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Keep Talking: The Release of the Joint Law Report 2019

Firstly, a belated happy near year to all our Monitor readers!

In this first post of the year, I wanted to highlight something that I hope many readers have already read- the recently released Joint Law Report 2019. The Joint Law Report is a new venture from the African Court on Human and Peoples’ Rights, Inter-American Court of Human Rights and European Court of Human Rights. This product is exactly what it sounds like; a review of the most important 2019 cases from the African Court, Inter-American Court and European Court. In and of itself, this report is notable as the first of its kind, providing rich pickings for legal practitioners, activists and researchers who can use it to quickly review and understand case law from 2019 across three regional human rights courts.

But over and above the Joint Law Report’s obvious use, I wanted to recognise the cooperation required for a product like this. Put simply, cooperation across three courts, especially the first one, is hard. This is a great sign of a burgeoning recognition between regional human rights courts that they are going to be most effective when they work together. Rather than operating in self-contained silos, these courts, not only referencing each other’s case law, but perhaps equally as importantly talking to each other outside the confines of judicial decision making should not only be welcomed but encouraged. The more these courts talk to each other, the more they can explore and share concerns, difficulties and issues. This can in turn improve their work, ultimately leading to better human rights protection for everyone under the jurisdiction of the three courts. I hope this becomes an annual product, not only assisting in disseminating leading caselaw, but keeping the courts talking.

You can find the report here

Special Declaration withdrawals, a review

Sunday, 22 November 2020, marks a year since Tanzania withdrew its special declaration under article 34(6) of the Protocol. As a result, as of next week, individuals and NGOs cannot bring new cases directly to the African Court. 

The withdrawals in late 2019 by Tanzania, and Benin and Côte d’Ivoire in mid-2020, mark an important moment in the Court’s history. Without individual access, the Court could find itself in short supply of cases. That is not to say there aren’t human rights issues in the AU that deserve attention, but rather that jurisdictional barriers remain between victims of human rights abuses and the Court.

The steep rise of withdrawals has spurred the publication of a number of pieces that analysed the withdrawals and their consequences. The Court has also added a new section to its website this year: An overview of which States have submitted (and withdrawn) special declarations (available here). In this post we provide an overview of some of the publications discussing the withdrawals, and encourage readers to email us with links to further blogs/publications that can be added to this list (acthprmonitor@gmail.com).  

List of publications:

Apollin Koagne Zouapet, ‘Victim of its commitment … You, passerby, a tear to the proclaimed virtue’: Should the epitaph of the African Court on Human and Peoples’ Rights be prepared?, EJIL:Talk! (5 May 2020)

Oliver Windridge, Under Attack? Under the Radar? Under-Appreciated? All of the Above? A Time of Reckoning for the African Court on Human and Peoples’ Rights, Opinio Juris (7 May 2020)

Misha Plagis and Alice Banens, Episode 24 – The Incredible Shrinking Court with Misha Plagis and Alice Banens, Asymmetrical Haircuts podcast (15 May 2020)

Nicole De Silva and Misha Plagis, A Court in Crisis: African States’ Increasing Resistance to Africa’s Human Rights Court, Opinio Juris (19 May 2020)

Tetevi Davi and Ezechiel Amani, Another One Bites the Dust: Côte d’Ivoire to End Individual and NGO Access to the African Court, EJIL:Talk! (19 May 2020)

Misha Plagis, The beginning of the end of a home-grown African Court?, Asser Blog (20 May 2020)

Sègnonna Horace Adjolohoun, A crisis of design and judicial practice? Curbing state disengagement from the African Court on Human and Peoples’ Rights, African Human Rights Law Journal (2020) Vol. 20, No 1, pp. 1-40.

Nicole De Silva, Individual and NGO Access to the African Court on Human and Peoples’ Rights: The Latest Blow from Tanzania, EJIL:Talk! (16 December 2019)

Amnesty International, Joint Statement Condemning Tanzania’s Withdrawal of Individuals Access to the African Court, 2019

Oliver Windridge, Assessing Rwexit: the impact and implications of Rwanda’s withdrawal of its article 34(6)-declaration before the African Court on Human and Peoples’ Rights, African Human Rights Yearbook, 2018, Vol. 2, pp. 243-258.

 

* Correction: An earlier version of this post published on 12 November 2020 claimed the withdrawal would take effect on 14 November 2020, in line with the information on the Court’s website. However, according to the Court’s decision in Andrew Ambrose Cheusi v. Tanzania (para. 39), the withdrawal will only take effect on 22 November 2020, 12 months after Tanzania deposited its withdrawal with the Chairperson of the African Union Commission (on 21 November 2019). We have, therefore, amended this post to reflect the Court’s decision instead.

The European Court of Human Rights vis-a-vis the African Court of Human and Peoples Rights

One of this week’s contribution is a collaboration between William and Martin. William Hamilton Byrne is a PhD Fellow at iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts, University of Copenhagen. Martin Lolle Christensen is a PhD Fellow at the European University Institute, Florence.


 

The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, ‘ECHR’) was adopted by the State parties of a newly founded international organization, the Council of Europe, on 4 November 1950. Described almost universally in terms of its successes, the European Court of Human Rights (hereinafter, the European Court) has grown from the humble origins of sporadic adjudication by the European Commission for Human Rights against a small number of Western European States to a complex bureaucracy of compulsory adjudication that covers the large part of geographical Europe, with over 10,000 issued judgments, and 4 new cases registered per day.

Since 1998, the European Court has been the centre of the European system for human rights protection as the adjudicator of rights claims under the Convention. The ECHR contains a structure and content that is not dissimilar to the African Charter. The ECHR (as amended by Protocol 11) is comprised of three parts.  Articles 2-18 contain a list of rights and freedoms, supplemented by a number of protocols that provide for additional rights and freedoms.  Articles 19-51 provide for the operation of the European Court, Articles 52-59 contain miscellaneous provisions. 

 

SOURCES AND INTERPRETATION

The rights and freedoms contained in the ECHR are generally classified as civil and political rights. These include the classic fundamental freedoms, such as the right to life (Article 2), the prohibition of torture (Article 3) and the right to liberty and security (Article 5), as well as rights that have proven to be tremendously important in modern democratic societies, such as the right to privacy (Article 8). Unlike the African Charter, the ECHR does not provide for social, economic, or cultural rights, these are the subject matter of a separate treaties in the Council of Europe, such as the European Social Charter.

The Court has developed principles of interpretation that it applies to the ECHR. Firstly, the principle of effectiveness, by which ECHR rights are interpreted in a manner that renders their exercise ‘real and effective.’ Secondly, the ‘living instrument’ doctrine, by which the ECHR is interpreted in accordance with present standards, and relatedly, whether a ‘European Consensus’ exists on a matter in question. Finally, the ‘margin of appreciation,’ granting State Parties leeway in their implementation of the ECHR, which has become increasingly prominent in light of a greater emphasis on subsidiarity in recent years by which the Court affords some degree of leeway to States in their implementation of the rights and obligations that are contained in the Convention.

The Convention does not explicitly mention the sources of law to be applied by the Court in deciding a dispute under the terms of the treaty. Article 32 provides that ‘(t)he jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols…’. This is generally understood to mean that the primary source of law for the Court to apply is the treaty itself and its accompanying protocols. The Court thus makes reference to its own treaty in every single case, and also, in this respect, how it has previously been interpreted in its own case law. The Convention does include a ‘Most Favourable Treatment Clause’ in Article 53, which states that the convention cannot be interpreted to derogate or construed to avoid any other commitments to human rights that the member states is a part of, and so connects the protection in the ECHR to other relevant international human rights treaties. This clause is rarely used however.

It is not the convention itself but the aforementioned interpretive principles that the Court utilizes to refer to external sources. Through the principle of effectiveness and evolutive interpretation, the ECtHR may find inspiration in external sources of law and the practice of other international courts. Likewise, the general rule of interpretation in international law found in Vienna Convention on the Law of Treaties allows for the systemic integration of any relevant rule of international law applicable between the parties (VCLT art. 31.3.c.). This general rule of interpretation has often been acknowledged by the European Court. As the Court has said, the convention cannot be interpreted in a vacuum (Loizidou v. Turkey para. 43).

The Court has made reference to a number of different legal sources to interpret the content of the Convention. The circumstances in which the Court will draw on external legal materials remains disputed, for it has not expressed a clear methodology for doing so.  Evidence suggests that the Court refers to ‘external sources’ in approximately 70% of its cases. In this context, the Court has relied on a variety of treaties and soft law instruments. However, it has been argued that circumstances in which it relies on external sources to expand the interpretation of the Convention are quite rare. Indeed, the evidence suggests that the Grand Chamber of the Court cites external sources to support, on average, only 1.5 arguments in a case. (See Dorothea Staes, When the European Court of Human Rights refers to external instruments: Mapping and justifications, PhD thesis, Université Libre de Bruxelles and Université Saint- Louis, 2017)

 

THE AFRICAN AND EUROPEAN SYSTEMS

The African Human Rights System under the auspices of the African Union is not a young system, with the Banjul Charter coming into effect in 1986, and the African Commission in 1986. However, the European Court did not start referring to the African system until this decade, although the practice of referring to a wide number of relevant international material started much earlier.  To this date, the European Court has referred to the African Charter in 19 judgments and the African Commission’s reports and declarations in 26 judgments (including dissenting opinions). The references to the African Commission must be said to be of greater value for the development of trans-regional judicial dialogue, for through these references, the European Court recognizes not only a legal instrument, but also the legal reasoning of its African peers. The references are primarily to point to the existence of a broad consensus of a right beyond Europe, and thereby highlights the coherence of an international human rights jurisprudence. While the European Court has not yet cited the emerging jurisprudence of the African Court, there is still dialogue between the regional institutions, including visits and exchanges of judicial experiences, which is meant to foster judicial cooperation between the two courts. The institutions also exchange new legal materials on a formal basis, including recently issued case law.

