[Policy paper] Supporting the mandate of the African Court

On 3 July 2020, Asser researcher Misha Plagis co-organised an expert round table with the Centre for Human Rights (University of Pretoria). During the round table, 20 experts on the African Court on Human and Peoples’ rights (hereinafter ‘African Court’ or ‘Court’) shared their views on the current challenges facing the Court, especially the recent withdrawals affecting its jurisdiction, and offered potential solutions. The policy paper, authored by Plagis and Michael Gyan Nyarko, on the outcomes of this event is now available.

A Court in crisis?

Is the African Court in crisis? In early 2020, Benin and Cote d’Ivoire withdrew their special declarations from the Court (following earlier withdrawals from Tanzania and Rwanda), causing Plagis to point out in May that ‘with only six states left that allow individuals and NGOs to bring cases, it is likely that the African Court’s increasingly steady stream of cases will turn into a trickle and potentially dry out.’

During the round table not all participants agreed that the withdrawals present a ‘crisis’ as such. Opponents of the ‘crisis’ label view emphasized that of the four withdrawals, all had only withdrawn their special declarations that allow individuals and NGOs direct access to the Court, and not withdrawn from the jurisdiction of the Court as a whole.

Finding solutions

Although participants could not agree on whether the present situation constitutes a ‘crisis,’ there was a strong consensus that withdrawals pose a serious threat to the future of the Court. Urgent and widespread changes are necessary, particularly with regard to the Court’s communications and relationships with Member States. Participants proposed the following improvements: 

• Improve the Court’s relationships with Member States ­– Participants suggested a variety of strategies to achieve this including relationship building through jurisprudence, sensitisation missions, and more frequent communication with States.
• Improve quality of judgements – The Court needs to produce more robust decisions, especially when its authority is being challenged.
• Enhance the complementarity between the African Court and Commission – Participants suggested that these institutions could join forces during sensitisation missions, to clarify the role and mandate of the Court.
• Clarify the (subsidiary) jurisdiction of the Court – Many States have objected to the Court’s jurisdiction claiming interference in their national judicial systems. Therefore, the Court should further specify its legal status and capacities.
• Communicate more frequently and more effectively with the public and with Member States ­– Participants recommended that the Court make public statements, rather than bury its positions in case law. The Court should also make a greater effort to maintain communication with states in the pre- and post-judgement phases of the legal process.
• Recognise and utilise supporters to its advantage – The Court should identify States that have been receptive to it to serve as ‘champions of human rights.’ Building a supportive community of States will enhance the Court’s regional legitimacy.
• Look for partners beyond Member States and the African Union – National Bar Associations, human rights organisations, and other key stakeholders can provide leverage and help support the Court’s mandate.

To learn more about the outcomes of this roundtable, read the full policy paper here.

Dr Misha Plagis is a postdoctoral researcher at the Asser Institute in the Advancing Public Interests in International and European Law research strand, which aims to critically examine how International and European law may further the protection of public interests in a globalising (and privatising) world. She is also the Associate Editor of The ACtHPR Monitor Blog, which aims to provide independent news, comment, and debate on the African Court. Her research focusses on international human rights law, with a special focus on the African Court of Human and Peoples’ Rights and the African Union.

Further reading

Nicole De Silva and Misha Plagis, A Court in Crisis: African States’ Increasing Resistance to Africa’s Human Rights Court, Opinio Juirs, 19-05-2020

Misha Plagis and Alice Banens, Episode 24 – The Incredible Shrinking Court with Misha Plagis and Alice Banens, Asymmetrical Haircuts podcast, 15-05-2020

Apollin Koagne Zouapet and Misha Plagis, Braamfontein encroaching? An internationalist reading of the South African Constitutional Court judgement on the SADC Tribunal, South African Journal on Human Rights, 2020, Issue 35, Vol. 4