Groningen Journal of International Law

International Law Under Construction

Strategic Litigation Before the African Regional Courts: Great Potential for Progressive Protection of Human Rights

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By Nani Jansen Reventlow |  

The African human rights system is the youngest regional human rights regime currently in operation. The adoption of the in 1981 also resulted in the establishment of the African Commission on Human and Peoples’ Rights in 1987. The African Commission was charged with the protection and promotion of human and peoples’ rights and the interpretation of the African Charter. In 1998, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights was adopted, thereby establishing a complementary counterpart to the Commission that could issue binding decisions.

The African Court on Human and Peoples’ Rights has been operational since 2006 and issued its first judgment on the merits in 2013. According to a recent press release, the Court has received 161 applications (for both individual decisions and advisory opinions) to date, of which it has finalised 32. Thirty countries have ratified the Protocol, giving the Court jurisdiction to assess these States’ compliance with the African Charter. Of these 30, eight countries have an active declarationRwanda’s declaration was withdrawn in 2016 – allowing individuals and NGOs to bring such matters directly before the Court (as opposed to accessing the Court via the African Commission). In recent years, the court has handed down decisions protecting the right to free expression, the right to a fair trial, the right to life and land rights, amongst others.

Human rights protection in the region does not stop at the African Court. Two of the four sub-regional courts, the ECOWAS Court of Justice and the East African Court of Justice, have handed down decisions on, amongst others, slavery, torture, press freedom, child rights and access to medical treatment. Both courts were originally set up as economic courts, but were subsequently either explicitly mandated to consider human rights cases (ECOWAS) or started unilaterally giving a more expansive interpretation to their mandate (EACJ).

The African regional courts are robust forums worth considering when pursuing human rights claims. They offer good perspectives for strategic litigation for a number of reasons, which include the following.

The possibility of pursuing human rights claims under a broad range of international human rights treaties

As mentioned above, the African Court’s mandate complements that of the African Commission in protecting and interpreting the African Charter. However, the Court’s mandate goes even further than that: Article 3 of the Protocol that established the Court states that its jurisdiction extends also to considering violations of “any other relevant Human Rights instrument ratified by the States concerned.”

The extensive scope of the African Court’s jurisdiction is unique compared to its counterparts in other regions, the Inter-American Court of Human Rights and the European Court of Human Rights, which only have an explicit mandate to consider violations concerning the regional human rights treaty they have been created to oversee. With its mandate, the African Court is in a unique position to issue binding decisions on human rights violations under treaties for which this normally is not possible, as the bodies overseeing the various UN human rights treaties have no binding decision-making powers. This potentially allows for the increased protection of those human rights where the African Charter is considered to fall short of other international standards – such as the right to a fair trial – or the protection of rights that are entirely absent from the Charter, such as the right to privacy.

The Court has applied these powers in a number of cases so far, such as the case of Konaté v. Burkina Faso, where it found a violation of the right to freedom of expression under Article 9 of the African Charter, Article 19 ICCPR and Article 66 of the Revised ECOWAS Treaty, and the case of APHD v. Cote d’Ivoire, where it found a violations of the right of equality before the law under not only the African Charter and the ICCPR, but also the African Charter on Democracy, Elections and Governance and the ECOWAS Protocol on Democracy and Good Governance. While the Court’s application of this competence has not been entirely consistent – in its recent decision in Ingabire v. Rwanda, for example, the Court found a violation of the applicant’s right to a defence under the African Charter alone, while the complaint had been framed under the ICCPR as well – the door for further exploration of the protection of human rights under other treaties than the Charter is clearly open. The ECOWAS Court has similar powers under Article 3(4) of the Supplementary Protocol, which mandates it to determine the “violation of human rights that occur in any Member State.”

The courts have expansive human rights jurisdiction

In its recent decision in the case of FAJ and Others v. The Gambia, the ECOWAS Court potentially established itself as the most progressive human rights court in Africa when it comes to temporal jurisdiction. The Court held that claims for the enforcement of human rights against ECOWAS Member States cannot be barred by the 3-year limitation period stated in the Court’s Supplementary Protocol. The issue had been unclear since the case of Femi Falana & Anor. v. The Republic of Benin & 2 Ors., where the Court had used Article 9 of said Protocol to determine whether an application filed in October 2007 regarding an alleged human rights violation that had taken place in April 2004 was admissible. By explicitly stating in FAJ that Article 9 did not apply to human rights claims and that any previous decisions stating the contrary hereby had been overruled in this regard, the Court unequivocally set the record straight.

Another notable feature of both the ECOWAS Court and EACJ is that these courts do not require the exhaustion of domestic remedies. The ECOWAS Court held in Ocean King Nigeria Ltd v. Republic of Senegal, that “the exhaustion of local remedies is not a condition precedent for the institution of an action for the relief of violation of human rights before [this Court]”. In the case of Hadijatou Mani Koraou v. Niger, the Court further confirmed that the existence of concurrent domestic proceedings was no bar to an otherwise admissible application to the Court.

The EACJ also does not require exhaustion of domestic remedies, opening the possibility of directly challenging human rights issues (to the extent they can be framed as a complaint about a violation of the East African Community Treaty – the EACJ’s human rights jurisdiction merits separate discussion) at the regional level. However, this advantage is balanced out considerably by the fact that the Court adheres to a strict limitation period of 2 months from the moment the violation took place and has explicitly rejected the doctrine of continuing violations in the case of Emmanuel Mwakisha Mjawasi and Others v. The Attorney General of Kenya. In this context, it is important to keep in mind that the EACJ has essentially carved out its own human rights mandate and therefore needs to strike a more careful balance in pursuing a mission to safeguard human rights while maintaining the support of the East African Community Partner States that created the Court.

The courts are prepared to hand down robust orders when finding a violation

While the finding of a violation can in itself provide a (partial) remedy to the applicant, a court’s ability and willingness to order a respondent State to provide adequate remedies is important not only for the individual or organisation bringing the claim, but potentially for many others affected by the harmful practice addressed in the case. The African Court has not shied away from providing robust relief. Human rights courts are not always keen on ordering States to change their legislation, but in both Konaté v. Burkina Faso and APHD v. Cote d’Ivoire, for example, the Court ordered the Respondent State to bring its legislation in line with the international human rights treaties it had violated. The ECOWAS Court, in its recent judgment on torture and press freedom against The Gambia, ordered the country to “immediately repeal” the laws that formed the subject matter of the application in line with its international obligations. This makes it possible to effect more systemic change, which is an important marker for strategic litigation: a case brought before these courts can not only help in bringing relief for the individual or group concerned, but could also potentially have an impact on the legal framework or practice in a country or even the region.

Altogether, these relatively young human rights courts have shown themselves to be willing and able to provide effective protection to those bringing a claim before them. There are other benefits to litigating in forums, including the relative speed with which cases are decided – compared to many other human rights tribunals, the African regional courts have managed to keep up an . As they become more popular with individuals and litigators, it is to be hoped that they can maintain the current pace while not diminishing the quality of their work.

Nani Jansen by Tetsuro Miyazaki - 2

Nani Jansen Reventlow is an international human rights lawyer. By day, she runs the Digital Freedom Fund, by night she works on taking new human rights cases to the African regional courts. Nani tweets @InterwebzNani. She litigated the cases mentioned (Konaté v. Burkina Faso and FAJ v. The Gambia) in front of the African Court on Human and Peoples’ Rights and the ECOWAS Court.

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