State compliance with and influence of reparation orders by regional and sub-regional human rights tribunals in five African states

Abstract

This thesis analyses state compliance with 75 reparation orders contained in 32 decisions of six selected regional and sub-regional human rights tribunals (HRTs) in Africa, decided in the period between 1 January 2000 and 31 December 2015, in five states – Nigeria, The Gambia, Tanzania, Uganda and Zimbabwe. Of the six selected HRTs, three are sub-regional (ECOWAS Community Court of Justice (ECCJ), the East African Court of Justice (EACJ) and the SADC Tribunal) and three are regional (African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child). The five states selected for the study are those that have the highest number of human rights cases decided on the merits by both regional and sub-regional HRTs in Africa. The study establishes, based on available data, supplemented by in-depth interviews conducted between July 2015 to July 2017, the compliance status of the 75 reparations orders. In categorising the level of compliance, the study introduces the concept of aggregate compliance, which is calculated as follows: Aggregate Compliance (AC) = Full Compliance (FC) + ½ Partial Compliance (PC). This concept aims to avoid the rigid distinction between full and partial compliance, which suggests that nothing has really been accomplished until everything has been achieved. Using this yardstick, the study finds an overall aggregate compliance rate of 31 percent. Full compliance was recorded in only 13 (17 percent) of the 75 reparation orders; and partial compliance was recorded in 21 (28 percent) of the reparation orders. Of the five countries, Uganda recorded the highest aggregate compliance rate (68%), followed by Nigeria (48%), Tanzania (19%), The Gambia (13%) and Zimbabwe (11%). A factor common to the two least complying states is lack of commitment to compliance and poor system of governance. Finding that sub-regional HRTs recorded 29 percent aggregate compliance with respect to the five studied states, while regional HRTs recorded 33 percent aggregate compliance, the study concludes that the hypothesis that states comply better with decisions of subregional HRTs than regional HRTs cannot be substantiated. It therefore argues that the selected African states do not necessarily comply better with decisions of sub-regional HRTs than regional tribunals; rather, it establishes that human rights judgment compliance in every case is a function of a multiplicity of factors. Correlating the data generated by the study with possible circumstances inducing compliance, specific to the study countries, the study identifies five primary factors facilitating human rights judgment compliance in the selected states: (1) some commitment to compliance by states; (2) low-cost, specific and limited remedies; (3) the existence of free, stable and democratic system of governance in the state required to implement the decision; (4) the effectiveness of follow up by the HRTs and NGOs; and (5) political transition or regime change subsequent to the decision. Of these five factors, the study singles out ‘commitment to compliance’ as the most important factor predictive or indicative of compliance. Acknowledging the limitations of the optic of compliance, being focused on the implementation of clearly delineated reparation orders, the thesis also identifies various forms of impact or influence of HRTs’ decisions in the selected states. Some of the notable influences of HRTs’ decisions in the selected states include amicable settlement of disputes and proactive remediation of violations, legislative and policy reforms; transnational judicial communication and the use of HRTs’ decisions as tools for social mobilization, advocacy and research. The thesis also identifies at least five major obstacles or hindrances to compliance in the selected states, namely poor supervision mechanisms, weak domestic infrastructures for judgment implementation, overall weak institutions, poor institutional designs of regional and sub-regional HRTs, ineffective follow-ups by HRTs and NGOs, poor system of governance in some of the selected states, lack of awareness and erroneous perceptions about international human rights system, among others. The study concludes that if the impact of HRTs’ decisions in the selected states is to be enhanced, domestic activist forces and transnational compliance actors ought to pay more attention to the domestic implementation process, the degree of commitment to compliance by the relevant actors as well as the nature of reparation orders issued by the respective HRTs. Other practical ways of enhancing compliance and overall impact of HRTs’ decisions in the selected states are also suggested. The study adds to the growing literature on state compliance with reparation orders of regional and sub-regional human rights tribunals in Africa. The study differs from and extends the insights from previous judgment compliance studies related to Africa by focusing on the specific reparation orders, rather than on the case as a whole. It introduces a novel concept, that of aggregate compliance, to categorise state compliance. Although the study does not make definitive generalisations or identify universal pattern of state compliance with decisions of HRTs in Africa or anywhere else, its findings may be relevant for other regional and international human rights systems.