The AfCHPR’s New Due Diligence Benchmark in Centre for Human Rights v. Tanzania

[Arunava (Avi) Banerjee is a research assistant at the University of Tartu and an Erasmus Mundus scholar in the International Law of Global Security, Peace and Development (ILGSPD) programme]

In February 2025, the African Court on Human and Peoples’ Rights (AfCHPR or Court) handed down a unanimous judgement in the case of Centre for Human Rights and Others v. Tanzania (hereinafter Centre for Human Rights), fundamentally shifting the nature of state accountability for systematic and culturally-driven violence. This case concerned ritualistic attacks against persons with albinism (PWA), resulting in the Court finding that Tanzania violated Articles 4 (right to life) and 5 (right to dignity) of the African Charter on Human and Peoples’ Rights (ACHPR).

By addressing Tanzania’s obligations, the AfCHPR extended the state’s due diligence obligation from a passive test of procedural compliance to an active test of effectiveness (paras 197, 217, 241-242). Therefore, compelling the state to adopt the structural and cultural interventions necessary to uphold Article 5 in the face of systematic persecution. This judgement represents a critical leap for the AfCHPR, building on jurisprudence around the state’s due diligence duties regarding its human rights obligations. This post discusses and dissects the Court’s findings on this new standard, by critically evaluating the legal and political shortcomings of the judgement. 

Context for the Case

Centre for Human Rights arose as a direct challenge to Tanzania’s longstanding failure to responsibly address the systematic ritual-motivated violence against PWAs (para. 9). For years, PWAs across Tanzania were subjected to abductions, killings and trafficking of their organs (para. 8). These assaults were persistent persecutions rooted in a societal belief that PWA bodies brought power and prosperity. The state was fully aware, or should have been aware, of the scale, frequency, and predictability of the violence (paras 188-188).

Yet, Tanzania relied on a narrow defense, arguing that the existence of the general penal laws prohibiting murder and trafficking, together with occasional prosecutions, demonstrated compliance with its obligation under the ACHPR (paras 164-166). Tanzania’s response shows the limit of a purely procedural understanding of due diligence, which does not translate into meaningful protection.

The AfCHPR, recognising this, rejected Tanzania’s reliance on a formalistic approach and concluded that the widespread and recurring attacks, combined with the chronic failure to investigate and prosecute, revealed a structural omission far greater than isolated administrative shortcomings. During these proceedings, the AfCHPR noted Tanzania’s efforts as “inadequate, insufficient, and ineffective,” with at least ninety cases not being resolved favourably (paras 65, 150, 186, 273). In its view, the persistent persecution experienced by PWAs rendered the state’s actions to meet its due diligence obligations spurious and incapable of meeting the threshold of Articles 4 and 5 of the ACHPR. Thus, the Court provided for a powerful normative premise and reinterpretation of the positive obligations bestowed on the state even if it did not directly perpetrate the violence. 

AfCHPR on Active Due Diligence 

The AfCHPR’s reasoning is shaped by three emerging arguments that advance an active due diligence standard. Together they reflect different facets of states’ obligation under Articles 4 and 5, marking a significant shift in the Court’s understanding of state responsibility for systematic and culturally-driven violence. 

Due Diligence Through Effectiveness 

While arguing how state responsibility is assessed, the court rejected the idea that due diligence compliance is satisfied by the mere existence of penal laws and sporadic prosecutions (para. 361). Rather, it evaluated Tanzania’s response through its conduct and the effectiveness of its response, considering it deficient due to its failure to provide meaningful results against the consistent unresolved attacks against PWAs. Therefore, for the AfCHPR this demonstrated a breach of Tanzania’s positive obligations. 

This approach resonates closely with the reasoning of Judge Blaise Tchikaya’s Separate Opinion, which emphasised that due diligence obligations require a state to employ all means at its disposal to ensure that perpetrators cannot escape conviction (para 33). Therefore, the Court anchored Tanzania’s due diligence obligations beyond formal compliance, representing the emergence of an accountability test grounded in effectiveness. 

Duty to Address Structural and Cultural Drivers of Harm

The Court addressed the concerns on the substantive scope of states’ obligations under Article 5. It recognised that violence against PWAs is inseparable from the discriminatory beliefs, social stigma, and myths that normalise this persecution. In grounding the violations to dignity, it affirms that state responsibility extends beyond physical protection in addressing the broader socio-cultural environment which enables harm.

Such an interpretation requires Tanzania to engage with the structural and cultural roots of the violence directly. The Court’s reparation order requiring nationwide sensitisation campaigns reflects this shift; indicating that where existing social belief contributes to violence, the state’s due diligence obligation encompasses cultural interventions (para. 361).  In doing so, the Court expanded the duty to protect into a system for cultural governance, a concept only comparatively nascent in the AfCHPR’s jurisprudence. 

