[Blog post] The beginning of the end of a home-grown African Court?

Last month, when most of the world was focused on COVID-19, Benin and Côte d’Ivoire withdrew their special declarations from the African Court on Human and Peoples' Rights. This happened right at a time when things began to look good for one of the most important ‘homegrown’ solutions to human rights violations on the African continent, writes Asser researcher Misha Plagis in a new blogpost. ‘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.’ 

By Misha Plagis 

The dominoes are falling, and the house of cards is starting to quiver, as last month two more African states withdrew their special declarations allowing individuals and NGOs from those states to bring cases directly to the African Court on Human and Peoples’ Rights (African Court). It is a devastating blow to the authority and legitimacy of the Court, after Tanzania also withdrew its special declaration back in November 2019.  

The African Court, based in Arusha, Tanzania, is Africa’s answer to a regional human rights court, much like the European Court of Human Rights or the Inter-American Court of Human Rights in their respective regions. It was established in 2004, and it is currently the primary judicial organ of the African Union. To date, 30 countries have signed the Protocol establishing the African Court. However, throughout its short history, only 10 states have provided their citizens and NGOs direct access to the African Court. The first withdrawal of such a declaration came in 2016 when Rwanda withdrew its declaration, Tanzania followed in late 2019, and most recently Benin and Côte d’Ivoire both did so in short succession in March and April 2020. These withdrawals come at a time when the African Court was starting to establish itself: It only received its first case in 2008, and has yet to finalise more than 100 cases, with the stream of cases submitted increasing over the years.    

Significance of Special Declarations
Special declarations are required to allow individuals and NGOs direct access to the African Court under articles 5(3) and 34(6) of the Protocol. Making a special declaration is completely voluntary and each state has autonomy to decide whether to submit one or not. Without such a special declaration, the African Court does not have jurisdiction over individual and NGO complaints, but would still have jurisdiction over inter-State cases (none have been submitted to date) and cases referred to it by the African Commission on Human and Peoples Rights (3 cases referred to date). The special declarations are therefore essential to ensure access to justice for victims of human rights abuses in Africa.

The withdrawals of the special declarations of two countries in such short succession have shaken the very foundation of the African Court’s future: Without individuals and NGOs bringing cases, will the African Court be able to effectively partake in protecting human rights on the continent? With only 6 states left (of the original 10), the situation is becoming increasingly concerning.

Resisting the African Court
Despite not being the first withdrawals of their kind, the move by Benin and Côte d’Ivoire have shocked many. The African Court is a far from perfect institution, and there are many issues that need to be addressed. However, for a time, even after the Rwanda withdrawal, things were looking up for the African Court: A number of countries deposited their special declarations, including most recently The Gambia (2018). The African Court’s docket was diversifying, and became less dominated by fair trial cases in Tanzania alone, and it was starting to build its body of jurisprudence (see my blog post here).

Now that picture has quickly become a lot more dire. With only six states left that allow individuals and NGOs to bring cases, and without a concerted effort to engage with the African Court, it is likely that its increasingly steady stream of cases will turn into a trickle, and potentially dry out in the future.

While in some circumstances a lack of cases concerning human rights would be something to celebrate, in this case, it would be due to a lack of access, and not due to a lack of violations. In fact, it would mean that those who suffer significant violations, and whose national judicial systems do not comply with the African Charter on Human and Peoples’ Rights, would have increasingly limited options.

Limited legal power
In the long run, the continued withdrawal of special declarations is likely to result in the African Charter not being further developed through legally binding interpretations thereof. Although there are two other human rights bodies that also fall under the African Union system—namely the African Commission on Human and Peoples’ Rights, and the Committee on the Rights and Welfare of the Child—neither of these bodies is a court, and so, in the legal sense, their power is limited.

The move by Benin and Côte d’Ivoire undermine both the authority and legitimacy of the African Court, and endanger one of the most important homegrown solution to human rights violations on the African continent. Not to mention that at a time when states are limiting rights for legitimate public health reasons, international courts and tribunals who adjudicate limitations on human rights might be more necessary than ever on the other side of this global pandemic.

The responses of other African states and the African Union are wanting. Yes, of course it is a matter of national sovereignty to decide to submit a special declaration or not. But the protection of human rights should be a priority for all. When a state withdraws, that decision should be interrogated and discussed, and ways forward should be found to ensure the utmost protection of human rights, strengthening institutions, and addressing the legitimate concerns of states.

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

Dr Misha Plagis is a 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.