Reclaiming rights through African Court
When Enerst Mtingwi was dismissed from Malawi Revenue Authority (MRA) a year after he was hired, he sued the organisation for wrongful and unfair termination of employment at the High Court in Malawi.
According to case documents sourced from the African Court which is based in Arusha, Tanzania, the country’s High Court declared that he was indeed unfairly dismissed and ordered that he should be paid three months’ salary and benefits because the contract was terminated without notice. Mtingwi worked at the revenue collection body as commissioner general.
It was later noticed that some benefits were accidentally omitted in the order of assessment of damages and this was proven by the judge in chambers-where Mtingwi sort help after the initial order.
But MRA sought the views of the Supreme Court of Appeal which dismissed the judge in chambers’ ruling that there were indeed some omissions in order of assessment of damages.
In exercising his rights further, Mtingwi submitted his case to the African Court of Human and People’s Rights (AFCHPR) on February 1, 2013.
But the court noted that it does not have any appellate jurisdiction to receive and consider appeals in respect of cases already decided upon by domestic and regional and similar courts.
It said that as this is an appeal by the applicant against the decision of the Malawi Supreme Court of Appeal, a domestic court in the respondent’s state (Malawi), the court concludes that it does not have the jurisdiction to receive the application
“For these reasons, the court unanimously finds that in terms of Article 3 of the protocol, it has no jurisdiction to receive the application instituted by Mr. Mtingwi against the Republic of Malawi.”
“ … Rules that this application be and same is here by struck out for want of jurisdiction,” reads the concluding remarks of the African Court’s decision on Mtingwi’s case.
Mtingwi is one of a few Malawians who have sought for the services of AFCHPR after feeling that his right to justice was infringed on and was not satisfied with the local resolutions.
We also found documents about Urban Mkandawire-former University of Malawi employee who sought the intervention of the court after he was unfairly dismissed. The High Court found that he was indeed unfairly dismissed and ordered that he should be paid for damages for wrongful dismissal even though he could not be reinstated.
But his former employers appealed at the Supreme Court of Appeal claiming that the High Court erred in awarding damages to him for wrongful dismissal in addition to the three months notice pay awarded to him.
Mkandawire was not satisfied with the local court’s ruling and he also took it to the AFCHR for further hearing.
AFCHR dismissed the two Malawian cases.
But at least Mtingwi and Mkandawire sought to exercise their right to justice at the African Court because they knew about its existence and about their rights. Even though over two decades have passed since Malawi embraced promotion of human rights as one of its governing values, many citizens may still not be aware of their rights, let alone the existence of the court.
Since the establishment of the African Court 10 years ago, it has had three cases against the Republic of Malawi.
Registrar of the court, Robert Eno, says at the moment there are 127 cases, 95 are pending but most of the cases come from Tanzania.
“We currently have no Malawian case pending. All the two cases we had were finalised. Within the last two to three years, we have mostly received cases from Tanzania. It’s understandable why this is the case, I’m sure it’s because of the country’s proximity to the court,” he says.
Vice-President for Pan-African Lawyers Union (Palu) Southern Africa, Maureen Kondowe, says some Malawian lawyers know about the African Court but not everyone.
“This is the case because areas of practice of law as a profession are broad. Very few lawyers consider human rights and their alleged violations for which some redress must be sought from a court of law as an area in which they can practise on a full-time basis. A small number of the members of the general public know about this court at all,” she observes.
Kondowe says Malawians can take cases that relate to alleged human rights violations to the African Court.
“This is allowed after all domestic remedies are exhausted, meaning that the cases must go through our local courts here from their commencement to their judgments in the High Court and all the way to the Supreme Court of Appeal. You can check if the Human Rights Commission here has any pending cases that require commencement at this court,” she says.
Malawi is one of the 30 countries that ratified to the protocol to the African Charter on Human and People’s Rights on the establishment of AFCHPR.
Malawi is also one of the countries that made a declaration recognising the competence of the court to receive cases from non-governmental organisations and individuals.
Executive Secretary for Malawi Human Rights Commission (MHRC), Grace Malera, says there are no cases that will be referred there soon in their records.
“Remember referring cases there requires that either you have exhausted local courts or local remedies are not available. In our case, we have found domestic courts responsive enough to our issues that have required litigation. Further, MHRC has engaged other human rights mechanisms within the AU [African Union] other than the court,” she explains.
According to AFCHPR website, the advisory opinion of the court may be requested by the AU, member states of the AU, AU organs and any African organisation recognised by the AU.
The court is composed of 11 judges, nationals of member states of the AU elected in their individual capacity, and Malawi’s Justice Duncain Tambala has been one of the judges. The court meets four times a year in Ordinary Sessions and may hold Extraordinary Sessions.
AFCHPR was established through a protocol to the African Charter. The court was established in order to complement the protective mandate of the commission. The court entertains cases and disputes concerning the interpretation and application of the African Charter, the court’s protocol and any other human rights treaty ratified by the state concerned.
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