Arguments for transnational judicial dialogue suggest that this is not a one-way street. That is, there is no reason why the African Court should also not refer to jurisprudence of the European Court when it seeks to interpret the African Charter in its own cases. After all, many of the provisions in the Charter are similarly worded to similar provisions in the ECHR. In fact, early evidence suggests that, of 62 finalized cases, the African Court has referred to the European Court in some 14 cases, primarily in judgments on the merits, and particularly when delving into new areas of jurisprudence. However, this is the subject of a separate blog post in this series: see here. Also see, for example, judicial dialogue organised by the African Court.

 

CONCLUSION

In conclusion, it can be said that it remains the case that the extent of cross-fertilization has thus far been hindered by the limited number of cases in the docket of the African Court. However, early signs suggest that the future looks promising. It is hoped that this process of trans-regional judicial dialogue by way of cross reference between cases will continue unabated. The African Court will undoubtedly be able to seek guidance from the vast body of ECHR jurisprudence dealing with substantially similar rights and freedoms that are contained in the African Charter. As the European Court enters into new territory not foreseen by the drafters of the ECHR, such as issues arising from people’s rights, it should have a lot to learn from the African Court too.

What lessons can be learned from the Inter-American system of human rights protection?

Mónica Leonardo (LL.M.) is a Guatemalan attorney specializing in human rights. She holds a law degree from Universidad Rafael Landívar in Guatemala and a Master of Laws degree from Georgetown University, in Washington, D.C., where she attended as a Fulbright Scholar. She is a proud alumna of Pearson United World College and a member of the Salzburg Global Seminar. She has worked as a consultant for United Nations agencies, USAID and GIZ, international NGOs and grassroots organizations. Mónica has kindly written a piece for this special series on the judicial dialogue between regional human rights courts from the perspective of the Inter-American system.


The Inter-American Court of Human Rights is one of three regional human rights tribunals, together with the African Court of Human and Peoples’ Rights and the European Court of Human Rights. While the judicial dialogue between the former two and the latter has enriched their respective jurisprudences, there has been a limited cross fertilization between the Inter-American and the African Human Rights systems. While treaties, instruments and legal traditions differ, the basic principles underlying them, in particular the protection of human rights and human dignity, form a common ground. Legal reasoning in respect of the application of these principles in one system can be a source of inspiration in another, notwithstanding their differences. Because of this, the African Court of Human and Peoples’ Rights can look at the human rights principles established by the specialized regional bodies in the Americas, to enable the circulation of a common understanding of fundamental rights.

 

THE OAS

The American States, in the framework of the Organization of American States, adopted a series of international instruments that have become the foundation of a regional system of human rights promotion and protection, known as the Inter-American System for the Protection of Human Rights. This system recognizes and defines the rights enshrined in those instruments, and establishes obligations with the purpose of promoting and protecting such rights.

The Inter-American System was formally started with the passing of the American Declaration of the Rights and Duties of Man in 1948. Additionally, the System includes other instruments, most prominently, the American Convention on Human Rights, an international treaty that contemplates the rights and liberties that must be respected by States Parties and establishes the Commission and Court as organs competent to hear issues regarding the compliance of agreements undertaken by States Parties to the Convention. The Convention has two additional protocols: The first is the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, or “Protocol of San Salvador,” and the second, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. Other instruments are the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women; and the Rules of Procedure and Statutes of its organs.

 

ORGANS OF THE OAS

The Inter-American System of Human Rights is comprised of the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights. The primary function of the Commission is to promote the observance and defense of human rights and serve as an advisory body to the Organization of American States in such matters. On the one hand, the Commission has competencies with political ramifications, among which special emphasis should be given to the occurrence of visits in loco and the preparation of reports about the human rights situations in Member States. On the other hand, it undertakes functions with a quasi-judicial dimension. It is via this latter form of competence that it is able to receive denunciations of individuals or organizations relating to human rights violations, examine these petitions, and adjudicate cases with the assumption that they comply with admissibility requirements.

Among its most notable achievements is the 1978 report denouncing human rights violations commit­ted by the Anastasio Somoza regime in Nicaragua and the 1980 report on Argentina that called international attention to systematic and massive abuses in that country, particularly the kidnapping and forced dis­appearance of thousands of opponents to the mili­tary government that ruled from 1976 to 1983. A 1998 site visit to Peru led to a groundbreaking report that accurately detailed, for the first time, the precarious situation of the rule of law under the government of then-President Alberto Fujimori.

The Inter-American Court is an autonomous legal institution whose objective is to interpret and apply the American Convention. The Inter-American Court exercises a contentious function, in which it resolves contentious cases and supervises judgments; an advisory function; and a function wherein it can order provisional measures.

Under the American Convention, only States Parties and the Commission have the right to submit a case to the Court. Therefore, the Court cannot entertain petitions submitted by individuals or organizations. As such, individuals or organizations that believe a situation exists in violation of the Convention and wish to use the Inter-American System must direct their complaints to the Inter-American Commission, which is competent to hear petitions presented by any person, group of persons, or legally recognized non-governmental entity that may have reports or complaints of violations of the Convention by a State Party. The Court is competent to hear any case submitted to it with regards to interpreting and applying the Convention, provided that the States Parties in the case have recognized its contentious jurisdiction. Each State Party can, at the time of formalizing its instrument of ratification or adhesion to the American Convention, or at any other prior time, declare that it recognizes the jurisdiction of the Court as an ipso jure obligation.

The strengthening of the case system has not only allowed human rights advocates to secure justice for individual petitioners, but to facilitate the structural changes needed to prevent future violations. In several cases, most notably Barrios Altos, the Inter-American Court of Human Rights concluded that amnesty laws for serious human rights viola­tions committed during the military dictatorships were incompatible with the Inter-American Convention on Human Rights. In 2005, the Supreme Court of Justice of Argen­tina cited these Court decisions as a legal precedent for declaring unconstitutional the amnesty laws approved in the mid-1980s that had ended the pros­ecution of military officers that committed crimes against humanity. Following this decision, cases against people accused of serious human rights vio­lations during the dictatorship were opened for the first time in Argentina. Similarly, in Peru, the Attor­ney General issued a resolution requiring all prosecu­tors who had participated in the amnesty processes to request that their respective courts comply with the sentence by the Court. These decisions are prob­ably the most important in the Inter-American sys­tem. By eliminating impunity for violations that cost tens of thousands of lives, they strengthened the rule of law across the region.

 

THE FIRST CASE: VELÁSQUEZ

The States parties to the American Convention on Human Rights “undertake to respect the rights and freedoms recognized [therein] and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination” on certain cited grounds (art. 1). These undertakings have been interpreted by the Inter-American Court of Human Rights in particular in its first case, Velásquez, which concerned the disappearance and likely death of Mr. Angel Manfredo Velásquez Rodríguez, a student at the National Autonomous University of Honduras. The ruling marked the beginning of the Court’s jurisdictional activity, and also greatly contributed to the development of international law on human rights. It established the jurisprudential basis for interpreting the obligation to respect and guarantee human rights, set forth in Article 1 of the Inter-American Human Rights Convention and conceptualized the forced disappearance of people as a crime involving multiple violations of the most fundamental rights established in the Convention. This case has been cited by the African Court on Human and Peoples’ Rights in the cases of Rev. Christopher R. Mtikila v Tanzania, Kennedy Owino Onyachi and Charles John Mwanini Njoka v Tanzania, and Actions Pour la Protection des Droits de l’Homme(APDH) v Côte d’Ivoire.

In the view of the Inter-American Court the obligation to respect the rights and freedoms recognized in the Convention implies that “the exercise of public authority has certain limits which derive from the fact that human rights are inherent attributes of human dignity and are, therefore, superior to the power of the State” [Velásquez, para. 165]. The obligation to “ensure … the free and full exercise of those rights and freedoms” thus “implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation” [Velásquez, para. 166].

The Court added, however, that “the obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation — it also requires the Government to conduct itself so as to effectively ensure the free and full exercise of human rights” [Velásquez, para. 167].

As to the issue of prevention, the Court specified that “the State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation” [Velásquez, para. 174]. This legal duty to prevent human rights violations would moreover include “all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages” [Velásquez, para. 175]. As defined by the Inter-American Court of Human Rights, the legal duty of the States parties to the Convention to “respect” and to “ensure” is multi-faceted and goes to the very heart of the entire State structure, including the particular conduct of the Governments themselves.

 

INDIGENOUS PEOPLES’ RIGHTS

In the case African Commission on Human and Peoples’ Rights v Kenya, the African Court of Human and Peoples’ Rights cites several of the cases that the Inter-American Court of Human Rights has adjudicated on the matter of indigenous people’s rights.

The inter-American system of human rights has evolved from a vision of the affairs of indigenous peoples with a protectionist orientation, towards a perspective that seeks the effectiveness of the protection of the rights of indigenous peoples based on equality and non-discrimination.

The first approach of the Inter-American Commission on Human Rights was to consider indigenous peoples as a human group that had to be “protected.” In a second approach, the IACHR states that the notion of minorities developed within the scope of the United Nations was applicable to indigenous peoples and, therefore, the mechanisms established in international human rights law for these groups should be used. The third stage, in force until now, arises with the Commission’s Report on “The situation of Indigenous Peoples in the Americas”, and is based on the principle of equality and non-discrimination in the enjoyment and exercise of the rights that places indigenous peoples as holders of general rights based on their exclusion situation and the cultural peculiarities of which they are holders.

