AU Watch

African Court on Human and Peoples’ Rights (AfCHPR)

This is the judicial body that adjudicates human rights complaints and issue binding decisions between parties. Its main sources of jurisprudence are the African Charter of Human and Peoples’ Rights, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, and other continental human rights instruments ratified by African Union Member States.

Established in 2004 and located in Arusha, Tanzania, the court hears cases from the 26 African Union (AU) member states that have ratified the Protocol establishing the Court: Algeria, Burkina Faso, Burundi, Cote d’Ivoire, Comoros, Congo, Gabon, Gambia, Ghana, Kenya, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Mauritius, Nigeria, Niger, Rwanda, South Africa, Senegal, Tanzania, Togo, Tunisia and Uganda. Five states have issued declarations allowing for individual applications: Burkina Faso, Ghana, Malawi, Mali. Rwanda and Tanzania withdrew their signatures.

It can also seek inspiration from international instruments. The Court can rule over contentious issues and issue advisory opinions on the request of an AU organ or state party. To date only 30 countries have ratified the Protocol.Another major constraint affecting the work of the Court is that only ratifying states, African intergovernmental organisations and AU organs can seize the Court. If countries want to allow non-governmental organisations (NGOs) and individuals to have access to the Court they need to ratify a special declaration to allow them to do so. Only 7 countries have done so.

As a result, the Court has over 270 cases to date. In the majority of the cases so far handled, the Court has stated that it did not have jurisdiction because the states accused had not signed the special declaration. The Court issued its first ruling based on merits in June 2013.

In 2004, out of concern for the growing number of AU institutions, the AU decided to integrate the Court with the African Court of Justice, creating an African Court of Justice and Human and Peoples’ Rights. The new combined court is yet not operational, but it is ultimately intended to be the principal judicial organ of the AU.

Jurisdiction

Article 3 of the Protocol extends jurisdiction to “all cases and disputes submitted to it concerning the interpretation and application of the Charter”, the Protocol and other human rights instruments that states have ratified. In addition, Article 4 gives the Court jurisdiction to issue advisory opinions on “any legal matter relating to the Charter or other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.”

Admissibility

Under Article 56 of the African Charter, the Court must consider a number of factors when deciding upon the admissibility of a case. This includes determining whether an applicant has submitted the communication within a reasonable time after the alleged violation/s, and whether domestic remedies have been exhausted, except in cases where procedures would unduly prolong a case. The Court is permitted to seek an opinion from the African Commission when deciding on the admissibility of direct communications submitted by individuals and NGOs.

Procedure

Applications to the Court may be made by the African Commission or other African intergovernmental organizations, by States who have lodged (or against who has been lodged) a complaint at the Commission, and by States whose citizen is a victim of a human rights violation. Other states who are party to the Court’s Protocol and have an interest in a case may be permitted by the Court to join the proceedings.

In addition, applications may also be lodged directly by individuals and by NGOs with Observer Status before the African Commission, however only against those states who have made a declaration accepting the competence of the Court to receive applications from these entities under Article 5(3) of the Protocol. As of mid-2019, six such declarations have been made, by Burkina Faso, Ghana, Malawi and Mali.

Cases before the Court involve a written phase, and may also include an oral phase of proceedings at which the parties may makes submissions and also present evidence and call witnesses. Once a case has been heard, the Protocol requires that judges issue a decision within 90 days of completing deliberations

Remedies

If the Court finds the rights of an applicant have been violated, it can order remedial measures such as compensation or reparations. Article 27 of the Protocol also allows the Court to order provisional measures, if a case is of “extreme gravity and urgency, and when necessary to avoid irreparable harm.”

Enforcement

Member States subject to the Court’s jurisdiction must comply with judgments in any case to which they are parties, within the time given by the Court. States are also responsible for guaranteeing execution of the Court’s judgments. If a State fails to comply, this failure is noted in the Court’s report to the Assembly, as required under Article 31 of the Protocol.

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Article 34(6) declarations for individual and NGO access to the African Court: the main pipeline for cases

Of the African Court’s 30 member states, only 10 (Benin, Burkina Faso, Côte d’Ivoire, Gambia, Ghana, Malawi, Mali, Rwanda, Tanzania, and Tunisia) have ever made the declaration under Article 34(6) of the African Court’s Protocol accepting the competence of the Court to receive cases from individuals and NGOs. Since the Court’s creation in 2006, this direct access has proven to be the Court’s main pipeline of cases, giving the Court the opportunity to help victims of human rights violations who exhausted local remedies and went to the regional level to seek justice. Based on the Court’s statistics reported as of September 2019, of the 238 applications it has received, individuals made 223 applications, and NGOs made 12 applications.

If a state has not made an Article 34(6) declaration allowing individuals or NGOs to directly submit applications against it, African states or the African Commission on Human and Peoples’ Rights (“Banjul Commission”) can submit applications to the Court. Thus far, no state has submitted an application to the African Court, and the Banjul Commission has referred only 3 cases to the African Court. Direct access for individuals and NGOs, therefore, dramatically increases the caseload of the African Court, which is in the process of developing its jurisprudence and carving out its role on the continent.