A Holistic Remedial Framework 

While addressing the nature of remedies arising from the breach of Articles 4 and 5, the AfCHPR noted that systemic violations cannot be addressed through penal measures alone. It thereby mandated Tanzania to adopt coordinated measures across school welfare, health and education sectors (para. 428). These included improving the conditions of shelters, for children with albinism, providing psychosocial and medical support, ensuring access to appropriate socio-economic services (para. 351). 

This approach reflects a structural understanding of due diligence which treats institutional failures as a source of institutional obligations. The AfCHPR’s approach closely aligns itself with structural remedies developed in the Inter-American Court of Human Rights (IACtHR), where systematic patterns of discrimination are addressed by multi-sectoral responses. With this interpretation, due diligence obligations encompass the broader protective ecosystem beyond policing or prosecution. 

Analysis and Critique 

While the AfCHPR’s articulation of a stronger due diligence obligation is a progressive triumph,  the judgement’s normative ambition exposes several legal and political fragilities of its legacy. The implementation of such a threshold risks significant pitfalls around compliance and threatens to undermine the Court’s efficacy and legitimacy.

Effectiveness an Impossible Standard?

The Court’s reliance on quantified impunity, based on ninety unresolved cases, as the definitive measure of liability creates a demanding threshold for Tanzania’s obligation (para. 188). While this idea is laudable, it risks being an excessive standard for the state. Judge Tchikaya’s insistence that the state must use “all the means at its disposal” imposes a severe positive obligation for the state (para. 33). Such a threshold, when juxtaposed with the reality of the state’s capacity constraints in funding, training, and judicial and police functions across vast jurisdictions, risks being liable for structural failures which it lacks immediate resources to fix.

Recent patterns of state inaction in Tanzania, including failures to adequately document and respond to violence against PWA’s in 2023-2024 and general apathy towards investigating human rights violations following the general elections, indicates a broader administrative inaction. Against this backdrop, the Court’s order to link state’s liability directly to statistical outcomes incentivizes it to manipulate reporting metrics or reclassify incidents rather than addressing its root causes.  This, therefore, leads to a potential evasion of the judgment’s original purpose of ensuring accountability.

Cultural Governance as Judicial Overreach 

The Court’s decision to mandate a nationwide sensitisation campaign as a remedy for violence against PWA’s reflects the necessity for structural intervention (para. 409). Yet, the AfCHPR’s approach of overt prescription through its judicial orders, risks transforming it into a de facto domain of policy design and implementation. This raises serious questions about the scope and limits of judicial intervention and the specificity of its remedies. Even in comparative systems such as the IACtHR, remedies are often framed around results, while allowing the states to have its own discretion regarding the means. For example, in González et al. v. Mexico (“Cotton Field”) the IACtHR mandated institutional reforms such as ensuring safety and protective safeguards without prescribing a specific cultural or public education initiative. Therefore, judicial imposition of a culturally sensitive order risks inviting political resistance; ultimately, failing to achieve the required cultural transformation. 

Political Fragility and the Backlash

Tanzania’s withdrawal of its Article 34(6) declaration of the ACHR which allows individuals and NGOs to directly access the Court in 2019 marked a clear defiance against the Court, signaling its broader resistance to AfCHPR’s judicial scrutiny. Against this political backdrop, when the Court now issues some of its most far-reaching orders against Tanzania, the prospect of a meaningful implementation of that order becomes significantly constrained. Therefore, though this order is legally necessary, it fuels the existing political backlash against the Court by reinforcing the existing narratives of judicial overreach.

Moreover, apprehensions of similar judicial scrutiny over time may reinforce skepticism among member states about the costs of staying within the Court’s competence. This skepticism has already manifested in dramatic withdrawals, such as Tunisia’s recent disengagement and may  also result in quieter forms of resistance that erodes the Court’s competence, including reduced compliance, and restrictive interpretations of the Court’s mandate, or reluctance to accept its authority going forward. The concern is not merely Tanzania’s non-compliance, but a broader systematic decay of the AfCHPR’s authority when state consent is indispensable to the survival of the African human rights framework. 

Conclusion: Looking Ahead

The AfCHPR’s decision in the Centre for Human Rights marks a significant doctrinal step in the evolution of positive obligations under the ACHPR. In interpreting due diligence as an active test rooted in effectiveness, the AfCHPR advances a compelling vision of state responsibility for vulnerable groups such as PWAs, confronted with culturally-driven violence. 

For all its ambition, there remain serious questions about the judgement’s implementation given the institutional and political limits of such an ambitious order. The effectiveness test risks surpassing state capacity, the order on cultural governance stretches the judicial authority, and Tanzania’s withdrawal further deepens concerns about enforceability. Therefore, the real test lies not in the Court’s reasoning but in whether the system is willing or able to carry the weight of what it now demands.

Photo attribution: “Albinos in Burundi – hunted for body parts” by International Federation of Red Cross and Red Crescent Societies is licensed under CC BY-NC-ND 2.0