Based on this approach, the jurisprudence of the Inter-American Court of Human Rights in indigenous matters is based, in particular, on the sentences handed down in the Mayagna (Sumo) Awas Tigni Community case, and evolved further with the issuance of the judgment in the case of the Kaliña and Lokono Peoples.

To resolve contentious cases, the Inter-American Court of Human Rights has incorporated the standards developed in ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries to interpret the rights recognized in the American Convention on Human Rights. This was done in the case of Comunidad Mayagna (Sumo) Awas Tigni, in which the Inter-American Court of Human Rights recognized that understanding property rights in the traditional sense, did not consider the cultural peculiarities of exercising that right in the case of indigenous peoples. Therefore, through an evolutionary interpretation, considering the current state of the subject in domestic legislation and, according to the object and purpose of the treaties, the Inter-American Court of Human Rights understood this right in its collective dimension, enshrining the importance of the indigenous custom. In addition, in the case of Yakye Axa, the Court complemented this interpretation, using the content and scope of the right to property in ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries:

“In analyzing the content and scope of Article 21 of the Convention in the present case, the Court will take into account, in the light of the general rules of interpretation established in Article 29 thereof and as it has done previously, the significance special of communal ownership of ancestral lands for indigenous peoples, including to preserve their cultural identity and transmit it to future generations, as well as the steps taken by the State to fully realize this right (…)

In the present case, when analyzing the scope of the aforementioned Article 21 of the Convention, the Court considers it useful and appropriate to use other international treaties other than the American Convention, such as ILO Convention No. 169, to interpret its provisions of agreement. to the evolution of the inter-American system, considering the development experienced in this matter in International Human Rights Law. ” [para’s 124 and 127]

The Inter-American Court of Human Rights reiterated this doctrine in the Saramaka and Sawhoyamaxa Indigenous Community cases.

In the case of the Kichwa Indigenous People of Sarayaku, the Inter-American Court of Human Rights analyzed the right to cultural identity in light of ILO Convention 169, highlighting the importance of this right for the enjoyment and exercise of the rights of indigenous peoples.

Additionally, the Convention has also been used as a tool to complement the obligations of the State and fill gaps or gaps in the catalogs of rights. For example, when analyzing cases where rights with a high performance content are compromised, it ruled that the situation of special vulnerability in which indigenous peoples find themselves requires that special measures be taken by States. In this sense, the general obligations of the State are read in the light of the international corpus iure for the protection of the rights of indigenous peoples:

“In the present case, the Court must establish whether the State generated conditions that exacerbated the difficulties of accessing a dignified life of the members of the Yakye Axa Community and if, in that context, it adopted the appropriate positive measures to satisfy that obligation, that take into account the situation of special vulnerability to which they were taken, affecting their different way of life (systems of understanding of the world different from those of Western culture, which includes the close relationship they have with the land) and their project of life, in its individual and collective dimension, in the light of the existing international corpus juris on the special protection required by members of indigenous communities, in the light of what is stated in article 4 of the Convention, in relation to general duty of guarantee contained in article 1.1 and with the duty of progressive development contained in article 26 thereof, and of articles 10 (Right to Health); 11 (Right to a Healthy Environment); 12 (Right to Food); 13 (Right to Education) and 14 (Right to the Benefits of Culture) of the Additional Protocol to the American Convention on Economic, Social and Cultural Rights, and the relevant provisions of ILO Convention No. 169.” [Yakye Axa, para. 163]

Additionally, ILO Convention 169 has been used to incorporate additional obligations to those contained in the American Convention on Human Rights, such as in the case of the right to consultation and participation.

 

FUTURE OUTLOOK

Other instances where the African Court of Human and Peoples’ Rights has sought the guidance of the Inter-American Court of Human Rights deal with issues of freedom of expression, but many more can be explored.

 

The Court of Justice of the Economic Community of West African States (ECOWAS)

This contribution is by Dr. Apollin Koagne Zouapet. He is currently a Judicial Fellow at the International Court of Justice, and holds a Ph.D. from the University of Geneva, and is holder of the Diploma of The Hague Academy of International Law. 

The ECOWAS Court of Justice is one of the eight main institutions of the organization, listed in Article 6 of the ECOWAS Revised Treaty. But it is not the only jurisdictional institution. Article 16 of the Revised Treaty also creates an “Arbitration Tribunal of the Community” whose status, composition and rules of procedure remain to be determined by a Protocol which has not yet been adopted. The Court of Justice is, therefore, the main judicial body of the Community. In addition, the Court, and this is not the case for the Arbitration Tribunal, is listed in Article 6 in the same way as the Assembly of Heads of State and Government, the Council of Ministers or the Executive Council, as it is the only operational judicial body of the Community. Indeed, the establishment of the Court even preceded the adoption of the ECOWAS Revised Treaty. Protocol A/P.l/7/91 on the Community Court of Justice (1991 Protocol) was adopted on 6 July 1991, just over two years before the adoption of the revised Treaty. In addition, the Court officially began its activities in 1991, although its Protocol did not enter into force until 5 November 1996.

This accelerated establishment of the Court was justified by the faith of many African States, probably inspired by the European model, in the role of law in the integration process, as will be discussed in section I. Gradually, however, the ECOWAS Court of Justice is moving away from this “classical” function of Community jurisdiction to claim the “label” of human rights jurisdiction, as will be discussed in section II.

I. From the traditional Community jurisdiction to recognised human rights jurisdiction…

The primary function of the Court is indicated in the preamble to the 1991 Protocol: “the essential role of the Community Court of Justice is to ensure the observance of law and justice in the interpretation and application of the Treaty and the Protocols and Conventions annexed thereto, and to be seized with responsibility for settling such disputes as may be referred to it in accordance with the provisions of Article 56 of the Treaty and disputes between States and the Institutions of the Community”. From this point of view, the establishment of the ECOWAS Court of Justice reflects the same philosophy that has led to the establishment of courts in many integration processes on the continent (SADC, EAC, CEMAC, UEMOA, and so on). It is based on the idea, undoubtedly inspired by the dynamics of European integration , that real economic integration is only possible if it is built on and with the law; that is, if the rules adopted or enacted by the common institutions are interpreted and implemented in the same way by all, without variations linked to the national margin of appreciation. 

The approach thus promotes integration through rules and the restructuring of the legal area. Rules-based integration means that the process must be accompanied by the adoption of new legal rules based on a unit of law, in particular, productive activities and control of the financial space. Drawing the consequences from the failures of previous tests and undoubtedly strongly influenced by the success of the European model, African States perceived the establishment of a Community jurisdiction as an imperative tool to enable compliance with Community rules. It appears that, without being obvious, the relationship between integration and jurisdiction has become necessary: at the end of a phenomenon of reciprocal information between theory and practice, a re-reading of integration has resulted from the European experience and has introduced an ontological link between the reality of legal integration and the existence of a judicial mechanism. 

It is to this notion of rules-based integration that what can be described as the “classical competences” of the ECOWAS Court of Justice can be ascribed. These competences can be found in the statutes of almost all regional integration courts, and are found in Article 9 of the Protocol establishing the ECOWAS Court: 

1. The Court shall ensure the observance of law and of the principles of equity in the interpretation and application of the provisions of the Treaty. 2. The Court shall also be competent to deal with disputes referred to it, in accordance with the provisions of Article 56 of the Treaty, by Member States or the Authority, when such disputes arise between the Member States or between one or more Member States and the Institutions of the Community on the· interpretation or application of the provisions of the Treaty. 3. A Member State may, on behalf of its nationals, institute proceedings against another Member State or Institution of the Community, relating to the interpretation and application of the provisions of the Treaty, after attempts to settle the dispute amicably have failed. 4. The Court shall have any powers conferred upon it, specifically by the provisions of this Protocol”. 

The Court also has jurisdiction in contentious matters, and:

  •  examines cases of failure by Member States to honour their obligations under the Community law; 
  • has competence to adjudicate on any dispute relating to the interpretation and application of acts of the Community; 
  • adjudicates in disputes between Institutions of the Community and their officials;
  • has the power to handle cases dealing with liability for or against the Community; and
  • adjudges and makes declarations on the legality of Regulations, Directives, Decisions, and other subsidiary legal instruments adopted by ECOWAS.

In 2005, the ECOWAS Member States further strengthened their commitment to establishing a “Community of Law” by giving a mandate for the protection of human rights. This institution thus proves to be a concrete sign of the attachment of these States to the “recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights” and “promotion and consolidation of a democratic system of governance in each Member State as envisaged by the Declaration of Political Principles adopted in Abuja on 6 July, 1991” (see article 4 of the Revised Treaty related to the fundamental principles of the Community). This means that now “[t]he Court has jurisdiction to determine case of violation of human rights that occur in any Member State” (article 3 Supplementary Protocol A/SP.1/01/05 amending the preamble and articles 1, 2, 9 and 30 of Protocol A/P.1/7/91 relating to the Community Court of Justice and article 4 paragraph 1 of Protocol/A/P.1/7/91, the English version). 

On this basis, and with a barely veiled activist stance, the judges of the ECOWAS Court of Justice have gradually opted for a broad, even avant-garde interpretation of certain points of the rules, not only of ECOWAS, but also of the African Charter on Human and Peoples’ Rights, in order to protect the rights of community citizens.

