A Court in Crisis: African States’ Increasing Resistance to Africa’s Human Rights Court

[Nicole De Silva is an Assistant Professor of Political Science at Concordia University and Misha Plagis is a Postdoctoral Researcher at the T.M.C. Asser Instituut.]

The African Court on Human and Peoples’ Rights—the African Union’s continental human rights court—received severe blows in late April, as two states, Benin and Côte d’Ivoire, withdrew their declarations allowing individuals and NGOs to submit cases directly to the African Court (see Oliver Windridge’s recent OJ post on the withdrawals here). These latest withdrawals not only undermine the Court’s role on the continent, but can also be situated within African states’ broader practices of resistance to supranational adjudication, particularly when African regional courts uphold human rights, democracy, and the rule of law.

Increasing State Resistance to the African Court: The Domestic Political Dimension

Out of the African Court’s 30 member states, only ten (Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali, Rwanda, Tanzania, The Gambia, and Tunisia) have ever made declarations under Article 34(6) of the Court’s Protocol accepting the competence of the Court to receive cases from individuals and NGOs. To date, four states have withdrawn their declarations. Rwanda’s withdrawal in 2016 seemed like the exception rather than the rule, but the past six months have brought three withdrawal announcements in quick succession: Tanzania in November 2019, and Benin and Côte d’Ivoire in April 2020.

Rwanda

Rwanda’s withdrawal was an explicit reaction to the highly controversial Ingabire Victoire Umuhoza v. Republic of Rwanda case concerning an opposition party leader’s fair trial rights and freedom of speech regarding the Rwandan genocide. Justifying the withdrawal, the Rwandan Justice Minister was clear about the domestic political dimension, arguing the declaration “was being exploited and used contrary to the intention behind its making” by providing a platform for “convicted genocide fugitives.”

Tanzania

What instigated Tanzania’s withdrawal is less clear-cut (see Nicole De Silva’s previous post for an overview). It may have been a combination of undesirable rulings, as cases filed against Tanzania account for the majority of the Court’s finalised and pending cases. Based on the timing of Tanzania’s withdrawal notice, however, it may have been prompted by the Ally Rajabu and Others v. United Republic of Tanzania case relating to Tanzania’s mandatory death penalty for murder convictions. Tanzania, which is also the Court’s host state, has only justified the withdrawal by stating the declaration is “contrary” to Tanzania’s constitution.

Benin

In contrast with Tanzania, Benin provided numerous justifications for its withdrawal decision, though the precise timeline of events and cases instigating the withdrawal remain somewhat ambiguous. According to its official press release, the Beninese government  submitted its withdrawal to the African Union on March 16, 2020, but this only came to light in late April 2020. In its press release and comments to the press, Benin accused the Court of “dysfunctions and slippages,” and contested its “interfere[nce] in issues related to state sovereignty and issues that do not fall within its jurisdiction.” It criticized the Court’s decisions over the past several years for “serious incongruities,” and noted how these also led Tanzania and Rwanda to withdraw direct access for individuals and NGOs.

These comments apparently relate to two very different sets of cases, which, despite being provisional measures rather than judgements on the merits, elicited a severe reaction from Benin. First, the Beninese government’s press release singled out cases involving the repayment of a large loan to the Société Générale Bénin (see Kodeih cases here and here), saying the Court had been “radically incompetent,” overstepped its authority, caused “disarray in the business community,” and “bec[a]me a source of real legal and judicial insecurity.”

The second key point of resistance appears to concern a case brought by a member of the political opposition. A case submitted by Sébastien Germain Ajavon, a former presidential candidate who was in exile, led the African Court to order Benin to suspend its municipal elections planned for May 17, 2020. The government spokesperson, for example, argued the withdrawal was necessary “in order not to jeopardize the interests of an entire nation and the duty of a government which is responsible for holding elections on time.”

