Arusha:  The African Court on Human and Peoples’ Rights (AfCHPR) may soon replace the International CriminalCourt (ICC) on the continent. A protocol is scheduled to be tabled before the July 2012 Summit of the AU Heads of State and Government for them to consider granting the court the jurisdiction to hear war crimes and crime against humanity. But critics warn that the move negates the very intent of the AU Charter.

The African court currently hears human rights cases. It is specifically confined to disputes which call for interpretation of the AfCHPR, the Protocol establishing the court and any other relevant instrument on human rights ratified by the relevant state.

“AU policy organs are currently considering the plan to extend the court’s jurisdiction to cover criminal matters,”AfCHPR president Justice Gerard Niyungeko says.

Justice Niyungeko revealed the plan when presenting a paper at a public lecture organised by the Faculty of Law of Tumaini University Makumira (Tuma). The Tuma Law Faculty offers Certificate and Diploma in Law as well as Bachelor of Law (LLB) and Master of Law in Human Rights (LLM-Human Rights). 

Some scholars have faulted the plan to extend the jurisdiction, arguing that the African court had failed to address prevailing challenges, making it less effective, contrary to expectations.

Challenges currently facing AfCHPR include low rate of ratification, as only 26 out of 54 parties to the AfCHPR have so far ratified the Protocol for the establishment of the court.

Individuals and non-governmental organisations’ access is another challenge facing the court, as these cannot use the AfCHPR without declaration from their respective governments.

Only Tanzania, Mali, Malawi, Burkina Fasso and Ghana out of the 26 countries, which have ratified the Protocol for the establishment of the court, have so far submitted such a declaration.

Tusekile Mwakalundwa, a student in Masters Degree in Law majoring in Human Rights pleads with AU to continue cooperating with the ICC. The decision to extend its court jurisdiction to cover international crimes negatesthe very intent of the African Charter, MsMwakalundwa argues.

“I have read the Draft Protocol and find it very confusing,” she says. Fearing the protocol would encroach on the ICC mandate, MsMwakalundwa doubts the set up.

The AU Heads of State’s motive behind extending the court’s jurisdiction might create a hideout for them to run away from ICC with impunity, another student in Masters Degree in Law says on condition of anonymity.

“I don’t see anything wrong with the ICC. These latest efforts may be looking for an escape route from the now famous court at The Hague,” he says.

Advocate ElifurahaLaltaika, the Dean of the Tuma Faculty ofLaw, is worried over sources of funds compromising the independence of the court.

Relying on both foreign donors and governments is not safe, MrLaltaika observes. While outsiders may influence the court’s decision, African governments have always been reluctant to finance intergovernmental organisations timely, he explains.

And once verdicts are not in favour of the governments, the financiers’ fury will be reflected in the court’s budget, Mr Laltaika doubts.

But the AfCHPR president says MrLaltaika’s concern had been considered, explaining: “We don’t accept donors funding the running of the court because we are well aware that they can undermine ourindependence.” Justice Niyungekosays the court funded by AU does not have its own separate budget.

“Whether a state ratifies theprotocol for the establishment of the African court or not, it must fund it through its compulsory contributions to AU,” he adds.

The Tuma Faculty of Law has throughout this semester been organising a series of public lectures whose theme is ‘Promotion and Protection of Human Rights in Africa’.

“We believe the interaction between prominent human rights practitioners and members of the academia will exchange valuable information and mutual intellectual enrichment,” MrLaltaika says.

Officiating at the closing ceremony of the latest public lecture, Prof Ismail Mbise, the deputy chancellor for Academic Affairs, urged the faculty to consider publishing the series of lecturers in a book for a wide access and consumption of ideas.