II. …To the court actively seeking the “label” human rights court

It was on the occasion of the adoption of a Protocol on democracy and good governance in 2001 that the amendment of the 1991 Protocol will be considered for the purpose of “extending the Court’s jurisdiction, inter alia to violations of human rights after the exhaustion, without success, of domestic remedies” (see article 39 of the Protocol 2001). It is on this basis that the Member States have proceeded, four years later in Accra, Ghana, at the adoption of the Protocol A/SP.I/01/05 amending the Protocol of 1991. Interpreting not only the African Charter but also the other international human rights treaties to which ECOWAS Member States are parties, the Court of Justice has been particularly bold and even activist in the construction of a “Community of Law” in West Africa.

The Court thus affirmed the primacy of the African Charter on Human and Peoples’ Rights in the Community legal order, in particular on the grounds that all ECOWAS Member States are parties (Sikiru Alade v. Nigeria, para. 24; Moussa Leo Keïta v. Mali, para. 34). Similarly, taking advantage of the absence of a specific human rights protection instrument within the ECOWAS framework, the Court of Justice has used this gap to opportunely define and broadly delimit the scope and modalities of its jurisdiction in the field of human rights, and have a broad interpretation of the procedural rules. It has thus found itself justified in applying a wide range of international human rights instruments as well as certain national laws. 

The Court of Justice did not hesitate to question the rule of prior exhaustion of domestic remedies, considering that “there is (…) no reason to consider the absence of prior exhaustion of domestic remedies as a gap that the practice of the Court of Justice of the Community must fill; because it cannot, without violating the rights of individuals, impose conditions and formalities on them which are more burdensome than those laid down in Community legislation” (Hadijatou Mani Koraou v. Niger, para. 45).  The Court does not seem to think that this is a customary principle of contentious law that it must apply even in the absence of a textual prescription. In the case of CDP and others v. State of Burkina Faso, it opted for a particularly broad application of the status of “potential victim” to identify personal harm and admit a claim. Previously and in the same case, the Court argued that the situation for which it is seized is urgent, in order to dispense with the obligation to examine its jurisdiction (para. 16).

On the substantive issues, it has sometimes been questioned whether the ECOWAS Court of Justice does not, in fact, impose on itself a third level of jurisdiction: A kind of supra-constitutional court that gives itself the power to control the rules of the political and electoral game, including the decisions of the Member States’ constitutional courts. No doubt seeing resistance being organized on the part of some national courts, in particular the Burkinabe courts in the course of the CDP and other judgments, the Court kept itself to clarifying the limits of its mandate. It thus recalls that it is “out of the question that it should  insure the police for the elections that Member States organise” even if it admits that it can be “validly seized when it appears that the electoral process is marred by human rights violations, violations for which the sanction falls within its competence.” It also reiterates its “refusal to establish itself as a judge of the internal legality of States;[it is not] a body responsible for deciding cases involving the interpretation of the law or the Constitution of ECOWAS States” (See CDP and Others v. Burkina Faso, para.’s 19, 24; and Isabelle Ameganvi and Others v. Togo, para….). 

Conclusion

Finally, if the Court of Justice has been able to seize the opportunities offered by the extension of its jurisdiction to human rights issues to establish itself increasingly as one of the most active in this field, it is because it knows that it can count on the tacit support, or at least the indulgent tolerance, of ECOWAS Member States to avoid the fate suffered by the SADC Tribunal. This support from States is called for by the very active involvement and lobbying of civil society organisations in the region. This mobilization and support were evident in an attempt by the Gambia to reduce the Court’s jurisdiction. After its conviction for torture and other human rights violations in Manneh v. The Gambia in 2008, the Gambia country tried to limit the human rights mandate of the ECOWAS Court of Justice by expressly requesting an amendment to the 2005 Protocol. There was a widespread mobilization of civil society, which undoubtedly contributed to the rejection of the Gambian proposal by the ECOWAS Council of Ministers of Justice. This crisis was also a summary of the strengths, weaknesses, and dangers facing the ECOWAS Court of Justice.

In a more general and systemic approach to the protection of human rights in Africa, there is concern about the lack of regular references to the African Court and Commission on Human and Peoples’ Rights in the case-law of the ECOWAS Court of Justice. There is a risk of contradiction, even divergent interpretations of the same instrument as the African Charter on Human and Peoples’ Rights. Formal and informal bridges between these different jurisdictions should be established quickly, enabling them to enrich each other for the consolidation of the rule of law and the protection of the human person in Africa. 

The East African Court of Justice: Jurisdiction, Case Law and Recent Developments

Mihreteab Tsighe holds Ph.D. from the Centre of Excellence for international Courts (iCourts), University of Copenhagen and teaches international law at the School of Law and Federalism, ECSU, Ethiopia. He regularly writes on the work of African regional courts. He focuses mainly on evolution of international courts, the interaction between law and regional integration, the role and power of lawyers in regional integration, the increasing importance of supranational legal institutions and regional integration.

The EACJ has a special mandate in the institutional set up of the East African Community (EAC). This blog post deals with the jurisdiction, case law and recent developments in the East African Community Court of justice. The court has been criticised for not having more economic law cases in its docket. The overwhelming majority of cases relate to matters that relate to human rights, an area that the Court has no official mandate yet to adjudicate. Following the rule of law violation cases are cases relating to institutional matters. Although the docket of the courts is full of these two categories of cases, this blog post reveals that the court has started to rule on economic law matters bringing back in its original economic law jurisdiction.

Jurisdiction 

The EACJ is the judicial organ of the EAC. [Article 23of the East African Community Treaty (EAC Treaty)] The Court has a First Instance Division, and an Appellate Division and its role are to ensure the adherence to law in the interpretation of and application of the treaty. [Articles 23 and 27] The Court is composed of a maximum of 15 judges appointed by the Summit. [Article 24] The Court has jurisdiction in cases brought by the Partner States, the Secretary-General, and legal and natural persons. Also, the Court holds jurisdiction in disputes between the Community and its employees; it is empowered to give advisory opinions, and it may, upon request, serve as an arbiter; it may, upon request from national courts, give a preliminary ruling on matters of the treaty. [Articles 28, 29, 31, 32, 34 and 36] The treaty provides that the Court shall have such other original, appellate, human rights and other jurisdiction as should be determined by the Council at a suitable date. [Article 27(2)] Following this, in 2015 the Court’s jurisdiction was extended to cover trade and commercial disputes and disputes arising out of the implementation of the Protocol on the Establishment of the East African Monetary Union leaving out human rights matters. 

Case Law of the EACJ

Function-wise, today the work of the EACJ may be roughly divided into three main groups: 

  1. Rule of law violations: The Court has repeatedly decided human rights-related matters in the framework of the rule of law and governance principles enshrined in the EAC Treaty. It is incontestable that the Court does not have an official human right jurisdiction. Nevertheless, its power to interpret the treaty is intact, and this includes interpretation of article 6(d)[ good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights] either alone or in conjunction with Article 7(2).[ The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.] The relevant case-law of the EACJ has a solid legal basis in Article 6(d) and 7(2) of the EAC Treaty.
  2. Community matters: These are types of actions that challenge community organs. It is this type of case that put the EACJ into motion when it decided its first case, the Mwatela case, addressing procedural matters arising from the tasks of the organs of the community, mainly the Council and the Assembly. 
  3. Economic matters: There is generally an absence of economic cases before the EACJ. However, recent developments show that the court has started to decide economic cases. The tow cases related to Economic matters are the Grands Lacs Supplier S.A.R.L and Others vs. The Attorney General of the Republic of Burundi, and British American Tobacco (BAT) Ltd Uganda V Uganda.

This division exemplifies the EACJ’s different types of work, but it is not the only type of work the Court does, nor is it necessarily a classification of its body of jurisprudence. Apart from the three main groups related to subject matter jurisdiction, there is also the ‘left-over’ jurisdictional task of the EACJ. The most notable amongst these other tasks of the EACJ are Advisory opinion, preliminary reference and arbitration jurisdiction. While the EACJ rendered two advisory opinions, it has received only one preliminary reference to date. The EACJ has not used its arbitral jurisdiction yet.  

On the whole, the order in which the three main types of EACJ activity have been set out reflects how strongly each category is represented within the overall docket of the EACJ today. In the last two decade, one may notice a distinct rise in the number of the rule of law violation cases. Almost all cases decided by the EACJ are about the violation of the rule of law principles enshrined in the EAC Treaty. Thus, in a way, a transformation of the EACJ into a human right jurisdiction mostly shied away from Economic Law matters, and instead concerned itself primarily with the interpretation of the Article 6 and 7 of the treaty on the rule of law and good governance. 

The EACJ and the African Charter 

Subject-wise, the EACJ has drifted away from principally being an economic court. Most of the EACJ’s consideration was devoted to the same ‘unusual suspects’, namely rule of law violations, detention, and freedom of the press. 

As the EACJ remains, predominantly, a defacto human rights court after the Katabazi Case and as far as the overall subject matter of its docket is concerned; there has been a considerable change as to how human rights issues are discussed in the recent case law of the Court.  In the case of the Democratic Party, the EACJ explicitly held that it has jurisdiction to interpret the African Charter on Human and Peoples Rights (ACHPR) in the context of the EAC Treaty. The essence of the case was that the applicants claimed that Burundi, Kenya, and Uganda violated the EAC Treaty because of the lengthy course of depositing instruments of declarations regarding the Protocol that established the African Court (the Protocol) Precisely, the petitioners claimed that such delays amounted to violations of the EAC Treaty and the ACHPR. The EACJ First Instance Division rejected the case reasoning that its sole jurisdiction is to ensure the adherence to the law in the interpretation and application of and compliance with the EAC Treaty. It explicitly held that it does not have jurisdiction to ensure compliance with the ACHPR and the Protocol. On appeal, the matter for the Appellate Division was to determine whether there was an error of law in the judgment of the First Instance Division. According to the EACJ Appellate Division, Articles 6 (d) and 7(2) of the Treaty endow the Court to apply the provisions of the ACHPR, the Vienna Convention, or any other applicable international instrument, to guarantee the Partner States’ adherence to the provisions of the Treaty, and provisions of other international instruments to which the Treaty refers. The role of the Court is to determine the Partner States’ adherence to, observance of, and/or compliance with the Treaty provisions as well as the provisions of any other international instruments incorporated in the Treaty, whether directly as in Article 6(d), or indirectly as in Article 7 (2). Although it has not yet claimed to have human right jurisdiction, its reasoning reveals it is close to that.

