Jurisdictional fiction? A dialectical scrutiny of the appellate function of the African Court on Human and Peoples' Rights

It is established case-law of the African Court on Human and Peoples’ Rights that it does not assume appellate jurisdiction over national courts. In several decisions rendered since its inception, the Court has consistently held that, when it examines cases of alleged violations of rights, it merely acts as an international court of first and final instance in vetting the conformity of domestic law and the conduct of municipal organs with international law to which the state concerned is a party. An overview of its jurisprudence however reveals a consistent challenge to the Court’s jurisdiction over cases that Respondent States argue had or should have been settled by domestic courts. The objections raised in related cases have led to a confrontational interaction between the Court and the states involved. On an increasing number of occasions, the ‘interaction crisis’ resulted in a political challenge to the very mandate of the Court and withdrawals or threats to retract from acceptance to its jurisdiction over sovereignty of the state and the integrity of domestic courts. Considering their submissions in respect of this issue, objections raised by Respondent States are genuine and therefore require principled reflections that the limited scope of the Court’s reasoning in individual cases or responses from its Registry do not and have not so far provided. In any event, the dialogue appears to have stalled as one of misunderstanding on the part of states and dilemmas for the Court. In this paper, I attempt to take up Sextus Empiricus’ role in assessing the veracity of both answers to the question whether the African Court exercises an appellate jurisdiction over courts of the Respondent States.Il est de jurisprudence constante de la Cour africaine des droits de l’homme et des peuples qu’elle n'exerce pas une compétence d’appel à l'égard des juridictions nationales. Dans de nombreuses décisions rendues depuis sa création, la Cour a conclu de manière constante que lorsqu'elle examine des cas d'allégation de violation des droits, elle juge seulement, en tant que juridiction internationale de première et dernière instance, de la conformité du droit interne et des actes des autorités nationales au droit international auquel l’État concerné est partie. Un aperçu de sa jurisprudence révèle cependant une contestation constante de la compétence de la Cour dans des affaires qui, selon les États défendeurs, auraient préalablement été ou dû être tranchées par les juridictions nationales. Les objections soulevées dans les affaires en question ont conduit à une interaction conflictuelle entre la Cour et les États concernés. Dans un nombre croissant d’affaires, cette « crise d’interaction » a entraîné une contestation politique du mandat même de la Cour de même que des retraits ou menaces de retrait de l’acceptation de sa juridiction pour cause d'empiètement sur la souveraineté des États et l’intégrité des juridictions nationales. Au regard de leurs conclusions sur cette question, les objections soulevées par les États défendeurs se révèlent fondées et appellent donc une réflexion de principe que ni la portée limitée du raisonnement de la Cour dans des affaires individuelles, ni les réponses de son greffe n’ont jusqu’à présent entreprise. En tout état de cause, le dialogue semble être suspendu entre des malentendus de la part des États et des dilemmes pour la Cour. Dans cet article, je tente de prendre le rôle de Sextus Empiricus dans l’évaluation de la véracité des deux réponses à la question de savoir si la Cour africaine exerce une compétence d’appel à l'égard des juridictions des États défendeurs.https://journals.co.za/content/journal/jlc_jclaam2021Centre for Human Right

Giving effect to the human rights jurisprudence of the court of justice of the economic community of West African states

