The God in the Details: Non-State Actor Interventions at the African Court on Human and Peoples’ Rights

[Yuzuki Nagakoshi is a Visiting Professional at the International Criminal Court.]

The most recent revision of court rules on third-party interventions at the African Court on Human and Peoples’ Rights (“the Court” “ACtHPR”) may greatly impact the fate of African indigenous communities. Through this revision, not only interested State Parties but also interested non-State actors can request to intervene in ongoing proceedings based on Rule 61 of the Rules of Court (“the Rules” “ACtHPR Rules”) as amended in September 2020.

Prior to the revision of the Rules, both former Rules 33(2) and 53 of the Rules (corresponding to current Rules 39(2) and 61) and Article 5(2) of the Protocol to the African Charter on Human and Peoples’ Rights (“the Protocol”) explicitly authorized the State Parties’ right to seek to intervene, but they were silent as to whether an individual or a group of individuals could intervene in ongoing cases. Two orders in the Ogiek case (African Commission on Human and Peoples’ Rights v Kenya (“Ogiek”) (intervention; reparations)) dealt with non-State interveners in the context of an indigenous land rights dispute. The case interpreted the Rule’s silence as to the individuals’ and groups’ right to intervene as the non-existence of such right but curiously alluded to the possibility of such interventions. The revision of the Rules, which would have possibly allowed the intervention, was made following the decision. This article argues that allowing non-State actor interventions is a crucial step towards fairly and effectively solving indigenous land-related disputes.

Why third-party interventions by private stakeholders benefit the litigants and the Court

Intervening in a case under current Rule 61 is a procedure for a Member State or any person with an interest in an ongoing case to intervene and participate as a party to the case (Rules 1(p) and 61). Although interventions are not the only way that a private third-party stakeholder can engage in ongoing proceedings, they make a distinct contribution to providing a final and holistic solution to the case at bar.

Apart from third-party interventions, one way to participate in ongoing proceedings is to initiate a new case and ask the Court to join the cases under Rule 62. This procedure has been used to join cases that deal with closely related subject matters against the same respondent State but filed by separate applicants (see, e.g., Tanganyika Law Society, Legal and Human Rights Centre and Reverend Christopher R Mtikila v Tanzania (joinder) (2011) 1 AfCLR 32 § 4; Elie Sandwidi and Another v Burkina Faso and Three Other States, Consolidated Applications No. 014/2020 and 017/2020 (joinder) “Sandwidi” §§ 6-9). Joinders serve purposes that are similar to third-party interventions: avoiding irreconcilable decisions and realizing judicial economy (Sandwidi § 5). Nevertheless, third-party interventions in existing cases better serve these goals because the Court can resolve the problem at once and without the hassle of having two applications first and then joining them.

Avoiding duplicate proceedings is of crucial importance for the Court’s existence and its impact on the situation on the ground: as a Principal Legal Officer of the Court pointed out in his article, litigation fatigue could even cause a Member State’s partial withdrawal from the Court (Sègnonna Horace Adjolohoun, A crisis of design and judicial practice? Curbing state disengagement from the African Court on Human and Peoples’ Rights 20 Afr. Hum. Rts. L.J. 1, 7-12 (2020)). Member States of the Court often lack the resources to deal with complex international litigation. If the Court is to enhance the protection of human rights across the continent, it must prevent Member States’ withdrawals, which shrinks the Court’s jurisdiction. Third-party interventions simplify and shorten the proceedings through preventing the re-litigation and protraction of the same dispute. Moreover, a state can avoid becoming subject to inconsistent obligations based on different facts pled by different applicants. In these ways, allowing interventions by interested parties may prevent, at least to some extent, litigation fatigue and even Member State’s withdrawals.