Nevertheless, one can safely argue that the Appellate Division decision in the Democratic Party case has influenced the First Instance Division in the Mseto case. The First Instance Division determined the case of freedom of the press and freedom of expression through the interpretation of the African Charter and International Covenant on Cultural and Political Rights (ICCPR). The Court found Tanzania failed to establish how the publication in the Mseto newspaper violated the interest of the public, or the interest of peace and good order of the people. This lead to the conclusion that the order to ban the newspaper violated the right of freedom of expression enshrined in Article 18(1) of the Tanzanian Constitution, or as stipulated in Articles 19(3) of the ICCPR and 27(2) of the African Charter. Moreover, for the Court, the order to ban the newspaper violates the principles of democracy, good governance, and the rule of law. Tanzania acted unlawfully, by issuing orders based on mere “opinions” and by failing to recognise the freedom of expression and the press as a basic human right under the provisions of the African Charter. The Court stressed the binding nature of Article 6(2), 7(d) and 8(1) of the Treaty by declaring these provisions as not merely aspirational. The provisions are justiciable and generate obligations to the Partner State to respect the principles of good governance and the rule of law, which include accountability, transparency and the promotion, and protection of democracy. The Court found a violation of these principles. The court recognised that the rights to press freedom, to receive and impart information are not absolute.

Nevertheless, the restrictions against the newspaper were unlawful, disproportionate and did not serve any legitimate or lawful purpose. The Court has held that Tanzania acted in breach of the Treaty, it decided that an unlawful act must be followed by an act taking the parties to the state of affair that existed before the banning of the newspaper. As a result, the Court ruled for the resumption of the publication of Mseto.  

Although this development might have widened the already existing narrow door for human rights cases via a rule of law violations, it would be interesting to see the Partner States’ reaction as they have delayed the extension of human right jurisdiction of the Court. Indeed, it seems that the time for substantive human right cases appearing in the Court is ripe and the court has taken cases that fall under articles 6(d) and 7 (2) to another level by determining the Mseto case.

Recent Developments: Bringing Back the EACJ’s Economic Law Jurisdiction? 

Much of the debate as to whether the EACJ is an economic court might have thus been perhaps caused by the general absence of economic cases and by the sheer presence of a violation of the rule of law cases. The overall debate concerning the jurisdiction of the EACJ today might be affected with two recent economic decisions of the Court, the Grands Lacs Supplier case and the British American Tobacco (BAT) Ltd UgandaIn both cases, the ECAJ handed down rulings which may prove for the Courts as returning to its roots. In these, cases, the court came out of its shell and exposed its nature of an economic court.  In the Grands Lacs Supplier case, the applicant challenged Burundi for allegedly (unlawfully) seizing the applicant’s goods in violation of the fundamental principles and objectives of the EAC Treaty and the Protocols on Customs Union and Common Market. The applicants argued that the seizure hinders the free movement of goods by Partner States’ nationals across their borders.  The Court ruled that the decision to seize the Applicants’ goods without due process violated the rule of law stipulated in Articles 6(d) and 7(2) of the Treaty.  In exercising its judicial discretion in light of the facts and the circumstances of the case, the Court awarded general damages to the applicants. 

 In the British American Tobacco (BAT) Ltd Uganda case, the EACJ ruled the imposition of new excise duty law over imported cigarettes within East Africa violated the East African Community Treaty (EAC Treaty), the Customs Union (CU) and the Common Market(CM) Protocols. The British American Tobacco (BAT) Ltd Uganda, challenged the Government of Uganda over the Excise Duty (Amendment) Act of 2017. Uganda issued tax assessment notices based on the Excise Duty (Amendment) Act of 2017, imposing the payment of excise duty for its Kenyan made and cigarettes and imported to Uganda. 

According to the Court, designating the cigarettes as ‘imported goods’ is a misconstruction and a wrongful re-classification, and it violates the EAC Treaty, the CU Protocol, and the CM  Protocol. Besides, the court ordered the government to ensure the interpretation and application of Excise Duty Act with due regard and in compliance with applicable Community Law and to align the Ugandan tax laws with Community Law applicable to goods from the EAC Partner States. 

The case-law of the EACJ reflects the interest of parties to cases. When more parties bring cases of human rights matters, the court resembles a human rights court. When more parties bring economic law cases, the Court resembles an economic court. Human rights-related cases in the framework of the rule of law moved the EACJ forward and allowed it to make its distinct imprint the protection of human rights and the rule of law. It seems the time has now come for further evolution of the Court with the decisions on economic law cases. Today, the EACJ arguably has the ambition to become more than a ‘one-sided-defacto human right-court’. Taking into account the already discussed rise of the human rights cases and the recent economic law decisions, the EACJ is on the verge of becoming a genuine international Court significant for human rights and economic integration. 

Regional courts and their sources: The practice of the African Court and the ‘others’

My second post for the Monitor is also the kick-off of a special series we have put together for the new year on the use of other sources of law among five prominent regional courts: African Court, ECtHRIACtHREAC Court of Justice, and ECOWAS Court. This first post in the series starts with the focus of the Monitor: the work of the African Court. In the coming months, posts will follow on the other courts outlining their jurisdiction, highlighting their important cases, as well as any cross-references between their work and the jurisprudence of the African Court. We hope you enjoy! Misha


Articles 3(1) and 7 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Protocol) allow the African Court to do two important things: 

  • Article 3(1) ensures that the African Court has jurisdiction over “the Charter, [the] Protocol and any other relevant Human Rights instrument ratified by the States concerned.” [emphasis added]
  • Article 7 allows the African Court to use “the Charter and any other relevant human rights instruments ratified by the States concerned” as sources of law. [emphasis added] 

These two articles have had a significant impact on the jurisprudence of the African Court. When one looks at the jurisprudence of the African Court it becomes clear that the it has made good use of these provisions. There are an abundance of cases in which the African Court draws on other relevant human rights instruments as sources of law, and even a few cases in which it has found a violation of another human rights instrument to which the Respondent State is a party (see for example Norbert Zongo et albelow). 

The African Court uses both sources from within the continent—the treaties and practice of regional economic community (REC) Courts—and further a field, like the IACtHR and the ECtHR. The overlap between the African Court and the REC Courts is interesting because the latter were establishmed to deal with different types of cases, namely economic matters rather than function as human rights courts as such, although the mandate of the ECOWAS Court has changed over time as will be demonstrated in the months to come.

The work of these ‘other’ courts will be dealt with in the subsequent posts of this special blog series, while this particular blog post will focus on how the African Court makes use of articles 3(1) and 7 of the Protocol. In the following section the general trend will be discussed through the examination of three leading cases: Norbert Zongo et al.Alex Thomas, and Peter Joseph Chacha.

The Practice of the Court

When one studies the jurisprudence of the African Court it becomes clear that in recent years it has become increasingly self-referential as it builds its own body of jurisprudence. However, many of the pivotal cases that the African Court now references drew strongly on other sources of law such as the ICCPR, the ECHR, and/or the IACHR. Three of the leading cases of the African Court, and how they used ‘other human rights instruments’ and the work of other human rights institutions, will be discussed here. These three cases were chosen because they have come to be some of the most influential in the African Court’s subsequent jurisprudence, and in each the African Court relied on other sources of law in its decision-making process. Therefore, it is important to understand how these other sources were used in order to better understand the precedent that was set in each case.

Norbert Zongo et al. 

The first is the case of the Beneficiaries of the Late Norbert Zongo, Aboulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabè Movement on Human and Peoples’ Rights v Burkina Faso (Norbert Zongo et al.). Up until late 2018, the case of Norbert Zongo et al. was by far the most cited case in the African Court’s jurisprudence, with Peter Joseph Chacha and Alex Thomas trailing behind with only slightly fewer references to them.

In the case of Nobert Zongo et al., the Applicants alleged violations of not only the Charter, but also the Revised ECOWAS Treaty, ICCPR, and the UDHR [para. 9-11]. Ultimately, the African Court found that Burkina Faso violated article 7 (right to a fair trial), article 1 (obligation to adopt measures, other than legislative measures), as well as a violation of article 9(2) of the Charter and article 66(2) of the Revised ECOWAS Treaty [para. 203]. In deciding the case, the African Court made a number of important decisions.

First, the African Court reaffirmed that it had material jurisdiction over other human rights instruments, in accordance with article 3(1) of the Protocol, with regard to the alleged violations of the ICCPR and Revised ECOWAS Treaty [para. 48-49].

Second, the African Court used the work of the ECtHR as a link between various legal families. Specifically, the African Court referenced the work of the ECtHR “in a matter concerning France which belongs to the same legal family as Burkina Faso” [para. 70] in order to determine whether domestic remedies had been exhausted. No reference was made to the IACtHR in the case.

