Under Attack? Under the Radar? Under-Appreciated? All of the Above? A Time of Reckoning for the African Court on Human and Peoples’ Rights.

[Oliver Windridge is a lawyer specialising in international human rights law and international criminal law. He is founder of The ACtHPR Monitor, a website and blog dedicated to the African Court on Human and Peoples’ Rights. Oliver is one of five lawyers on the African Court’s List of Counsel (pro bono) and currently acts as counsel in cases before the African Court as well as other human rights mechanisms.]

This post focuses on a seminal moment for the future of maybe the most important court in the world- the African Court on Human and Peoples’ Rights.

To understand why the current situation is so important and why it should be on everyone’s radar, it’s worth summarising exactly what the African Court is. The African Court is a regional human rights court and the African Union’s apex human rights mechanism. It has jurisdiction to hear cases alleging violations of the African Charter on Human and Peoples’ Rights and, uniquely for a regional human rights court, any other international human rights instruments that the state subject to the application has ratified. The African Court has used this jurisdictional power to consider complaints alleging violations of not only the African Charter but also the ICCPR, Universal Declaration of Human Rights, African Charter on the Rights and Welfare of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. Unlike the African Court’s cousin, the African Commission on Human and Peoples’ Rights, the African Court’s judgements are also binding.

For many working on and with the African Court, litigants’ access to the court has been one, if not the major issue. This is because for individuals and NGOs to unlock the African Court’s potential, a triple layer of ratifications and declarations is required. The first layer is ratification of the African Charter itself, something which every AU member state, bar the relatively recently readmitted Morocco, has done. The second layer is the ratification of a Protocol to the African Charter. When a state ratifies this Protocol, it gives the African Court jurisdiction to consider complaints from states, intergovernmental organizations and the African Commission. At present, 30 AU member states have signed this Protocol. However, look again at that list of who can access the African Court via the Protocol and we see some crucial prospective litigants missing- individuals and NGOs. There have been a few cases transferred from the African Commission to the African Court, but these have been few and far between and without any public guidance as to why they were transferred. Even less likely are the chances that states themselves will bring other states before the African Court, and the chances of states referring themselves has to be close to zero. The reality is that for most human rights courts (and other human rights mechanisms for that matter) the vast majority of cases come from individuals and NGOs. Therefore, a state signing the Protocol does little to expand the chances of actual human rights cases being brought.

The good news is that Individuals and NGOs with observer status before the African Commission can directly access the African Court, but this where the third layer of ratification come in. This third requirement is the signature of an Additional Declaration, on top of the Protocol. States make a simple written declaration allowing individuals and and NGOs direct access, and the African Court has the full power to consider applications from anyone. This triple layer of ratification/signatures (African Charter, Protocol, Additional Declaration) is burdensome, but it can be done. As of October 2019, nine countries had fully committed to the African Court by signing the Additional Declaration: Tanzania, Benin, Cote D’Ivoire, Mali, Ghana, Burkina Faso, Tunisia, Malawi and Gambia. But still, a court where only nine out of 55 states can access it is only going to be so effective.

But the limited effect of nine has been further diminished over the past few months. In November 2019, nine became eight when Tanzania withdrew its Additional Declaration. Why Tanzania withdrew appears to relate to the slew of judgements the African Court has rendered against it and in particular its criminal justice system which the African Court has consistently found to violated fair trial rights.

One withdrawal is bad enough, especially from the state where the African Court is actually located. Unfortunately though, it has not been the last. Last week, we received reports, since confirmed, that Benin has also withdrawn its Additional Declaration. Another blow to the African Court as eight became seven. This week we received further news that Cote D’Ivoire has followed suit. Suddenly, we are looking at only six states that allow individuals and NGOs direct access to the African Court. These latest withdrawals though are not the first. Rwanda withdrew its Additional Declaration in 2016with the African Court subsequently deciding that whilst Rwanda was entitled to withdraw its Additional Declaration, it would only come into effect after 12 months, at the time seen as a sensible decision by the many African Court observers including myself.