Another way of approaching the Court regarding an existing case is to file a brief as an amicus curiae under Rule 55 (former Rule 45), which “entitles the Court in its discretion to receive any evidence from any person, which … would assist it in the determination of a case” (Ingabire Victoire Umuhoza v Rwanda (procedure) (2016) 1 AfCLR 553 § 37). The European Court of Human Rights (“ECtHR”) uses the term “third-party interventions” mostly to refer to filing amicus briefs, which should objectively present the relevant law and materials that assist the court in deciding the case without seeking to advance the author’s interests (Paul Harvey, Third Party Interventions before the ECtHR: A Rough Guide. Paul Harvey is an attorney who works for the Registry of ECtHR). The Inter-American Court of Human Rights (“IACtHR”) also allows a “person or institution who is unrelated to the case and to the proceeding” to present facts or legal considerations relevant to the case (Rules of Procedure of the IACtHR, articles 2.3 and 44).

The most significant difference between intervening and being an amicus before the ACtHPR is that the decision of the Court is only binding on the parties to the case, including the interveners, and not the amici (Rule 72(2)). This means that the case may get re-litigated either in domestic, regional, or continental courts if the amicus brings such cases to any of these fora. The third-party might benefit from being an amicus instead of a party, because it would be able to effectively relitigate the same issue, first as an amicus and then as a party. Such conduct, however, would undermine the finality of the original decision and would not serve judicial economy.

Another important difference between being an amicus and a party at the Court is the right to legal representation: a party to the case has the right to be represented or assisted by legal counsel, and the Court may provide free legal representation or assistance (Rule 31). By contrast, the rules concerning legal assistance do not apply to the amici. If the prospective intervener or amicus is an individual or a group of individuals without sufficient resources, legal aid could become crucial for their voices to be accurately and sufficiently heard by the Court. Moreover, the Court would likely benefit from the counsels’ legal assistance because their submissions would probably be better drafted in comparison with pro se submissions.

In the IACtHR, the Court can add victims of “massive or collective violations” after a case is filed at the court (Rules of Procedure 35.2). Such a system would help victims who have suffered from the same kind of harm caused by the same actor but would be insufficient to include people with interests that are different from the predetermined victims. For example, if a State’s conduct violates a group of individuals’ right to land, someone who belongs to that class of individuals may be able to benefit from being added as a victim, but someone with a conflicting interest in the land will not be able to join the case as one of the victims. In comparison, third-party interventions encompass all interested parties.

The Ogiek Case, the unanswered questions, and the revision of the Rules

The Court’s first and only case that ruled on the issue of non-state interveners is the Ogiek case (a list of decisions concerning this case is available here). The Ogiek case concerns the Ogiek people, a Kenyan indigenous group, which alleged that Kenya violated their rights under the African Charter on Human and Peoples’ Rights (“the Charter”) by evicting them from their ancestral land and restricting its use, most recently through an eviction in 2009 (a summary of the events is available here and here). Following the eviction, two NGOs jointly filed their complaints on behalf of the Ogiek community at the African Commission on Human and Peoples’ Rights (African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 Ogiek § 3). Seeing that Kenya failed to respond to the Commission’s order for provisional measures, the Commission referred the case to the Court (Id. §§ 4-5).

In its landmark decision dealing with indigenous land rights for the first time in its history, the Court found that Kenya’s eviction of the Ogieks from their ancestral land violated their right to occupy, use, and enjoy their land; right to be free from discrimination; right to freely exercise their religion; right to engage in cultural activities and practices; right to enjoy and freely dispose of the food produced by their ancestral lands; and right to economic, social, and cultural development (Ogiek (merits) §§ 114-211). The pleadings for the reparations stage were closed in September 2018, and the case is still under deliberation.

On 16 April 2019, the Court received two applications to intervene in the case. Both applications were filed by the alleged registered owners of the land that was the subject of the decision on the merits. The interveners claimed that their interests were harmed due to the Court’s decision, which was rendered in their absence, and that the judgment on reparations would likely irreparably and fundamentally violate the interveners’ rights to the land in question (Ogiek (intervention) (4 July 2019) §§ 5-7).

On 10 October 2019, the Court received another application to intervene, submitted by members of the Ogiek tribe who were not part of the original proceedings. The individuals each claimed to own a part of the disputed land, which had been deeded to them by the Kenyan government through a settlement scheme. They stated that the decision prejudiced them because it rendered them unable to obtain financing through charging their land to lending institutions. They further maintained that they were content with the settlement scheme and had no desire to allow communal ownership of the land (Ogiek (reparations) (28 November 2019) §§ 4-8).

