Africa: Why the African Court On Human and Peoples' Rights Matters

Jean Marc Ferré/United Nations
Participants at the 54th session of the U.N. Human Rights Council on September 11, 2023.
8 July 2024
Africa Center for Strategic Studies (Washington, DC)
By Sègnonna Horace Adjolohoun and Paul Nantulya

Despite limited enforcement capacity, the African Court provides an avenue for redress when national judiciaries are unable to dispense justice, underscoring its instrumental role in promoting norms and standards of conduct on the continent.

Emerging from decades of debate on ways to curb impunity in Africa, crystallized by the Rwanda genocide and the wanton violence that marked the wars in Liberia and Sierra Leone of the 1990s, the African Court on Human and Peoples' Rights (the African Court) was authorized by members of the Organization of African Unity (OAU) in 1998. The African Court's mission is to protect, promote, and defend human rights enshrined in the African Charter on Human and Peoples' Rights (the African Charter) of 1981, which states in its preamble that "freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples."

All African states are signatories to the African Charter, which upholds fundamental civil and political rights, like the freedom of speech and assembly, the right to free and fair elections for citizens to select their representatives, equal treatment under the law and a fair trial, and the prohibition against torture.

The framers of the African Charter foresaw scenarios where national courts would be unwilling or unable to handle cases involving the abuse of power by the executive branch.

The framers of the African Charter foresaw scenarios where national courts would be unwilling or unable to handle cases involving the abuse of power by the executive branch. They recognized that in such cases, citizens needed an avenue to table their complaints and receive redress for wrongs committed after exhausting domestic mechanisms. The OAU, later the African Union (AU), granted the African Court the legal authority to uphold and interpret the African Charter.

Established during a period of emerging democratization on the continent, the African Court was an effort to institutionalize norms and human rights standards as the OAU was transitioning to the AU with the aim of being a more effective and cohesive regional body and a genuine forum for regional accountability. The African Court was also intended to be an African judicial instrument to complement international courts, like the International Criminal Court (ICC). African governments have, at times, accused the ICC of disproportionately targeting Africans, even though African countries led the effort to establish the ICC.

These norms and standards have come under renewed strain in recent years with democratic backsliding on the continent and growing indications of impunity by AU member states. An avenue for legal redress has proven to be essential, given that national judiciaries in numerous contexts have either been co-opted or captured by ruling parties.

It is an opportune moment, therefore, to take stock of the African Court, its role, accomplishments, and ongoing challenges.

How the African Court Works

Based in Arusha, Tanzania, the African Court came into force in 2004 when the protocol establishing it had been ratified by more than 15 countries. It appointed its first judges in 2006 and began hearing cases in 2010. It is comprised of 11 judges from across the continent who serve 6-year terms, renewable once. The judges are selected by the AU Executive Council based on nominations from member states and then confirmed by the AU Assembly of Heads of States and Government. The African Court holds four ordinary sessions annually and extraordinary sessions when convened by its president.

A distinctive feature of the African Court is that citizens can bring cases directly to it. It is one of just three regional human rights courts (together with the European Court of Human Rights and the Inter-American Court of Human Rights) that has the power to hear cases directly from aggrieved citizens against their governments and order binding remedies if the complaints have validity.

It is therefore intended to play an integral role in preserving and safeguarding human rights, promoting norms and standards of conduct, and advancing democracy and stability.

The African Court can receive cases filed by the African Commission on Human and Peoples' Rights (which shares responsibility with the African Court for interpreting the African Charter), state parties to the protocol establishing it, African intergovernmental organizations, and nongovernmental organizations (NGOs) with observer status in this Commission.

The African Court can also hear complaints by an individual against a government, provided that the government concerned has accepted the Court's jurisdiction to receive cases from its nationals and NGOs, a measure that was written into the African Court's charter by the AU Assembly of Heads of State. If the Court establishes that a complaint is admissible, it will hear the case and deliver rulings.

There are 34 AU member states that are signatories to the protocol establishing the African Court. Of these, eight have recognized the Court's jurisdiction to accept complaints by individual citizens and NGOs: Burkina Faso, Malawi, Mali, Ghana, Tunisia, The Gambia, Niger, and Guinea Bissau. Four other countries have withdrawn their declaration of support for the African Court to hear cases from citizens: Rwanda (in 2016), Tanzania (2019), Benin (2020), and Côte d'Ivoire (2020).