The Economic Community of West African States (ECOWAS) was created in 1975 with the main aim of achieving political and economic integration among the 15 member states of the region. In its founding treaty, ECOWAS established a tribunal which was entrusted with a mandate to supervise the application and interpretation of Community norms. However, the tribunal thus established remained in limbo until it was replaced by a Court of Justice through a Protocol adopted in 1991. A series of events subsequently occurred and changed the fate of the ECOWAS Court of Justice (ECCJ), propelling it to the forefront of international human rights adjudication. In response to regional challenges and changes on the international scene which occurred in the late 1990s, ECOWAS revised its founding treaty in 1993 and expressly mentioned the African Charter on Human and Peoples Rights as the normative compass for realising Community objectives. This reform did not have much impact on the operation of the Court and its jurisdiction as, under the 1991 Court Protocol, individual complaints had to be instituted by member states on behalf of their citizens. In the absence of state-led complaints, the initial bench of judges was appointed in 2003 but the ECCJ did not hear a single case until 2004 when it had to reject its first individual application for lack of jurisdiction. In 2005, ECOWAS reacted to that limitation by adopting a Supplementary Protocol which, among other things, allowed the ECCJ to receive individual complaints of human rights violations. Endowed with a rebranded mandate, over time the ECCJ drew its material jurisdiction from the Revised Treaty s reference to the African Charter and read the silence of its Protocols as allowing complainants to institute human rights cases without exhausting local remedies as traditionally required in similar international proceedings. The scene was set, and between 2005-2012, the ECCJ announced itself in the arena of international courts by delivering some of the most significant human rights judgments. Issues adjudicated by the Court include slavery, arbitrary arrest and detention, fair trial, torture, education, and environmental pollution. In cases where it found a violation of rights in the African Charter, the ECCJ granted various categories of relief ranging from orders to immediately release the complainant to the payment of compensation up to $200,000. As the Community Court grows into an attractive human rights forum in the region, questions arise as to the tangible effects of its jurisprudence not only in particular cases which it has adjudicated but moreover regarding the development of the entire regime supporting its operation. This study investigates the effectiveness of the human rights jurisprudence of the Court as well as its influence on the domestic systems of member states and beyond the Community. Discussing nine merits judgments delivered by the ECCJ between 2005-2012, the study reveals that defendant states complied in 66 per cent of the cases. Of the three judgments that were not complied with, two involved a state known for its poor human rights, rule of law and both domestic and international compliance records. Cases selected are those in which the ECCJ made a specific order for defendant states to carry out. Various reasons may explain states behaviour towards the ECCJ s decisions. Main reasons for compliance include the political environment of the case and the nature of the remedy granted by the Court. Non-compliance instances were mainly explained by the nature of the government of the day and the nature of the rights violated and remedy afforded. It also appears that defendant states are more eager to pay compensation and undertake administrative measures than take thorough policy or legislative action. Importantly, the ECCJ s jurisprudential policy was brought to bear on compliance. As far as the influence of the Court s jurisprudence is concerned, the study found that decisions of the ECCJ are impacting on the domestic systems of defendant states, including the executive, judiciary and legislature. The level of influence however varies from one organ of the state to the other. As a general trend, of the three arms of state, courts appear to be the leading conveyers of influence, while executives have yet to fully play their part in giving a comprehensive effect to the jurisprudence of the Court. For instance, domestic courts have adjusted their jurisprudential policies or shaped the Community Court s jurisprudence in a manner that prevents clashes through resistance. Conversly, executives and legislatures have missed valuable opportunities to address such important issues as the improvement of socio-economic rights or curbing slavery. The human rights jurisprudence of the ECCJ has also begun to be echoed beyond West Africa. Such impact is exemplified by references to the work of the Community Court at the levels of the African Union, the African Commission on Human and Peoples Rights, the United Nations human rights mechanisms, and in other international bodies including the International Court of Justice. In all, state compliance with decisions of the Court is good, and although it has yet to reach the irradiating model of the European human rights system, the West African Court has established itself as an effective forum in that part of the African continent. Compared with the African Commission and Court, which are its main competitors in the region, the ECCJ appears to be more attractive through, among other factors, its proximity and direct access for individuals, the length of time to complete cases, remedies afforded and state compliance. With no doubt, the Court bears the promise of standing as a reknown international court if it maintains its current trends. The major recommendations made by the study in that line are for the Court to continue adjudicating with caution and favor cooperation in making use of both the judicial and political monitoring mechanisms in place to improve state compliance with its decisions.Thesis (LLD)--University of Pretoria, 2013.Centre for Human RightsLLDUnrestricte

The right to reparation’ as applied under the African Charter by Benin’s Constitutional Court

The purpose of the study is to determine the extent to which Benin’s Constitutional Court gives effect to the right to reparation under the African Charter and to examine relevant routes for the Court to discharge its duty fully and accurately. Ultimately, the study envisions suggesting Benin’s Constitutional Court a more genuine approach to the right to reparation with an emphasis on the content and scope of the right to reparation, competent remedial institutions and determination of the quantum in cases of monetary compensation.Mini Dissertation (LLM)--University of Pretoria, 2007.http://www.chr.up.ac.za/Centre for Human RightsLL

A crisis of design and judicial practice? Curbing state disengagement from the African court on human and peoples rights

In the space of four years, between 2016 and 2020, four of the ten states that had recognised the jurisdiction of the African Court on Human and Peoples’ Rights to receive cases directly from individuals and NGOs withdrew their declarations made under article 34(6) of the Court Protocol. While this form of contestation is not unprecedented in the history of states’ behaviour towards international courts, this article argues that the disengagement from the African Court’s jurisdiction involves peculiarities that specifically relate to the Court’s system design and its practice. The main contention in the article is that the declarationbased adherence to the African Court’s jurisdiction is in crisis due to a costbenefit imbalance. The article argues that although all four withdrawals resulted from decisions of the Court on important and contentious domestic socio-political issues, systemic features such as the lack of appeal, an overly restrictive review mechanism and the weak functioning of institutional shields contributed significantly to the withdrawal. The article also investigates administration of justice and judicial law making by the Court as factors that contributed to states’ distrust, before proposing options to curb the crisis and regain state adherence. Keywords: African Court; article 34(6) declaration; individual access; indirect access; withdrawal; legitimacy; discontent management; system design; judicial law making; systemic reforms.https://www.ahrlj.up.ac.za/pm2021Centre for Human Right