The Court issued two orders for the applications to intervene. The order involving the two earlier applications was rendered in July, before the October application to intervene was filed. There, it held that neither the Protocol nor the Rules provided a mechanism for a non-State third party to intervene in ongoing proceedings. Moreover, the intervention was too late: according to former Rule 53(1) of the Rules, it must have been done before the closure of pleadings (Ogiek (intervention) § 14).

The Court could have stopped its analysis at this point. Indeed, in the 28 November order involving the latter application filed in October, the Court dismissed the application for the sole reason that only States can intervene (Ogiek (reparations) § 20). Curiously, however, the July decision further discussed the reasons the applicants did not deserve to join the proceedings. According to the Court, the applicants filed their applications too late: the communication with the Commission commenced in 2009, and the application to the Commission was filed in 2012. The Court’s judgment on the merits was delivered in May 2017. Moreover, the litigation attracted the attention of the Kenyan media to the extent that its existence could be assumed to be common knowledge, at least within Kenya, particularly in the area in which the applicants resided. Despite such background, the applicants failed to proffer any explanation for the filing delay (Ogiek (intervention) § 15).

The detailed analysis of what the applicants should have done invites the question: would there be any circumstances under which the Court would allow non-State parties to intervene in a case despite the lack of explicit provisions under the Protocol and the Rules? What if the application to join was filed timely? What if the case had been relatively new? What if the case had not been widely reported to the extent that it became common knowledge? What if the applicants had a valid reason for filing late?

The September 2020 revision of the Rules answered at least some of these questions. The ACtHPR Rules now allow the Court to “authorise any other person who has interest in a case to intervene” (Rule 61(2)). The timeliness of the application is still required under the new Rules, and the general rule is that an application for leave to intervene must be filed before the closing of the written pleadings (Rule 61(4)). But the new Rules provide for an exception: “under exceptional circumstances, the Court may grant leave for an Application for intervention to be filed after the close of pleadings” (Rule 61(4)). The newness or widespread media coverage of the case might become a relevant concern in determining whether exceptional circumstances justify the grant of leave to file the application for intervention later than the closure of the written pleadings.

One line of the Court’s jurisprudence that could be useful in determining the existence of exceptional circumstances is the standard for determining the reasonableness of the lapse of time between the exhaustion of domestic remedies and the filing of an application at the Court. In Manyuka, the Court provided a non-exhaustive list of circumstances that it takes into account when determining the reasonableness of the lapse of time: imprisonment, lack of legal knowledge or professional assistance, indigence, illiteracy, lack of awareness of the existence of the Court, intimidation and fear of reprisals, and the use of extraordinary remedies (Livinus Daudi Manyuka v Tanzania, Application No. 020/2015 (jurisdiction and admissibility) §§ 49-50). Most if not all of these considerations are relevant in considering whether the circumstances surrounding a third-party intervener are exceptional to the extent that they justify the delay in filing.

Had the Ogiek case been decided under the new Rules, all the interveners may have been allowed to intervene, unless the Court, going forward, refuses to find the “exceptional circumstances” under Rule 61(4) due to the widespread knowledge of the case in the relevant community. The Twifo Hemang Community case could have been an interesting case involving a piece of land allegedly belonging to an indigenous community, but it was dismissed due to lack of temporal jurisdiction (Akwasi Boateng and 351 others v Ghana, Application No. 059/2016 (jurisdiction)).

The Importance of Third-Party Interventions in the African Context

The Court’s revision of the Rules to allow third-party interventions is an important step towards rectifying the violation of indigenous land rights in a fair and holistic manner because it enables the Court to take all interested parties’ submissions into account and bind all of them to the rendered decision. It also contributes to the progressive development of procedural law at regional human rights courts, which have only provided limited possibilities for interested non-state third parties to participate in ongoing proceedings.

Due Process

Most fundamentally, third-party interventions ensure due process for interested non-State third parties. Giving a decision without hearing all parties concerned is procedural injustice (Nicole Bürli, Third-Party Interventions before the European Court of Human Rights (“Bürli”) 159-61 (2017); see Case Bochan v. Ukraine (no. 2) (Application no. 22251/08, ECtHR) “Bochan” (Judge Wojtyczek, dissenting) § 9).

