.png)
ANALYSIS Prof. Dr Bernd Kannowski 09 July 2021
What is decolonisation? By decolonisation we mean the processes of replacement that lead to the end of colonial rule, but above all the social, cultural, legal and economic developments that follow state independence. The process of decolonisation can be divided into five phases, with many considering the third as the decisive one. This is about building the future of the former colony. Closely related is the concept of nation-building, which is about establishing the sense of belonging to a nation that is only just emerging.
All this now lays several decades in the past for the former colonies in Africa. If the phenomenon of nation-building already existed in the more distant past, then great rulers often sought to advance national unification by codifying new law. Hammurabi from the ancient Orient might be mentioned here. Of course, and perhaps above all, the Romans, and their imitation by the Germanic peoples. However, we do not have to go that far into the past. Frederick the Great of Prussia is to be listed here as well. And last but not least, Napoleon of course.
As a consequence, doing something like this seems anything but far-fetched. Did that also happen in Africa? The African states often kept the legal systems of the former colonial powers in the immediate period after independence, and in many cases they remain an integral part of statutory law to the present day. For example, British common law still applies in many African countries. Thus, English Supreme Court decisions also have an effect in Ghana for instance. But there have also been African emancipation projects in the field of law. In the context of decolonisation of the legal system, the Banjul Charter, which was adopted in 1981 and came into force in 1986, is perhaps the most important one. There is no doubt that typically African values are implemented here, which cannot be found in this form in any other human rights declaration in the world. It is already clear from the name of the declaration:[1] it is not only about individual rights, but also about those of collectives. According to African values, the individual is not the sole bearer of rights. He or she is also a member of the community. The fact that the Banjul Charter came into being in the way it did has a global political background that has at most little to do with decolonisation like the East-West conflict and the Cold War in particular.[2] But be that as it may, it is certainly wrong to associate the African values reflected in the Banjul Charter solely with external influences of the political situation at the time.
Collective Human Rights making their way into the Supreme Court
However, it is highly questionable whether the collective rights enshrined in the Banjul Charter can have any significant practical meaning at all. I would like to take a brief glance at the rare occasion of a Supreme Court decision in which a collective human right has ever had a decisive impact. It is a decision of the court of the Economic Community of West African States (ECOWAS) from 2012.[3] The court had to deal with serious damage caused by a ruptured oil pipeline in the Niger Delta in 2001 and 2008. The leaking oil contaminated the landscape and water over a wide area, where the livelihood of local indigenous Ogoni people is dependent on fishing. As a consequence of the oil poisoning the fish died or became inedible. . Even worse, there was no more drinking water.
SERAP, a NGO registered in Nigeria,[4] claimed among other things the collective rights of the Ogoni before the ECOWAS court. The plaintiffs alleged violations of numerous articles of the Banjul Charter as well as other human rights instruments. The court, however, only examined a violation of Article 24 of the Banjul Charter. Accordingly, the court could focus on the heart of the dispute, which the judges saw in Article 24 of the Banjul Charter.[5] This provision grants a collective right to a clean environment. A violation of this right by the Nigerian state, which had to supervise the oil company or was even involved in the business itself, proved to be evident. But then the typical problems of collective rights began.
Compensating Irreversible Damages
The plaintiffs had demanded 1 billion US-dollars as compensation for the unimaginable damages. This is certainly not too high a figure. Contrarily, it is probably much too low for the repair of all the damage, if this is at all possible. Therefore, the amount of the claim was surely not the problem. The court nevertheless dismissed the claim because the plaintiff could not name any specific injured party to whom payment would have had to be made to.[6] What the court did do, however, was to rule that the Federal Republic of Nigeria had to repair the damage within the shortest possible time and to take all measures to prevent such events in the future.[7] From a German lawyer’s point of view, this is rather vague a wording for a court decision since it does not specifically express what the losing party actually has to do. In fact, the Nigerian government did not do anything, at least for quite a long time. Here lies the next problem, albeit its connection to collective rights in particular is only narrow. It is rather a general problem when it comes to decisions of international law courts. It is about the effectiveness and enforceability of their rulings. And this is clearly not just an African problem.
