice President of the African Court on Human and Peoples’ Rights (African Human Rights Court) and current Tax Ombud of South Africa, Judge Bernard Ngoepe who gave the keynote address; former Commissioner of the African Commission, Professor Barney Pityana as well as Dr Mwiza Nkhata, the Principal Legal Officer at the African Court on Human and Peoples’ Rights as well as members of Civil Society. 

11 September:

A Seminar on the African Court on Human and People’s Rights and the African Court of Justice and Human Rights, following South Africa’s proposed withdrawal as a member state of the International Criminal Court

The Seminar of the 11th of September 2019 was mainly to discuss the African Court on Human and People’s Rights and the African Court of Justice and Human Rights. A recurring proposition by some African leaders and governments is that Africans should withdraw from the Rome Statute and, therefore, from the International Criminal Court (“ICC”). The reasons given for such a stance include that, the ICC is biased and has been targeting African leaders; that, therefore, it does not make sense for Africans to continue participating in an unjust system intended to target African leaders. The natural question that arose from such a stance is the following: how will African governments (and more importantly, the African Union) ensure the protection, respect and promotion of the African people’s human rights, in a context where there will be no international court that has jurisdiction over their leaders?

In answer to this question, the African Union adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (“Malabo Protocol”). The Protocol extends the jurisdiction of the yet to be established African Court of Justice and Human Rights (ACJHR) to crimes under international law and transnational crimes. Therefore, if the Malabo Protocol comes into force, the ACJHR will have jurisdiction to hear crimes that include genocide and crimes against humanity. The ACJHR would thus operate in a manner akin to that of the ICC, dealing with some of the crimes that the ICC has to deal with. 

Four specific issues were discussed: 

First, South Africa’s relationship with the International Criminal Court (ICC). South Africa has attempted to and again publicly announced its intention to withdraw from the ICC. The government has indicated its intention to resuscitate the International Crimes Bill, intending to engage in nationwide public consultations on it. This process may culminate in South Africa reinstating its withdrawal from the ICC. Many concerns were raised about the possibility of South Africa’s withdrawal.

Second, and related to the first, is the concern that South Africa has not ratified the Malabo Protocol. Does the Malabo Court provide an alternative to the ICC? 

Third, concerns that South Africa has not made the declaration under Article 34(6) of the Protocol establishing the African Court, which allows individuals and organisations to access the African Court directly. 

Lastly, the relationship between the African Union (AU) human rights organs, in particular between the African Court and the African Commission on Human and Peoples’ Rights (African Commission), was also considered. In this context, the relationship between sub-regional courts and the African Court was touched upon. As part of this discussion, the demise of the SADC Tribunal received some attention. 

These four issues present a problem for the protection of human rights at the continental level given South Africa’s position.

12 September 2019:

A Seminar to discuss issues related to the Independence of the African Commission on Human and People’s Rights

The second seminar of the 12th of September had a much shorter, albeit very important mandate: to discuss issues related to the independence of the African Commission on Human and People’s Rights (“the Commission”). In this regard, the former Commissioners who were present, including Professor Barney Pityana, discussed the various challenges that they often faced during their tenure as Commissioners, which thus threatened the Independence of the Commission. 

The Thabo Mbeki Foundation as well as the SAHRC raised concerns following Decision 1015 of the Executive Council, in which it was stated inter alia that, “the independence of the [Commission] is of a functional nature, and not independence from the same organs that created the body, while expressing caution on the tendency of the [Commission] acting as an appellate body, thereby undermining national legal system[s]”. 

The Thabo Mbeki Foundation as well as the SAHRC recognize the importance and positive nature of some of the decisions that are found in the Executive Council’s Decision 1015, including the need to “strengthen dialogue, cooperation and collaboration” between the African Union organs and the African Commission as well as the call on state parties to submit their periodic reports and participate actively in sessions of the African Commission. 

It could, however, not be denied that the implications of the other parts of Decision 1015 are threatening to the independence of the Commission, and therefore, to the entire human rights system on the continent.

