Introduction to Human Rights Week 7: International mechanisms of implementation - 1st part VII. Interview with Abdoulaye Soma We are pleased to welcome Professor Abdoulaye Soma. Mr. Soma, your PhD thesis on the right to food that you defended at the Faculty of Law from the University of Geneva attracted a great deal of attention. You are Professor at the University of Ouagadougou in Burkina Faso. You are teaching constitutional law and Human Rights. Thank you for accepting our invitation. What is so original about the protection mechanisms instituted by the African Charter compared with the other regional Human Rights instruments? The mechanism established by the African Charter on Human and Peoples' Rights first consists of the African Commission on Human and Peoples’ Rights. This Commission is now coupled with the African Court on Human and Peoples' Rights. This mechanism is original, mainly because of two reasons: The first originality is that these mechanisms guarantee the non-derogability of rights. This has been confirmed by the African Commission on Human and Peoples’ Rights in several cases. The first case dates from 1995 and concerns Chad. The second case dates from 1997 and concerns Angola. The third case dates from 2003 and is the only intergovernmental case that we know in the African system. The last case dates from 2007 and concerns an NGO v. Eritrea. According to this mechanism, the believe is that all rights guaranteed in the African system are non-derogable. This is very original. Indeed, in other Human Rights instruments, some rights are always guaranteed but some rights are also always derogable in times of crisis. I am for example thinking of the mechanism established by Article 15 of the European Convention on Human Rights. This mechanism does not exist in the African system: the rights guaranteed in this system are non-derogable so they have to be implemented anywhere and anytime. The second originality concerns actio popularis. At the African level, a popular action is guaranteed thanks to communication between the protection mechanisms and people entitled to the rights. Everyone has therefore access to protection mechanisms. I am refereeing here to the African Commission on Human and Peoples’ Rights. In the European system, the admissibility of an application is subject to the following condition: the applicant has been the victim of a violation. This is not a requirement on the African continent. So, even a NGO which is not concerned by a violation can make an application before Human Rights bodies. Thank you for this very complete and illustrative answer. What would be the weaknesses of the African mechanism? Of course, weaknesses exist in the African protection mechanism of Human and Peoples' Rights. One of the weaknesses is that the system can refract on disagreements. In Africa, we are a little refractory to disagreements. This influences on the mechanisms established in order to guarantee Human and Peoples' Rights. The system has been the same since the establishment of the Commission. The Commission is not a jurisdictional power. The African Court on Human and Peoples' Rights was only established in 2006. The reluctance can also be observed before the Court. The Court's jurisdiction is therefore not compulsory. The jurisdiction of the African Court on Human and Peoples' Rights is optional. In order for the people to have access to this Court, the State against which the individual wants to complain about needs to have made this optional declaration of compulsory competence which appears in Article 34 point 6 of the Ouagadougou Protocol on the creation of the African Court on Human and Peoples' Rights. We do not really like jurisdictions and when we create some, we limit them as much as possible. The second weakness is that there is a lethargy regarding protection mechanisms in Africa. At the moment, our system is incomplete. Indeed, the African Commission on Human and Peoples’ Rights was created in 1981 and acted until December 2006 when the African Court on Human and Peoples' Rights was established. However, the Court has only recently been operational while the system was changing. It is said that the African Court on Human and Peoples' Rights will be repealed and that a general Court will be instituted in Africa: an African Court of Justice and of Human Rights of which the Protocol was adopted in Charm-el-Cheikh on the first of July 2008. Now, the African Court of Justice and of Human Rights should exist but is not operational and the African Court on Human and Peoples' Rights is operational but should not exist anymore in the future. The system is therefore transitional and incomplete. Do you think that the jurisdictional mechanism of monitoring respect for Human Rights is appropriate in the case of a massive violation of these rights? This is a sensitive question. I would say that it depends. The mechanism is efficient if we consider an individual implementation of the massive violation. Human Rights can be violated in a flagrant and massive way but it is everyone's responsibility to decide whether an application is needed or not. Let us for example take the case of Libya: there are several Human Rights violations but it is everyone's responsibility to wonder, in this context of massive violations: "Does the violation of my Human Rights lead me to bring an action in court?" When the implementation is individualized, the jurisdictional mechanism is fully suited. On the other hand, the mechanism becomes unsuited to the collective treatment of massive violations. Indeed, there is a risk for the system to be saturated because of the collective treatment. In Mali, for example, terrorist groups, secessionist groups and even armed forces are violating Human Rights of millions of people. If we want to have a collective treatment, it is impossible to bring a single action concerning millions of people before Human Rights bodies. The risk is to be ineffective. Professor Soma, the jurisdictional monitoring respect for Human Rights is often described as the most successful and efficient mechanism. What is your opinion on this matter? Yes, I agree, mainly for two main reasons. First, there is an adversary proceeding in the jurisdictional mechanism. Rights holders and rights addresses are both defended. As we say : light arises from contradiction, therefore the truth regarding the demand of implementation will be known thanks to the proceedings. The jurisdictional mechanism gives this possibility that other mechanisms do not give. The administrative machinery - the examination of the report - is for example presented by a State. The State can of course erode a bit the truth. The facts that can be the basis of a ruling can therefore not be established. The second reason is that the result is a binding decision in law. After the debate, there is a biding decision. The State must then implement the decision taken by the judge. This distinguishes the other mechanisms that can make recommendations. In international law, a recommendation which is not accepted by the State is not compulsory. Thank you very much. Thank you.