In cases involving indigenous peoples whose contacts with the state legal system are to say the least extremely limited in their daily lives, the question of who, if anyone, may bring their rights in court is obviously of high practical relevance. On this point, the jurisdiction of the ECOWAS Court seems ambiguous. It is clear, however, insofar as the court unmistakably rejects the extreme position that a popular action is always admissible for human rights violations. In 2014, SERAP (again, SERAP) took the position that it could represent without prior authorisation by relatives, the interests of young people who were killed during a violent demonstration against human rights violations whilst they undertook their National Youth Service. [8]
The court found clear words on this: “In view of the jurisdiction of the Court and eligibility of litigants to access this Court in cases of human rights violation, the question, which needs to be addressed, is whether a non-governmental organization (NGO) which suffered no human right violation, can access the Court on behalf of alleged victims, without any authorization from the victims or their close relatives. The answer can only be a negative one.” In fact, I find SERAP’s legal opinion on this point more than daring for a whole range of reasons. Thus, the court’s contrary view undoubtedly deserves full approval so far.[9] However, the court also said it was aware that in some cases this had to be seen differently. And this is precisely where the ambiguities lie.
Realizing African Jurisprudence
So what cases are these? It is necessary – so the court opines – that the NGO makes claims for collective interests. Doing so, the court explicitly refers to its 2012 decision in SERAP v. Nigeria, which I dealt with earlier. However, this should only be possible under exceptional circumstances; like when it comes to avoiding that a harmful action by a state (as perpetrator) remains completely without consequences and that responsibilities can no longer be clarified. This should only apply in cases of serious human rights violations (whatever is meant by that). The court obviously talks about some kind of last resort for the very weak in cases of particularly grave injustice. In terms of legal methodology, this is to be achieved – so the court – by “a more comprehensive concept of victim laid down in Article 10 (d) of the Protocol” (whereas the word “victim” however is not to be found there).[10] Unfortunately, these criteria are so diffuse that they are extremely unlikely to be of any use in practice. Needless to say, this is paramount for any legal system. In order to realise a truly African and effective jurisprudence on collective rights, it is critical that these principles are clarified in a systematic way. Otherwise, African values will remain mere theory. And this would be truly a shame.
[1] “African Charter on Human and Peoples’ Rights”.
[2] A brilliant though unfortunately little known treatise on the history of the Banjul Charter is Nathaniel Rubner, The origins of the 1981 African Charter on Human and Peoples‘ Rights, doctoral thesis (University of Cambridge, 2011).
[3] SERAP v. Nigeria, JUDGMENT N° ECW/CCJ/JUD/18/12 (ECOWAS, Dec. 14, 2012); a previous decision on the competence of court is SERAP v. Nigeria, Ruling, Suit No: ECW/CCJ/APP/08/09 and RUL. No: ECW/CCJ/APP/07/10 (ECOWAS, Dec. 10, 2010). – ECOWAS Court decisions always have a Suit Number and a Judgement Number. In the decision Suit No. ECW/CCJ/APP/08/09, Rul. No. ECW/CCJ/APP/07/10 of December 2010, the court dealt only with “Preliminary Objections”. It found that the plaintiff is a legal person and has standing to sue. It also ruled that the defendant private companies were not subject to its jurisdiction. The plaintiff then amended his application. The defendants were now the President and the Attorney General of Nigeria. Apparently, the court assigned a new suit number as a result of the amendment.
[4] https://serap-nigeria.org/.
[5] SERAP v. Nigeria, JUDGMENT N° ECW/CCJ/JUD/18/12 (ECOWAS, Dec. 14, 2012), under count 92 and 98.
[6] SERAP v. Nigeria, JUDGMENT N° ECW/CCJ/JUD/18/12 (ECOWAS, Dec. 14, 2012), under count 115, 116 and 117.
[7] SERAP v. Nigeria, JUDGMENT N° ECW/CCJ/JUD/18/12 (ECOWAS, Dec. 14, 2012), under count 121.
[8] Suit no ECW/CCJ/APP/09/11, ruling no ECW/CCJ/RUL/03/14, of 13/02/2014: “Plaintiff, however, contended that, on the issue of locus standi, there is no need to show consanguinity or affinity relationship with the deceased youths before bringing an action on their behalf, as anybody, any association, any group or individual can bring an action for enforcement of fundamental rights in any Court of law.”
[9] A similar position the court took in a recent decision from 26 April 2021, reported by the Guardian (https://guardian.ng/news/ecowas-court-trashes-seraps-suit-against-fg-over-rights-violation/). The plaintiff was again SERAP. The full text of the decision was not available to me at the time of publishing this contribution.
[10] Article 10 (Access to the Court): “Access to the Court is open to the following: … d) Individuals on application for relief for violation of their human rights; the submission of application for which shall: i. Not be anonymous; nor ii. Be made whilst the same matter has been instituted before another International Court for adjudication …”.