Third, the African Court drew connections between various legal instruments. For example, connections were drawn between article 7(1) of the Charter and articles 2(3) and 14 ICCPR, as well as article 8 UDHR [para. 114]. In addition, the African Court created a hierarchy by  stating that it would consider an alleged violation of article 7 of the Charter first, “and then, if need be, in regard to the provisions of other international instruments invoked by the parties.” [para. 118]. Therefore, despite drawing on these other human rights instruments, the African Court prioritised the Charter as the main source of law. As a result, since the African Court found a violation of article 7, it did not go into whether there was also a violation of articles 2(3) and 14 ICCPR or article 8 UDHR in this particular case [para. 157]. The same was true for the alleged violation of the right to equality in article 3 of the Charter and article 14(1) ICCPR [para. 170], and the alleged violation of the right to receive and disseminate information and freedom of expression in articles 9(1) and (2) of the Charter, article 19(2) ICCPR, and article 66(2)(c) of the Revised ECOWAS Treaty [para. 178]. The African Court did, however, find that article 9 of the Charter and article 66(2)(c) of the Revised ECOWAS Treaty “should be read jointly.” [para. 180, also see 187].

But it wasn’t just the African Court that made reference to these other sources, the Respondent, Burkina Faso, in this case also used the ECtHR’s jurisprudence to justify why the case had taken longer to go through the domestic legal system and why that did not constitute an undue prolongation of the remedies [para. 75-76 and 80]. The only party to invoke the work of an African institution were the Applicants, who invoked the work of the African Commission on article 7 [para. 141]. 

In the end, the African Court unanimously found that Burkina Faso had violated articles 1 and 7 of the Charter. With a majority of five to four, it also found that Burkina Faso violated article 9(2) of the Charter, “read together with article 66(2)(c) of the Revised ECOWAS Treaty.” [para. 203(1)] (The dissenting opinion was on the standard of evidence required, not on the sources of law).  

Alex Thomas

The case of Alex Thomas v Tanzania is not only important from the perspective of the development of the right to fair trial in the African human rights system, but it is also important in the context of the African Court using other sources of law. Perhaps more so than almost any other case, the judges in Alex Thomas relied heavily on other human rights instruments, and the interpretation thereof by other human rights institutions, in order to further expound on what article 7 and the right to a fair trial entails.

In this case, the Applicant, Mr Thomas, alleged a violation of articles 1, 3, 5, 6, 7(1) and 9(1) of the Charter [para. 19]. The African Court discussed various aspects of article 7: the right to be heard and to defend oneself [para. 81-99]; the right to be tried within a reasonable time [para. 100-110]; the right to legal aid [para. 111-124]; the allegation of manifest errors during trial [para. 125-131]; among others. In deciding the case, the African Court relied on the work of the CCPR, ECtHR, IACtHR, and African Commission, as well as its own jurisprudence.

First, on procedural matters, the African Court referenced its power to draw on external sources [para. 88], and then went on to use them to interpret its jurisdiction. On the issue of not being an appellate court, yet still having jurisdiction over “manifest errors at trial”, the African Court drew on its own case law in Ernest Francis Mtingwi v Malawi, the work of the ECtHR in Baumann v AustriaGracía Ruiz v SpainPerez v France, and Dulaurans v France, the African Commission decision Priscilla Njeri Echaria v. Kenya, as well as the IACommHR case Santiago Marzioni v Argentina[para. 130, footnote 28].

Second, in interpreting the content of the various rights invoked, the African Court reiterated its procedural powers and proceeded to draw heavily on external sources:  

  • Article 7(1)(c): In the merits section, the African Court reiterated its power to interpret article 7(1)(c) of the Charter “in light of the provisions” of article 14 the ICCPR, as Tanzania was a party to that treaty [para. 88]. The African Court then went on to discuss the protections provided in article 14 ICCPR [para. 90] and applied it to the case [para. 91-94, also see para. 114]. The African Court added that it was “fortified in its reasoning by the decisions of the African Commission[, the] European Court of Human Rights and the Inter-American Court of Human Rights, which are courts of similar jurisdiction.” [para. 95 and 116]. In its interpretation, African Court used the African Commission decision Advocats Sans Frontières v Burundi [para. 96 and 117], as well as the various declarations, principles, and guidelines of the African Commission [para. 121, also see 144]. The African Court also made reference to the ECtHR cases Colozza v. Italy [para. 97], Benham v UKQuaranta v SwitzerlandZdravka Stanev v BulgariaTalat Tunç v TurkeyPrežec v CroatiaBiba v Greece [para. 118, footnote 20], and Salduz v Turkey [para. 119], as well as the IACtHR case Suárez Rosero v. Ecuador [para. 98], and the CCPR communication Anthony Currie v Jamaica [para. 120]. 
  • Article 7(1)(d): The African Court did much the same with the interpretation of article 7(1)(d) of the Charter [para. 102], which was interpreted in light of the work of the African Commission in Haregewoin Gebre-Sellaise & IHRAD v. Ethiopia and Odjouoriby Cossi Paul v. Benin [para. 103]. The African Court also drew on article 8(1) of the Charter and the cases of Suárez Rosero v. EcuadorXimenes-Lopes v. BrazilItuango Massacres v. Colombia, and Baldeón-García v. Peru before the IACtHR [para. 104, footnote 17], as well as the work of the ECtHR in Ruiz-Mateos v. Spain [para. 104, footnote 18]. 
  • Article 1: As to the “overarching applicability of Article 1 of the Charter” the Court invoked its own jurisprudence from Nobert Zongo et al., and the work of the African Commission in Sir Dawda K. Jawara v. the Gambia [para. 136]. When it came to the decision that the delay in proceedings did not constitute cruel, inhuman and degrading punishment and treatment, the African Court did so taking into consideration the work of the CCPR on the matter [para. 146]. It also made reference to the ECtHR cases Price v UKValašinas v Lithuania, and Pretty v UK [para. 146, footnote 31], as well as the CCPR communication of Earl Pratt and Ivan Morgan v. Jamaica (1986) and (1987) [footnote 32]. 
  • Remedies: The last element of the case related to Mr Thomas’ request to be released from prison [para. 155-159]. The African Court rejected this plea [para. 157], and based its decision primarily on the IACtHR case Loayza-Tamayo v Peru, and the requirements of “very specific and/or compelling circumstances” [para. 157, footnote 33]. Instead, the African Court offered re-opening the case as an alternative remedy [para. 158], drawing on the work of the ECtHR in Stoyanov v. Bulgaria [para. 158, footnote 34]. 

The Applicant, Mr Thomas, in contrast, drew on the previous work on the African Court and invoked the jurisprudence developed in Frank David Omary and Others v. Tanzania and Peter Joseph Chacha [para. 44]. It was in these two cases that the African Court decided it had jurisdiction ratione materiae [para. 45]: The Applicant need only specify a human rights violation, as contained in the Charter or other human rights instrument, and not necessarily identify which specific rights these alleged violations correlate to in the instrument itself [also see para. 51-52]. In addition to the African Court’s own case law, it was also “persuaded by the reasoning of the African Commission in Southern African Human Rights NGO Network v. Tanzania” on the need to only exhaust ordinary domestic remedies [para.64].

The Respondent, Tanzania, also invoked other sources, and reached beyond the continent in support of its position. Tanzania invoked “international human rights standards” to support their arguement that Mr Thomas had not filed his application within a reasonable time [para. 66]. In their rebuttal, the Applicant relied on the work of the African Commission to refute this point [para. 72]. The African Court in turn relied on its own jurisprudence in Nobert Zongo et al. and its precedent on reasonable time [para. 73]. 

In the end, the African Court exercised the full extent of its powers under articles 3(1) and 7 of the Protocol and found that Tanzania had violated articles 1, 7(1)(a), (c) and (d) of the Charter, and article 14(3)(d) of the ICCPR [para. 161]. Therefore, Tanzania had “failed to comply with its obligations under the Charter and the ICCPR” [para. 124]. Therefore showing that the African Court would not limit itself to only using other human rights instruments as a tool for interpretation, but could also find violations of such other instruments.

Peter Joseph Chacha

The case of Peter Joseph Chacha v. Tanzania is perhaps the odd one out of three cases discussed here. The African Court issued a ruling on admissibility, finding the application inadmissible, unlike the other two cases discussed above, which were decided on the merits. Nevertheless, the case of Mr Chacha set an important precedent when it comes to Applicants not having to reference specific provisions of the Charter in order to claim a violation thereof, as well as on the exhaustion of domestic remedies. While the African Court did not see the initial lack of clarity on which Charter rights the Applicant was invoking as a ground to dismiss the claim, his lack of exhaustion of domestic remedies was [para. 155].

On the issue of invoking Charter rigths, Mr Chacha made reference to a violation of Tanzanian law, and not the Charter as such in his initial application. In subsequent submissions, Mr Chacha alleged that his rights contained in articles 3, 5, 6, 7(1), 14, and 26 of the African Charter were violated [para. 67].  In deciding the case, the African Court relied on a number of external sources. But it was not only the African Court that did so. For example, both Tanzania and Mr Chacha discussed the Rules of Procedure and Statute of the IACtHR [para. 79], and Tanzania also made reference to a case decided by the Indian Supreme Court to support its position on the use of expert witnesses [para. 73-4]. In establishing the important precedent on whether or not Mr Chacha had to reference a specific article in the Charter, the African Court discussed the preliminary objection to its jurisdiction to hear the case drawing on African and other sources.

First, the African Court references its own case law in the consolidated cases of Tanganyika Law Society et al. and Reverend Mtikila v Tanzania. Here the African Court reiterated its rejection of the idea that it does not have jurisdiction ratione materiaebecause the claim is based only on domestic law. The African Court instead argued that it would find equivalent articles in the Charter, as it had done in the previous case [para. 113]. In making this argument the African Court also drew on the work of the African Commission in Southern African Human Rights NGO Network and Others v Tanzania. The African Court used this communication to support the argument that the Applicant need only show that there is a prima facie violation, and that “it is not mandatory for the Complainant to mention specific provisions of the African Charter that have been violated” [para. 51].