Way forward:

It was resolved at both Seminars to create two separate Ad hoc platforms: the first will be responsible for dealing with the concerns raised in the first Seminar held on the 11th of September; mainly on the issues related to the Malabo Protocol and the way forward for the AU in relation to our membership to the ICC. The second Committee will be responsible for dealing with the issues surrounding the Independence of the African Commission. Both these Committees will be under the leadership of the SAHRC, in partnership with the Thabo Mbeki Foundation.

To execute the above, a memorandum should be drafted, highlighting the main issues that the two meetings had identified, to be used as a tool to engage with the Department of Justice and Constitutional Development and the Department of International Relations and Cooperation. In this process, engagements with other stakeholders, such as the Department of Women, Youth and Persons with Disabilities should be included, to deal with the issue of ongoing violations against women. 

In addition, it was agreed:

  • To find strategies to deal with donor fatigue to support CSOs who are carrying out lobby and advocacy activities;
  • To explore linkages with other platforms like the SADC Parliamentarian Forum which is currently working on model legislation;
  • To participate in and encourage the participation in public engagements on the International Crimes Bill.
  • To make use of the strategic strengths from among the participants.
  • To engage with the ANC on the resolutions on Malabo Protocol and ICC.
  • To share a report of the Seminar with the SADC Secretariat;
  • To engage with the Africa Forum comprised of former African Heads of States who have an advisory role with the Africa Union by placing these issues before them for advising heads of state.

Annexe: List of Participants

  Name

  Organisation

  Hon Deputy Minister John Jeffery

  Department of Justice

  2.

  Judge Bernard Ngoepe

  Tax Ombudsman

  3.

  Ms Corlett Letlojane

  Human Rights Institute of SA

  4. 

  Prof Frans Viljoen

  Centre for Human Rights, University of Pretoria

  5. 

  Mr Jonathan Kaunda

  African Peer Review Mechanism

  6. 

  Prof Annika Rudman

  University of Stellenbosch

  7. 

  Dr Mispa Roux

  University of Johannesburg

  8. 

  Ms Sabreen Hassen

  University of Johannesburg

  9. 

  Mr Ibrahima Kane

  Open Society Foundation

  10.

  Dr Mwiza Nkhata

  African Human Rights Court

  11.

  Prof Barney Pityana

  Thabo Mbeki Foundation

  12. 

  Adv Bongani Majola

  SAHRC

  13. 

  Adv Tseliso Thipanyane

  SAHRC

  14.

  Dr Martin Nsibirwa

  SAHRC

  15.

  Ms Fadlah Adama

  SAHRC

  16.

  Mr Max Boqwana 

  TMF

  17. 

  Hon Luwellyn Landers

  Former Deputy Minister of DIRCO

  18.

  Mr Mongezi Ntanga

  National Association of Democratic Lawyers

  19. 

  Mr Stanley Nyamanhindi

  SADC Lawyers Association

  20.

  Ms Susan Mutambasere

  Centre for Human Rights, University of Pretoria

  21. 

  Mr Dieu-donne Wedi-Djamba

  Centre for Human Rights, University of Pretoria

  22.

  Adv Elizabeth Picarra

  Department of Justice

  23. 

  Prof Victor Dankwa

  Ghana

  24. 

  Mr Siyabulela Gebe

  Thabo Mbeki Foundation

  25.

  Mr Gushwell Brooks

  SAHRC

  26. 

  Dr I Botha

  Department of Justice

  27.

  Ms Motlatsi Tsiane

  TMF

  28.

  Mr Dirk Swart

  SAHRC

  29.

  Ms Sibongiseni Tula

  SAHRC

  30.

  Mr Bright Gunde

  SADC Lawyers Association

  31.

  Ms Mokgadi Nyuswa

  SAHRC

  32.

  Mr Sinalo Makapela

  SADC Lawyers Association

  33.

  Mr Puseletso Sauli

  TMF

  34.

  Ms Sanji Mmasenono Monageng

  Former Commissioner, Botswana

  35.

  Ms Salamata Sawadogo

  Former Commissioner, Burkina Faso

  36.

  Mr Andrew Ranganayi Chigovera

  Former Commissioner, Zimbabwe

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