Providing a holistic solution to the dispute based on diverse sources of information

Moreover, as a practical matter, liberally allowing third-party interventions by interested parties is crucial for the dispute on the ground to truly settle. Under the old ACtHPR Rule 53 (1) and Protocol Article 5(2), interested non-State third parties could only participate in the proceeding as an amicus with limited rights and without being bound to the final decision. The revised Rule 61(2) grants the Court the discretion to allow the intervention of any interested party and thus enables it to provide a solution that takes into account the interests of all relevant stakeholders, who become bound to the decision.

Including all interested parties is extremely important for resolving indigenous land disputes at regional human rights courts because such disputes often involve multiple parties, including, inter alia, an indigenous community, a government accused of playing a role in land grabbing, and conflicting right holders to the land. Moreover, one cannot assume that the all of the members of the indigenous community would have aligned interests: in the Ogiek case, a certain subgroup of Ogiek people alleged in its application to intervene that the original applicants concealed information relating to their land and that they had not consented to bringing the original litigation (Ogiek (reparations) § 7). This example points to the possibility that excluding interested third parties results in a decision based on one-sided information.

Such disputes also often concern multiple conflicting human rights. On the one hand, an indigenous community should not be deprived of their home, cultural and religious heritage, and livelihood. On the other hand, new owners may have expended costs to acquire and maintain the disputed land. Especially where the original land grabbing took place decades or centuries ago, the new owners may have purchased and invested in the land in good faith with the legitimate expectation that the property would be theirs; the property rights of such good-faith owners are also worthy of protection. The Court’s revision of its Rules allows the consideration of the interests of all the parties, likely leading to a holistic and fairer resolution of the dispute.

Developing international procedural law

Many domestic jurisdictions as well as the Court of Justice of the European Union (“CJEU”) allow interested third-parties to be heard (Bürli 158-59;  Statute of the CJEU, Article 40). Nevertheless, such is an anomaly among regional human rights courts.

The ECtHR has allowed a small number of private interest-based amici to participate in the proceedings to ensure due process. This is akin to allowing third-party interventions, but the amici are not parties and have limited rights, and the participation in hearings is only allowed under exceptional circumstances (European Convention on Human Rights article 36(2); Rules of Court (ECtHR) Rule 44(3)(a); Astrid Wiik, Amicus Curiae before International Courts and Tribunals (“Wiik”) 152 (2018)). The IACtHR does not allow private interest-based amici curiae apart from victims’ participation (Wiik 152; Article 23 IACtHR Rules). It allows the court to add new victims after a case is filed, but as explained above, such does not help potential interveners who do not fit in the victim class.

In this light, the Court’s revision of its Rules stemming from its necessity to resolve indigenous land disputes is a noteworthy contribution to the procedural law at regional human rights courts. Previously, a judge at the ECtHR wrote a concurring opinion arguing for an interested third-party’s right to intervene (Bochan (Judge Wojtyczek, dissenting) § 9). The ACtHPR’s revision of its Rules might trigger the revision of the rules in other courts.

It is yet to be seen whether the ACtHPR would liberally allow third-party interventions by a non-State party, as the grant of leave is up to the discretion of the Court. Nevertheless, the text of the ACtHPR Rules suggests that the Court could be more open to such interventions in comparison to the ECtHR, as the ACtHPR Rules do not require the existence of exceptional circumstances for third parties to be permitted to take part in hearings.

Conclusions

The seemingly minor revision of the Rules at the African Court on Human and Peoples’ Rights empowers the Court to provide a holistic and final solution to indigenous land-related disputes—a vestige of colonialism and a display of a clash between colonialism and traditional values of African civilization. The change was imperative under the Charter’s pledge to “eradicate all forms of colonialism from Africa” and its requirement that the virtues of the Member States’ tradition and the values of African civilization “inspire and characterize their reflection on the concept of human and peoples’ rights” (ACHPR, Preamble). Such an evolution of international law from the African continent is an exciting new development.