Second, the African Court not only looked to its own work and that of its compatriot, the African Commission, it also looked further afield and drew on a number of cases before the ECtHR like Guerra and Others v ItalyScoppola v Italy (No. 2), and Previti v Italy [para. 120, footnote 3], as well as the jurisprudence of the  IACtHR in Hilaire v Trinidad and Tobago [para. 121]. The case law of the ECtHR and the IACtHR supported the idea that there was no need for specific reference to be made to articles in the relevant human rights instrument in order to bring a case before these human rights courts.

When it came to the exhaustion of domestic remedies, much the same was true. Here again the African Court drew on its own jurisprudence in the case of Urban Mkandawire v Malawi [para. 142], and that of the African Commission inKenyan Section of the ICJ, Law Society of Kenya and Kituo Cha Sheria v Kenya and Anuak Justice Council v Ethiopia [para. 143 and 144]. Although, here it did not draw on cases beyond the continent. 

In the end, in a six to four split (the Tanzanian judge recused himself), the African Court found that the application was inadmissible because the Applicant, Mr Chacha, had not exhausted domestic remedies [para. 159].

Conclusions 

These three cases have become pivotal in the case law of the African Court. Each of them in turn built on important case law from other regional and international human rights institutions and instruments, and used these sources to further develop the meaning and interpretation of the African Charter. While the use of articles 3(1) and 7 of the Protocol, which allows the African Court to draw on these external sources, has declined in recent years, the traces of the effect of other human rights instruments on the earlier jurisprudence of the African Court are clear. Therefore, while many of the newer cases of the African Court draw heavily on the cases of Norbert Zongo et al.Alex Thomas, and Peter Joseph Chahca, these seemingly internal references are tied to a wider body of human rights jurisprudence being developed in other institutions on the continent and around the world.

The rest of this special series is dedicated to a number of these other human rights institutions. The focus will be on how these other courts interpret their legal instruments, how they interact with the African Charter as an instrument (if at all), as well as whether they make reference to the work of the African Court as an institution. So keep an eye out for the contributions on the EAC Court, the ECOWAS Court, the IACtHR, and the ECtHR! 

Another One Bites The Dust: Tanzania Withdraws Its Additional Declaration

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.

A welcome development: Amnesty’s new annual report on the African Union’s human rights entities.

Just a short post to highlight a really interesting new Amnesty report. The publication, entitled “The State of African Regional Human Rights Bodies and Mechanisms 2018-2019” is an important review of the main African Union-related human rights entities; the African Court on Human and Peoples’ Rights (ACtHPR), the African Commission on Human and Peoples’ Rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC). The report gives a fascinating overview of all three human rights organs, and whilst it does not go into great analysis of individuals decisions (you can get that here at The Monitor!) it does provide invaluable assessment of their operations and picks out some interesting trends, both positive and negative.

Image courtesy of Amnesty International

Equally welcome is Amensty’s declaration that the release of this kind of report will be an annual event, with publication anticipated every October. An annual report of this kind, when done well as appears to be the case here, can only be a good thing; providing much needed analysis and assessment of both the African Court and its human rights cousins, the ACHPR and ACERWC. You can download the report here.

I encourage all our readers to have a look!

Questions of Admissibility following Non-Binding Decisions of International Bodies: Dexter Eddie Johnson v. Republic of Ghana

Kira has been supporting Oliver this summer, and as part of her internship contributed this great post for the Monitor! Kira Benton is a candidate for the degree of Doctor of Jurisprudence (J.D.) at Vanderbilt University Law School and holds undergraduate degrees in Anthropology and Economics from the University of South Florida.  She received the Ones W. Polk II International Studies Stipend to help support her internship at the Monitor this summer. 

Introduction

On 28 March 2019, the Court released its judgement in the case of Dexter Eddie Johnson v. Republic of Ghana, including a key finding on admissibility.The case is notable for several reasons. This was the first case against Ghana decided before the African Court of Human and Peoples’ Rights (“African Court”) and was the first time that an application had asked the African Court to consider a challenge to the mandatory application of the death penalty. Unfortunately, the African Court’s jurisprudence on the mandatory death penalty remains unestablished, as the African Court did not reach a decision on the merits of the case. With two judges dissenting, the African Court held that the case was inadmissible as Mr. Johnson had already brought his case to the United Nations Human Rights Committee (UNHRC) and despite Ghana’s failure to comply with the UNHRC’s decision, which found that the mandatory application of the death penalty constituted an arbitrary deprivation of life in violation of Article 6(1) of the ICCPR.

The Facts

The Applicant in this case was Dexter Eddie Johnson, a dual citizen of Ghana and the United Kingdom who is currently on death row in Ghana. Mr. Johnson was sentenced to death following his conviction for the murder of an American citizen in the Greater Accra region of Ghana in May 2004. Represented by counsel from The Death Penalty Project, Mr. Johnson filed his application to the African Court on 26 May 2017.

In his application, Mr. Johnson argued that the mandatory imposition of the death sentence for murder, without any consideration of the nature of the offence or the perpetrator, violated his right to life under Article 4 of the African Charter on Human and Peoples’ Rights (“African Charter”). He further argued that the imposition of the death penalty without any allowance for judicial discretion at the trial or appellate level violated the prohibition of cruel, inhuman or degrading treatment or punishment under Article 5 of the African Charter and the right to a fair trial under Article 7 of the African Charter, and thus also violated Article 1 of the African Charter. He also submitted that Ghana had violated his rights under the ICCPR, namely the right to life under Article 6(1) of the ICCPR, the prohibition on inhuman punishment under Article 7 of the ICCPR, the right to a fair trial under Article 14(1) and the right to a review of a sentence under Article 14(5) of the ICCPR, and the Universal Declaration of Human Rights (UDHR), namely the right to life under Article 3 of the UDHR and the prohibition of cruel, inhuman or degrading treatment or punishment under Article 5 of the UDHR. While Ghana has implemented a de facto moratorium on the death penalty since 1993, Mr. Johnson submitted this did not have a bearing on his application.

Provisional Measures

Mr. Johnson’s application requested that provisional measures be issued ordering that (i) Ghana not execute Mr. Johnson while his application remained pending and (ii) Ghana should report to the Court within 30 days of the order on its implementation. The African Court issued such measures on 28 September 2017, extending Ghana’s response time to 60 days. The African Court followed its previous case law on provisional measures but noting that to order provisional measures, it needed to satisfy itself prima faciethat it had jurisdiction, which it did by noting that the case concerned both articles of the African Charter and of other relevant human rights instruments, namely the ICCPR and UDHR, and that Ghana is a party to the African Charter, the Protocol to the African Charter on Human and Peoples’ Rights (“the Protocol”) and the ICCPR and had deposited an instrument in 2011 allowing the Court to receive cases from individuals and NGOs. 

The African Court also discussed the standard set forth in Article 27(2) of the Protocol and Rule 51(1) of the Rules of Court (“the Rules”) for the issue of provisional measures, noting that it has the power to order provisional measures “in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons. . .” and “. . .which it deems necessary to adopt in the interest of the parties or of justice.” (See Provisional Measures Decision, para.14). The African Court stated that, despite Ghana’s de facto moratorium on the death penalty, the position of Mr. Johnson on death row created a situation of extreme gravity and urgency presenting a risk of irreparable harm to Mr. Johnson, and thus found that the situation required provisional measures pending a decision on the application. Four judges dissented in part from the order in two separate opinions, both submitting that the 60-day response period which Ghana had been allowed was too long and showed inconsistency with other orders for provisional measures granted by the African Court.

The Judgement 

1. Jurisdiction

In its 28 March 2019 judgement, the African Court first considered the issue of jurisdiction. The African Court based its material jurisdiction on the application’s invocation of the African Charter, ICCPR and UDHR. It found that it had personal jurisdiction based on Ghana’s status as a State Party to the Protocol and Article 34(6) declaration allowing individuals to bring cases to the Court and referenced Norbert Zongo v. Burkina Faso (discussed here) to hold that it had temporal jurisdiction on the basis that the alleged violations are continuous. In other words, although Mr. Johnson was convicted and sentenced prior to Ghana’s deposition of the Article 34(6) Additional Declaration, the ongoing nature of the harm allowed the African Court to hear the case. The African Court found that it had territorial jurisdiction because the alleged violations took place in Ghana, a State Party to the Protocol. Finding that it had material, personal, temporal and territorial jurisdiction, the African Court held that it had jurisdiction to hear the case. 

2. Admissibility

Ghana did not raise any objections to the admissibility of the application, but the African Court, suo motu, undertook a discussion of the application’s admissibility. The African Court accepted that the application met the admissibility requirements under Article 56(1) to 56(6) of the African Charter, as it: (i) disclosed the applicant’s identity, (ii) asked the African Court to determine whether Ghana was complying with its obligations relating to the applicant under the African Charter, (iii) was not written in disparaging language, (iv) was not based exclusively on information disseminated through the media, (v) was sent after the applicant had exhausted local remedies, as Mr. Johnson’s appeal had been dismissed by Supreme Court and (vi) was filed within a reasonable time after the exhaustion of local remedies.

After dismissing most of the grounds on which challenges to admissibility may be brought, the African Court turned to focus on the provisions of Article 56(7) of the African Charter, which states that applications must “not deal with cases which have been settled . . . in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.”  (Judgement, para 46). The Court identified three conditions which must all be “convergen[t]” for a case to be considered “settled”: (i) the identity of the parties, (ii) the identity of the applications or their supplementary or alternative nature or whether the case flows from a request made in the initial case, and (iii) the existence of a first decision on the merits.  (Judgement, para 48).

