One crucial insight to be gained from a century of establishing international courts and tribunals is that while momentum is vital, getting things right from the start is equally important.
With little fanfare, Jan. 25 marked a milestone in the history of the protection of human rights in Africa: the entry into force of the Protocol for Establishing an African Court on Human and Peoples' Rights. After Europe and the Americas, Africa will be the third continent with a regional court to redress human rights violations.
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Acceptance of the protocol in the last year by such influential African countries as Algeria, South Africa, and Libya gave the final and sudden impetus to the court's establishment, and the critical threshold of 15 ratifications was reached shortly before the New Year, when the Comoros signed on. But it is in countries like Burundi, the Ivory Coast, Rwanda and Uganda, which have all ratified the protocol, that the court will likely play a major role in checking human rights abuses.
It can do so because the court's judgments will be legally binding and thus enforceable in national courts. In states that accepted the court's jurisdiction, individuals will be able to gain access to the court directly, even to file cases against their own governments. African non-governmental organizations (NGOs) will be able to ask the court for advisory opinions, thus strength-ening the effectiveness of the African human rights regime.
Clearly, the birth of an African human rights court should be celebrated. But it risks foundering in the docks, and its launch should therefore be deliberate, not rushed. The process is now progressing at a startling -- and worrying -- pace. Nominations for the first judges have been requested by the end of April, with the aim of holding elections at the African Union summit in Addis Ababa, Ethopia, from July 5 to July 7.
Experience elsewhere suggests that once judges have been appointed, rules of procedure drafted and adopted, and the relationship with other international organs shaped, the system will become fixed. Whatever faults and shortcomings are built in at the beginning will become locked in.
But building a sound international judicial body cannot be rushed; it requires time and resources -- both human and financial -- and a lot of support. It took more than four years to physically establish the International Criminal Court, and it took a massive effort by the UN, several major countries, and hundreds of experts, NGOs and think tanks to get this done.
Admittedly, sometimes time is a luxury. The International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR) opened for work in less than a year in order to begin addressing heinous crimes that were ongoing.
But the price of that rush job is evident: as cases started flowing in, the courts' governing statute and rules of procedure and evidence had to be patched on the fly. The statute of the ICTY has been amended four times and the rules of procedure and evidence no less than 27 times. Figures for the ICTR are only slightly better.
That is a poor record for any court of law, which should afford defendants certainty and procedural fairness. All this tinkering could be done because there was an extraordinary consensus in the UN Security Council on the need not to delay the trials. But such agreement is extraordinary. For courts established by treaty, like the African Court, it will likely prove very hard, if not impossible, to find the majority necessary to support changes.
Moreover, effective courts must be politically independent. But this can be achieved only if the right conditions are in place from the onset. The process for nominating judges at the national level is critical. Candidates who are adequate -- and who are widely seen to be adequate -- are the key to the court's legitimacy.
In the European human rights system, the nominating process involves civil society and severe scrutiny by the Parliamentary Assembly of the Council of Europe.
It is only through an open, transparent process that the best candidates -- those who give the greatest guarantees of independence -- are identified.
But that takes time. More-over, the first bench of any international court is critically important, because it is entrusted to prepare and adopt other key documents -- such as the rules of procedure, internal regulations and financial regulations -- that will govern the court for years to come.
When they meet in July in Addis Ababa, African heads of state would be better off discussing where the court will be located, how it will be financed, and most importantly, agreeing standards for an open, participatory and transparent process for electing its judges. They should not rush into nominating judges for a court that is still largely on the drawing board.
Africa is poised to establish its own human rights tribunal, fifty years after Europe, 25 years after the Americas and two years after the International Criminal Court. But, above all, Africa needs a human rights court that commands the unreserved and unmitigated respect of the continent's governments and peoples. Africa's leaders should take a few more months to do it right.
Chidi Anselm Odinkalu is Africa program director of the Open Society Justice Initiative and a lecturer at Harvard Law School. Cesare Romano is assistant director of the Project on International Courts and Tribunals and associate of the Center on International Cooperation, New York University.
Copyright: Project Syndicate
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