To be clear, the African Court is not perfect. But when it has jurisdiction to hear cases it has rendered watershed judgements. It has upheld the right to participate in government, finding that anyone should be able to stand for public office without having to join a political party. It has upheld the right to a fair trial on several occasions including a recent decision that the mandatory death penalty is in violation of the right to fair trial and the right to life. It has found that states have a duty to fully and impartially investigate the murder of its citizens even when those suspected of the murder are at the very top of government. It has upheld the right to freedom of expression in extremely sensitive situations. As mentioned above, it has also gone beyond any other regional human rights court by considering not only its own regional human rights instrument, the African Charter, but also the ICCPR and other international human rights instruments, contributing to global case law.

Clearly, each of these latest withdrawals exists within its own context. As mentioned above, Tanzania’s withdrawal comes after several years of unfavourable decisions from the African Court and a change of national leadership. Cote D’Ivoire’s withdrawal appears directly connected to the African Court’s order last week to suspend an arrest warrant containing embezzlement and money laundering charges against former Prime Minister Guillaume Soro. Benin’s withdrawal appears related to orders from the African Court calling on it to suspend municipal elections and reviewing constitutional changes.

But the key question is whether beyond these localised contexts are there further reasons or explanations as to why these three states have withdrawn direct access from the African Court in relatively short succession? I’m going to suggest three broad possibilities. First, is that there is no overarching reason. All three states independently and separately withdrew for the African Court for separate case-specific reasons as detailed above (with perhaps the virtues of voluntarily signing up to a human rights court then withdrawing the moment that court renders a decision against you for another post). But this is a possible scenario and could at worst be a case of awfully bad timing when occurring within six months -or a week in the case of Benin and Cote D’Ivoire- of each other. Second, the African Court has been the victim of its own success. States have signed up fully and given the African Court jurisdiction to actually consider cases, only for the court to render decisions finding those states in violation of their human rights obligations. These decisions are at best inconvenient and at worst have the potential to diminish domestic power and international relationships. Faced with a court telling them they are violating their regional and international obligations, states have elected to simply withdraw. Third, states no longer see any value domestically or internationally in wearing the badge of full African Court compliance. Whereas a few years ago, being a member of the exclusive club of states that was fully complying with the African Union’s apex human rights organ may have had domestic, regional, continental and international kudos, shifting approaches in all four arenas has negated the allure and prestige that may have once come with such membership. The reality is that there is no one answer, and an accurate answer probably contains a combination of all three of these possibilities plus a few others I haven’t thought of. But the fact remains we have seen an alarming reduction. To my mind this spate of withdrawals is also different from non-participation. The African Court has long beat the drum for states to sign up fully to the African Court with little success. This lack of success has often been seen as disinterest or apathy towards the African Court. What we are now encountering with these withdrawals are direct actions against the African Court. Put another way, you have to do nothing not to sign up, you have to something to actually withdraw.

What can be done? Immediately, the African Court should make public pronouncements either confirming the latest withdrawals as validly filed or otherwise. For all three withdrawals, it must make clear whether it will follow the Rwanda precedent and implement a twelve month notice period, at the very least giving prospective applicants from Benin, Cote D’Ivoire and Tanzania (which would be very late) clear guidance. If the Rwanda precedent does apply, the African Court must publicise the relevant deadlines for applications: November 2020 for Tanzania and April 2021 for Benin and Cote D’Ivoire.

We need to study and understand why it is that states decide they should withdraw from the African Court and whether this is a pattern or three random acts. This requires greater collaboration between local lawyers, activists and policy makers and their international counterparts. At The ACtHPR Monitor we are looking to curate a series of posts from anyone interested in the issue as well as raise the profile of these latest decisions, please do get in touch if interested.

I fully appreciate we are living in extraordinary times, when the fate of a regional human rights court may well be the least of our concerns, even if ordinarily it might be of interest. But the extent and timing of these withdrawals requires everyone to give this a moment’s thought. Put simply, we must keep the African Court on the human rights radar, because it seems that in the last six months around 93 million people (the approximate combined populations of Benin, Cote D’Ivoire and Tanzania) have lost access to a regional human rights court tasked with upholding their rights. More must be done to ensure millions more do not suffer from the same fate.