Walking through this framework, the African Court noted that it was not in dispute that Mr. Johnson had filed both the application in the present case and the communication against Ghana before the UNHRC. It also noted that although the communication to the UNHRC only invoked alleged violations of the ICCPR and not provisions of the African Charter, the Charter of the United Nations, or the Constitutive Act of the African Union, the principles which were alleged to have been violated were identical to the provisions of the African Charter which Mr. Johnson had alleged that Ghana violated in the present case. It also found that, although Ghana had not implemented the UNHRC’s decision, the African Court was not precluded from finding that the matter had been settled, as the crucial factor was that there had been a decision by a body “legally mandated to consider the dispute at an international level.”  (Judgement, para 51). Therefore, it held that the matter had been “settled” by the UNHRC as set out in Article 56(7) of the African Charter. 

The African Court went on to stress that the non-binding nature and non-implementation of the UNHRC’s decision was not relevant to admissibility, emphasizing that the African Court had not dealt with cases pending before or settled by the African Commission (“the Commission”), despite the non-binding nature of the Commission’s decisions. It also noted that Mr. Johnson had chosen to file his case before the UNHRC, not the African Court, a year after Ghana’s Article 34(6) Declaration, and stressed the need to preserve the principle of non bis in idem, which prevents states from being asked to account more than once for the same alleged violation of rights. Because of this rationale, the African Court found the application inadmissible, with eight judges voting for a finding of inadmissibility and two voting against. 

3. Dissenting Opinion of Judge Rafaâ Ben Achour

Appended to the main judgement was the dissenting opinion of Judge Rafaâ Ben Achour. Judge Achour offered two explanations for his dissenting vote: (i) that the African Court should have declared the application inadmissible for failure to file within a reasonable time after the exhaustion of local remedies and (ii) that, if the African Court held that such a timeframe was in fact reasonable, the African Court should have declared the application admissible under Article 56(7) as the UNHRC’s decision did not settle the case. 

To support his first rationale, Judge Achour discussed the need for a requirement of reasonable time in filing as a safeguard and referenced the practices of the Inter-American Court of Human Rights and European Court of Human Rights, both of which are restricted to a six-month deadline from the date of exhaustion of local remedies. In contrast, the Charter has left this deadline to the discretion of the Commission and the Court, which are to consider the circumstances of each case in determining whether it has been filed in a reasonable time. Judge Achour criticized the Court’s quick acceptance that this requirement had been met, which had been contained in the same paragraph in which it had concluded that the remainder of the factors for admissibility, save Article 56(7), had been met, with no justification given for reaching the conclusion.

Judge Achour referred to other cases from the African Court’s settled jurisprudence which contained shorter delays in respect to reasonable time, submitting that in those cases the African Court had analyzed the reasons for the applicants’ delay. Referencing the case of Warema Wanganko Werema, where the African Court considered five years and five months to be a reasonable time frame, Judge Achour submitted that the African Court had been flexible in the past, but that flexibility had always been tied to the personal circumstances of the applicants, including considerations of incarceration, indigence, illiteracy and attempts to access extraordinary remedies. In Warema, the African Court considered the applicants’ attempt to utilize the review procedure of the Tanzanian Court of Appeal and determined that they had acted in a reasonable time by filing about six months after the dismissal of the review proceedings. Judge Achour then analyzed the circumstances of Mr. Johnson’s case and concluded that his circumstances did not justify the same flexibility, discussing his actions in the six years following the exhaustion of local remedies (requesting a presidential pardon and applying to the UNHRC). Judge Achour also submitted that extending the requirement of filing within a reasonable time to include a case filed six years and two months after the exhaustion of local remedies would make the requirement meaningless and discourage States from making Article 34(6) declarations.

Though Judge Achour was clear in his dissent that he would have found the application inadmissible for failure to file in a reasonable time, he then moved to a discussion of the “settlement” of the case by the UNHRC, which he submitted should not bar its admissibility. He distinguished Mr. Johnson’s case from Gombert v. Cote d’Ivoire, which the majority had cited in its majority opinion. In Gombert, the African Court found that Mr. Gombert’s case was inadmissible as it had been settled by the Community Court of Justice of the Economic Community of West African States (ECOWAS). Judge Achour focused on the distinction between the ECOWAS Court, which is a sub-regional judicial body which issues binding decisions to member states, and the UNHRC, which is a quasi-judicial body which does not issue binding decisions but rather “Views”, noting the “diplomatic and non-authoritative language” used by the Committee in “request[ing]” State action.  (Dissenting Opinion, para 23). Based on this distinction, Judge Achour stated that the case had not been settled as it had not created an obligation for Ghana, and that if the African Court held the application had been filed in a reasonable time, it should have found the case admissible and considered the merits of the case.

4. Separate Opinion of Judge Blaise Tchikaya

In addition to Judge Achour, Judge Tchikaya also rendered a separate opinion. Judge Tchikaya’s separate opinion dissented completely from the holding of the majority, stating that an exception to the principle of non bis in idem could have been made and that the decision was a setback for the development of the law.

Judge Tchikaya based his finding that an exception to the principle of non bis in idem should have been made on the claim that the African Court’s use of the principle was inappropriate and should have focused on the known exceptions to the principle instead. Focusing heavily on the need for the African Court to work for the protection of human rights, which he submitted the decision in Mr. Johnson’s case did not do, he also stated that Ghana’s actions violated multiple articles of the ICCPR, including Mr. Johnson’s right to life. Judge Tchikaya discussed A.B. v. Norway, a European Court of Human Rights case which held that when one decision has acquired the force of res judicata, an individual should be shielded from proceedings on the same matter but not from foreseeable parallel (i.e. both criminal and administrative) proceedings. Referencing the UNHRC decision in this case, which called for additional judicial proceedings, Judge Tchikaya submitted that this rationale should have applied to Mr. Johnson’s case. 

Judge Tchikaya then moved to a discussion of three reasons for raising an exception to non bis in idemwhich he states could have been applied: (i) the application to the African Court was not an “identical case” to the case before the UNHRC, (ii) that an exception was necessitated by context and (iii) that Ghana should have been ordered to comply with international human rights norms. He submitted that the cases were not identical as the application in the instant case asked for the enforcement of the UNHRC’s views and reparations for Ghana’s failure to adopt them, and that the potential violation of the right to life, already decided by one international instrument to be occurring, should have prompted an urgency causing the African Court to find an exception to the non bis in idem principle. Furthermore, he stated that Ghana’s continued non-compliance with the views of the UNHRC should prompt the African Court to render a decision on the merits, continuing to distinguish Mr. Johnson’s case from the Gombertcase by emphasizing the urgency presented in Mr. Johnson’s case as it compares with the degree of seriousness presented by the sale of commercial property at issue in Gombert

Conclusion and Analysis

As the first case against Ghana to be decided before the Africa Court and the first case challenging the mandatory application of the death penalty, Johnsonhad the potential to see the development of African Court jurisprudence including decisions on alleged violations of the ICCPR and non-compliance with the decisions of international human rights mechanisms such as the UNHRC. Unfortunately, the finding of inadmissibility will prevent this development, although it has provided clarification on the African Court’s interpretation of Article 56(7), which should provide some guidance to future applicants. 

Receiving a decision on the merits in this case would likely have imposed an obligation on Ghana to abolish the mandatory death penalty (assuming the Court would have followed similar reasoning to the UNHRC), which could have helped to put pressure on States with similar practices. As Judge Tchikaya made clear, it could also have established a role for the African Court as a mechanism to seek enforcement of non-binding decisions from UNHRC and other bodies and even promoted African Court cooperation with UN human rights instruments. However, while the African Court issues binding decisions, it isn’t clear that a decision from the African Court on the merits of this case would have prompted action from Ghana. As the African Court has noted in its own reporting (discussed here and in Professor Rachel Murray’s recent post), implementation of decisions continues to vary by country. As Ghana has only been the subject of few decisions by the African Court, the extent to which they will implement the African Court’s judgements remains to be seen. 

Judge Achour’s dissent raises interesting questions regarding possible limitations on the African Court’s flexibility on the interpretation of the “reasonable time” requirement. So far, the African Court has been extremely willing to take cases that have exceeded the six-month limit set by other regional human rights courts. In light of the relative nascence of the African Court and the difficulties faced by many applicants in approaching it, particularly indigence and incarceration, this flexibility has not been difficult to justify and, until Judge Achour’s dissent, had seemingly not been questioned. It will be interesting to see whether Judge Achour’s dissent predicts a change in practice or whether the African Court will continue to be relatively flexible with the “reasonable time” requirement. 

It’s also important to view Johnsonin the larger scheme of work by organizations which are working for the abolition of the death penalty. Domestic work in countries such as Malawi and Kenya has led to the rejection of the mandatory death penalty, viewed by many as a first step toward total abolition of the death penalty. Ghana’s use of the mandatory death penalty has seen specific criticism due to poor detention conditions for death row prisoners and low levels of access to legal aid, with many prisoners not knowing they can appeal their sentences or that Ghana will provide them with legal aid to do so. Of the 12 death row prisoners who filed appeals between 2006 and 2016, half were successful, as reported by Amnesty International in a report titled Locked Up and Forgotten: The Need to Abolish the Death Penalty in Ghana. While Ghana is still failing to comply with the UNHRC’s decision regarding Mr. Johnson, encouraging trends in recent years suggest that the mandatory application of the death penalty is on the decline. Whether the African Court will contribute to the jurisprudence on this issue remains to be seen, but it is possible that Mr. Johnson’s case will encourage other applicants from Ghana or Tanzania, which also retains the mandatory death penalty for murder in its domestic law.