States withdrawing individual and NGO access: from Rwanda to Tanzania

In recent years, as the African Court has been deciding more and more cases and issuing judgments against states, it has been subject to some state resistance. To limit the African Court’s interventions in their internal affairs, states naturally would consider cutting off the African Court’s principal source of cases against them (i.e., withdraw their Article 34(6) declarations), and have African governments and the Banjul Commission control the flow of cases to the African Court.

In 2016, it what Oliver Windridge nicknamed “Rwexit” (here and here), Rwanda was the first state to give notice that it was withdrawing its declaration, which it had made in 2013. The highly controversial Ingabire Victoire Umuhoza v. Republic of Rwanda case apparently prompted Rwanda’s decision. In 2014, shortly after Rwanda had made its declaration, Ingabire—who was leader of the Rwandan opposition party Forces Democratiques Unifiées, and who had been convicted of genocide- and terrorism-related crimes—submitted an application to the African Court, claiming Rwanda had violated her fair trial rights. Justifying withdrawing the declaration, Rwanda’s Justice Minister argued that “the declaration progressively degenerated into a platform which all sorts of organisations and individuals, including convicts of the 1994 Genocide against the Tutsi, could use to promote their agenda.”

Faced with this unprecedented withdrawal, the African Court noted that it raised three main questions: whether Rwanda’s withdrawal was valid; if so, what were the applicable conditions for such a withdrawal; and finally, what were the legal effects of the withdrawal. The Court decided that it had jurisdiction to deal with the withdrawal, Rwanda was entitled to withdraw its declaration, and the withdrawal should have a period of notice of one year. After a year, the withdrawal would take effect but would not divest the Court of its jurisdiction over pending cases. The African Court thus clarified the terms for withdrawing an Article 34(6) declaration—for Rwanda and all African states that had made these declarations.

Rwanda’s move did not set off a “cascade” of withdrawals. Several African states made moves in the opposite direction: Benin submitted an Article 34(6) declaration around the time of Rwanda’s withdrawal notice in 2016, and Tunisia and The Gambia submitted declarations well afterwards in 2017 and 2018, respectively. Tanzania’s recent withdrawal of its declaration, however, shows that Rwanda is no outlier. Now, 2 of the 10 states that made this declaration subsequently have chosen to withdraw it.

Based on the Rwandan precedent, it is clear that Tanzania’s withdrawal is valid, will take effect in one year from the withdrawal notice, and will not affect cases preceding the date it takes effect. Thus, for Tanzanian individuals and NGOs, there is a “deadline” for making applications to the African Court. Afterwards, they will rely on African states or the Banjul Commission to bring cases against Tanzania to the African Court. But based on the track record so far, they should not hold their breath.

Implications for the African Court and African Human Rights

This decision has far-reaching implications for the African Court and, by extension, the development of the African regional human rights system. Cases against Tanzania, brought by individuals and NGOs, have represented a major portion of the African Court’s caseload so far. Based on the latest court-reported statistics, Tanzania accounts for 33 of its 76 finalized cases (43%), and 105 of its 167 pending cases (63%). Eliminating this source of cases for the African Court will obviously restrict its ability to hold Tanzania accountable for human rights violations, but it also will limit significantly the Court’s overall caseload and thus its opportunities to develop its jurisprudence. This can be considered a setback for a relatively young court and regional human rights system.

In addition, having its host state rescind individuals’ and NGOs’ access is a symbolic blow to the African Court. In the early days of hosting the African Court, Tanzania—possibly more so than any other African state—offered the Court strong rhetorical support, even if its practical support sometimes was lacking (see my research on relations between Tanzania and the African Court, specifically relating to Tanzania’s provision of the Court’s premises, here). In 2012, for example, Tanzania’s Minister of Justice and Constitutional Affairs Mathias Chikawe recognized that, by hosting the African Court, Tanzania was “putting [its] human rights record under close scrutiny,” and “to be known as the Justice and human rights capital of Africa, [Tanzania] must face up to this challenge.” Chikawe, moreover, emphasized that “building an effective human rights system… must be a collective endeavour.” Tanzanian politics has changed considerably since then, with human rights organizations like Amnesty International and Human Rights Watch warning of Tanzania’s declining human rights conditions. With this withdrawal of individual and NGO access to the African Court—the source of cases against Tanzania—it is clear that Tanzania is shying away from this challenge and is no longer a credible advocate for the Court.

When it comes to international institutions, withdrawals are relatively rare events, and having two withdrawals of Article 34(6) declarations in less than four years should not be considered a trend or crisis. This latest withdrawal is undeniably a blow for the African Court, both practically and symbolically, but like other regional human rights courts that have faced similar challenges, the African Court will be able to adapt and carve out spaces where it can have impact.

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