Over the last week, observers of the African Court on Human and Peoples’ Rights (African Court) have been gripped as news of Tanzania’s possible withdrawal of its Additional Declaration pursuant to Article 34(6) of the African Court Protocol emerged. At the time of writing, I haven’t seen any official statement from the African Court on this, but we now have a few press articles, plus a statement from Amnesty International denouncing the move. Given the lack of pushback from the African Court and what seems to be quotes from Tanzanian officials confirming the withdrawal, it appears that the withdrawal has indeed taken place.
In this post I want to explore a few issues relevant to the withdrawal based largely on correspondence I’ve had over the last week with people interested in Tanzania’s withdrawal and wanting to know more. Its again worth emphasising that the following is based on my understanding that Tanzania is simply withdrawing its Article 34(6) Additional Declaration with no changes/withdrawals to other related instruments.
What is the Additional Declaration?
A good place to start for those who may be new to the African Court. I go into a lot of detail on how individuals can access the African Court, in an article I wrote for the Wisconsin International Law Journal. But in short, we have three relevant instruments. First, we have the African Charter on Human and Peoples’ Rights (African Charter). The African Charter contains human and peoples’ rights that many will be familiar with, for example the right to fair trial (Article 7) and the right to life (Article 4). Every AU member state, apart from Morocco, has ratified the African Charter. The African Charter makes provision for the African Commission of Human and Peoples’ Rights (African Commission), but not the African Court; this is where there second instrument come in. The African Court Protocol is an additional instrument that essentially creates the African Court and allows AU member states to participate with it. Importantly, when AU member states ratify the African Court Protocol it allows cases to brought before the African Court by AU member states, the African Commission and Intergovernmental organisations. What ratification of the African Court Protocol does not do, is allow individuals or NGOs to directly petition the African Court. There is however a way to do this; an AU state must sign a declaration as found in Article 34(6) of the African Court Protocol, often referred to as the “Additional Declaration” or sometimes the “Special Declaration”. The wording of the Additional Declaration may not be long but it is very powerful. It allows individuals and NGOs to directly bring cases against the state, without having to go through the African Commission or persuade other states or intergovernmental organisations to bring a case on their behalf. Tanzania signed the Additional Declaration in March 2010, and since then Tanzanians and Tanzanian NGOs have been able to bring cases directly to the African Court alleging Tanzania has violated their rights as found under the African Charter or other international human rights instruments ratified by Tanzania. What we understand is that Tanzania has not withdrawn from the African Court entirely, but withdrawn its Additional Declaration.
Can Tanzania Do This?
Yes. This is not the first time this has happened. Last year Rwanda withdrew its Additional Declaration. I wrote an article on this for the African Human Rights Yearbook that is available here. Simply put, Rwanda applied to withdraw its Additional Declaration as it felt that persons accused of genocide-related crimes were using the African Court inappropriately. Putting the rights and wrongs of this argument to one side, the African Court considered the notion of withdrawal and found that Rwandan could indeed withdraw its Additional Declaration (just as a state is free to sign the Additional Declaration, it is also free to withdraw it), albeit with a 12 month notice period.
What Does this Mean for Tanzania?
Its important to note the 12 month notice period, or “cooling off period”. I have seen several reports on Tanzania’s withdrawal that fail to mention this crucial aspect of the Rwandan case. For Rwanda, this meant that the African Court would continue to accept cases relating up to one year after it withdrew its Additional Declaration. Whilst we have yet to receive all the information in the Tanzanian situation, I see no reason on the information I have seen why the same would not apply in this case. Reports tell us Tanzania submitted its withdrawal on 21 November 2019. This would mean applicants would have to submit applications by 21 November 2020.
What Does this Mean for the African Court?
We are going to go into more details of the potential wider ramifications of Tanzania’s withdrawal over the coming weeks on The ACtHPR Monitor, but it is worth flagging right now that (a) the African Court is based in Arusha, Tanzania and (b) that a large majority of cases relate to Tanzania. Whilst there is no reason I am aware of why Tanzania cannot continue to host the African Court even if it is not fully signed up to it, the optics are obviously difficult. In terms of the large majority of cases relating to Tanzania, as I mention above, based on the Rwanda precedent, all current cases on the African Court’s docket remain, as will all future cases for the next 12 months. This means the African Court is likely to rendering judgements relating to Tanzania for a while yet.
Can This Decision be Reversed?
We are hearing that there efforts at the UN level to try and persuade Tanzania to reverse its withdrawal- lets see what happens.
When Can We Expect Further Information?
The issue of timing is one I raised in my article analysing Rwanda’s withdrawal its Addition Declaration. In that case, the decision to impose a 12 month cooling-off period appeared to be handed down some six months after the withdrawal notice was submitted. The delay in part because the matter was litigated extensively. In effect, this appeared to mean that the notice period was only six months (the remainder of the 12 month notice period after the decision was rendered) putting prospective Rwandan applicants at an apparent disadvantage. Given that the issue of if/how long a notice period exists has now been considered, it is hoped the African Court can act quickly to clarify the position in this new case. The bottom line; unless told otherwise, prospective Tanzanian applicants have until 21 November 2020 to file cases before they will lose the opportunity for the foreseeable future.
As I say, we will have further posts in the coming weeks on this, but hopefully this serves as a starting point.