Before a case is heard, the judges must first establish jurisdiction and admissibility. Jurisdiction must meet four tests.

  • Material Jurisdiction--The allegations relate to violations of human rights elaborated in the African Charter or any other human rights instrument ratified by the state concerned.
  • Personal Jurisdiction--Complainants must be from one of the four categories that can file cases at the African Court.
  • Temporal jurisdiction--The alleged violations must have occurred after the state concerned had ratified the protocol establishing the African Court.
  • Territorial jurisdiction--The alleged violations must have occurred on the territory of the concerned state.

The examination of complaints and delivery of judgments, rulings, provisional measures, and opinions follows due process that is applied in any properly constituted court. The Court will hear both sides, weigh the evidence, call in witnesses as necessary, and deliver judgments.

The African Court receives about eight cases a year on average. Since it became operational in 2010, the Court has received 340 applications on contentious matters and 15 requests for advisory opinions. The Court has disposed of 205 applications and 15 advisory opinions. It has 135 pending applications.

Significance of the African Court

The African Court's rulings are binding for all AU member states, carrying concrete legal and reputational significance for all parties involved. Every case brought before the Court, moreover, advances norms of human rights and the rule of law. It therefore reinforces the integrity of regional and international courts as a means of recourse when national judicial mechanisms have been exhausted.

The African Court's rulings are binding for all AU member states.

There are many illustrative cases. In 2014, for example, the African Court ruled the government of Burkina Faso should provide reparations to the relatives of Burkinabe investigative journalist, Norbert Zongo, for his assassination in 1998. The Court found that the government had failed to adequately investigate and pursue the perpetrators of Zongo's murder (believed to be members of the Presidential Guard) and that the killing of the journalist was intended to intimidate other journalists, thereby stymieing freedom of expression. The Burkina Faso government honored the Court's ruling by paying the reparations and resuming the investigation, which led to the arrest in France of the former president's brother, François Compaoré, who continues to fight extradition to Burkina Faso.

The African Court ruled in 2023 that senior civil servants in Tanzania could not be deployed to organize national elections given the threat this posed to political neutrality and citizens' rights to free and fair elections. The practice had been instituted under former President John Magufuli and upheld by Tanzanian courts, prompting Bob Chacha Wangwe and the Legal and Human Rights Centre of Tanzania to take the case to the African Court. In response to the ruling, the Tanzanian government under President Samia Hassan has agreed to amend the National Election Act and the Criminal Procedure Act.

The African Court also ruled in 2018 that the criminal conviction and imprisonment of opposition leader Ingabire Victoire Umuhoza in Rwanda was a violation of her freedom of expression for stating that the crimes against humanity committed during the Rwandan genocide were perpetrated against Hutus as well as Tutsis. The ruling is seen as having facilitated Ms. Umuhoza's release from prison later that year.

In 2018, the African Court ruled that aspects of Mali's 2011 Code of Persons and the Family--including the validity of marriages involving child brides, non-consenting individuals, and marriages in absentia--violated not only the human rights treaties of the AU, but also the UN Convention on the Elimination of All Forms of Discrimination Against Women. The case was brought by two Malian NGOs that were unable to challenge the law under the Malian legal system.

Not all cases result in judgments in favor of complainants. For example, in the matter of Romward William v. United Republic of Tanzania on the alleged violation of the right to life, the African Court found that there was no error in due process and that the applicant's arrest and conviction were not arbitrary. However, it also found that the imposition of the mandatory death sentence contravened the African Charter and duly ordered Tanzania to bring its penal code in line with the Charter's provisions. It also ordered Tanzania to vacate the sentence, remove the applicant from death row and rehear his case on sentencing through a procedure that allowed judicial discretion.

There are many other examples of the African Court's significance. Perhaps most consequentially is the sheer number of cases in the Court's docket. This shows that the Court continues to have the confidence of citizens around the continent as a "court of last resort" when they cannot pursue justice through domestic channels.

While not all of the African Court's orders are implemented, the Court's mandate remains significant because of the important precedents it establishes and that every case benchmarks norms of human rights and state parties' responsibilities toward their citizens. These norms, in turn, are cited and adopted by other African Union organizations, the Pan-African Parliament, and national bodies across the continent. Tellingly, these are norms and standards that even those who disrespect them want to be seen upholding.

The African Court also serves as a reminder that human rights are an African concern and not just a Western construct. This dispels the argument advanced by some that Africans who advance human rights and demand higher standards from their governments are merely "puppets" of Western actors.