Benin went further than other African states with the rhetoric around its withdrawal by also announcing that, at the next African Union summit, the Beninese President would call on his fellow heads of state and government to reform the African Court, referencing the longstanding plan to establish an African Court of Justice and Human Rights (a merged court with general and human rights jurisdictions).

Côte d’Ivoire

Côte d’Ivoire offered relatively less justification for its withdrawal, which was decided at a cabinet meeting on April 28, 2020, just days after Benin’s withdrawal became public. In its communiqué on the withdrawal, Côte d’Ivoire argued the Court’s “serious and intolerable” actions not only undermine its sovereignty, but are also “likely to cause a serious disturbance of the internal legal order of State” and “undermine the foundations of the rule of law by establishing genuine legal uncertainty.”

Côte d’Ivoire’s move appears to be yet another withdrawal evidently related to a case submitted by a ruling party’s political opponent. On April 22, 2020, in the provisional measures in Soro & Others v. Côte d’Ivoire, the Court ordered Côte d’Ivoire to suspend an arrest warrant against Guillaume Soro, a former rebel leader, former prime minister, and presidential hopeful. On April 28, 2020, Soro was convicted in absentia of embezzlement and money laundering and sentenced to 20 years in prison by an Ivorian court. That same day, Côte d’Ivoire announced its withdrawal of its special declaration to the African Court.

The apparent factors instigating states’ withdrawals share common themes. Tanzania was rather exceptional for focusing its justification on a simple legalistic reason: the Article 34(6) declaration’s supposed incompatibility with Tanzania’s constitution. Other states have been more unified in their rhetoric of resistance. In Rwanda, Côte d’Ivoire, and possibly Benin, the governments were resistant to members of the political opposition challenging their authority by submitting human rights cases to the African Court, based on their direct access under Article 34(6). Benin and Côte d’Ivoire also accused the Court of poor judicial decision-making (see Apollin Koagne Zouapet’s recent post for context), and referenced concerns that, based on cases brought by individuals, the Court was undermining state sovereignty by exceeding its jurisdiction and authority.

More of the Same? Considering Broader Resistance to African Regional Courts

The African Court is not the first African regional court to come under attack over supranational adjudication related to human rights, democracy, and the rule of law. Sub-regional courts in West Africa (the ECOWAS Court of Justice), East Africa (the East African Court of Justice), and Southern Africa (the SADC Tribunal) all experienced backlash from particular member states that frequently cited concerns about sovereignty and courts overstepping their authority to interfere in states’ internal affairs. In these cases, the states lobbied their fellow member states to curtail the courts’ authority by limiting their jurisdictions. West African states left the ECOWAS Court’s human rights jurisdiction intact, but East African states revised the EACJ’s design, and Southern African states effectively disbanded the SADC Tribunal.

In the case of the African Court, the states that withdrew their Article 34(6) declarations have used similar rhetoric of sovereignty and non-interference, but have not openly advocated for dismantling the African Court or limiting its jurisdiction. It remains to be seen whether and how Benin will follow through on its stated intention to advocate for reforming the African Court.

Given the optional nature of Article 34(6), however, states may not have to pursue outright reform, and can instead limit the Court’s authority and influence by opting out of Article 34(6) declarations. However, if individuals and NGOs do not have direct access, only African states or the African Commission on Human and Peoples’ Rights (ACHPR) can submit cases to the Court. To date, no state has submitted a case to the African Court, and the ACHPR has referred only three cases.

Currently, with only six states with Article 34(6) declarations remaining, the African Court is already falling short of its supposed status as a pan-African, continental human rights court. If more states withdraw these declarations, the African Court’s pipeline of cases may dry up almost entirely in the coming years. If the experiences of other African regional courts offer any lessons, mobilization from civil society will be necessary to mitigate backlash against the African Court. Beyond that, support from other African states and the African Union will be vital for defending against particular states’ attacks on the Court and helping this institution, created to strengthen human rights enforcement in Africa, fulfil its promise.