Challenges Facing the African Court

Despite its important accomplishments, the African Court faces a host of challenges. The Court does not have enforcement capacity, for example, a problem it shares with other regional and international courts like the East African Court of Justice, the International Criminal Court, and the International Court of Justice. It therefore cannot enforce its rulings and has no power to compel states to respect its orders.

A case in point is Côte d'Ivoire, which is in breach of the Court's 2017 order to pay its citizen Kouadio Kobena Fory roughly $73,360 for violating his human rights. Kenya is also in violation of a 2017 order to pay $1,201,520 to the African Commission on Human and Peoples' Rights acting on behalf of the Ogiek peoples who had been dispossessed of their lands. The monies were to be deposited in a community development fund. In some cases, states will simply ignore the Court even when it sends representatives to their capitals. Many view it as an infringement on their sovereignty.

The African Court can follow up on compliance through its publicly released annual reports, direct engagement with the African Union Commission, participation in AU summits and sensitization meetings with member states, and consultations with other regional and international courts. However, these do not guarantee that its orders will be respected.

The volume of cases brought to the African Court is inversely correlated to the robustness of democratic institutions among AU member states.

The volume of cases brought to the African Court is inversely correlated to the robustness of democratic institutions among AU member states. Today the Court faces a backlog of complaints, numbering in the hundreds. This is occurring alongside the backdrop of increasing repression against human rights defenders. Hence, it can be argued that the Court's register is a reliable early warning indicator of shrinking democratic space. If the continental trend of democratic backsliding continues, it means a growing number of African nationals are unable to seek justice within their own countries.

Illustratively, one of the African Court's strongest supporters since its inception has been Burkina Faso, which had fully complied with all of the Court's decisions. Yet, today, that country is led by a military junta that is doing its best to block a claim by survivors of a massacre that took place in February 2024. The massacre was allegedly committed by members of the military.

Relatedly, only a minority of African governments have supported the African Court's jurisdiction for hearing cases directly from aggrieved individuals and civil society groups. Moreover, this number is dwindling. This denies African citizens a crucial mechanism by which they can petition to access justice when all local avenues are blocked.

Priorities for the Court Over the Next 10 years

Addressing these problems will require a shift in attitudes on several levels. First, African countries must respect the conventions they sign and have the integrity and foresight to allow key institutions like the African Court and the African Commission on Human and Peoples' Rights to operate properly. It sends an unfortunate message that African governments are constraining African institutions from discharging their duties to African citizens.

Second, the independence and autonomy of key institutions like the African Court, the African Commission on Human and Peoples' Rights, and the Pan-African Parliament should be at the center of the ongoing AU institutional reform process.

Third, there is a great need for bottom-up pressure from African civil society institutions like the Pan African Lawyers Union and the African Court Coalition, among others, to defend the African Court and hold governments to their commitments.

The African Court views itself as the preeminent judicial mechanism in Africa without which the continent's Agenda 2063 objectives will not be fully met. This Agenda envisions an Africa that is prosperous, independent, secure, and democratic. The preservation of democracy and human rights is central to this. As long as citizens are unable to enjoy their rights and fulfill their aspirations, the continent will continue to lag behind.

It begins with all 54 member states recommitting themselves to the goals of the AU Charter, ratifying the protocol establishing the African Court, and signing on to the provision allowing individuals to petition the Court. Anything less raises questions about these governments' commitment to upholding the norms and values to which generations of Africans have aspired.

Dr. Sègnonna Horace Adjolohoun is an Extraordinary Lecturer at the Center for Human Rights at the University of Pretoria, and Principal Legal Officer of the African Court on Human and Peoples' Rights. The views expressed herein are his own and should not be construed as representing the official positions of the African Court, any other organ of the AU, or its regional institutions.

Paul Nantulya is a Research Associate at the Africa Center for Strategic Studies.

Additional Resources

Read the original article on ACSS.

Tagged:
Copyright © 2024 Africa Center for Strategic Studies. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.

AllAfrica publishes around 600 reports a day from more than 110 news organizations and over 500 other institutions and individuals, representing a diversity of positions on every topic. We publish news and views ranging from vigorous opponents of governments to government publications and spokespersons. Publishers named above each report are responsible for their own content, which AllAfrica does not have the legal right to edit or correct.

Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica. To address comments or complaints, please Contact us.