Another One Bites the Dust: Côte d’Ivoire to End Individual and NGO Access to the African Court

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On 29 April 2020, the government of Côte d’Ivoire issued a press statement announcing its decision to withdraw the right of individuals and NGOs to submit complaints directly to the African Court on Human and Peoples’ Rights (‘the Court’). This right was granted in 2013, when it deposited a special declaration with the Court in accordance with Article 34(6) of its Protocol. According to the statement, Côte d’Ivoire will withdraw its declaration but remain a Party to the Court’s Protocol. This means that, once the withdrawal takes effect, the Court will still be able to hear complaints against it, but only those submitted by the African Commission, other State Parties to its Protocol and African intergovernmental organisations.

With this decision, Côte d’Ivoire becomes the third country in just 6 months to announce an end to individual and NGO direct access to the Court. This follows Tanzania and Benin, who officially withdrew their declarations on 14 November 2019 and 21 April 2020 respectively (discussed here and here). This article explores the context and implications of Côte d’Ivoire’s decision.

Context of the decision: The case of Guillaume Soro

Côte d’Ivoire’s decision to withdraw its special declaration is a direct response to an Order for Interim Measures issued against it by the Court on 22 April 2020. This Order concerns a complaint brought by twenty Ivoirians, most of whom are politicians, who were indicted on charges of embezzling public funds, theft of public property and plotting against the authority of the state in December 2019. The most prominent among them is Guillaume Soro, who is a former Prime Minister and President of the National Assembly of Côte d’Ivoire. Soro had recently announced his decision to stand in the country’s upcoming presidential elections and was planning to return to Côte d’Ivoire from France to begin campaigning. Following their indictments, 19 of the Applicants were arrested and placed in preventative detention. An arrest warrant was issued for Soro, who remains in France.

On 2 March 2020, the Applicants instituted proceedings at the African Court alleging violations of their human rights. They also submitted a request for interim measures to suspend the warrants, which the Court has the power to order under Article 27(2) of its Protocol and Rule 51 of its Rules. The Applicants claimed that Côte d’Ivoire had violated a number of their rights found in the African Charter on Human and Peoples’ Rights and the ICCPR, including the right to fair trial, the right to freedom and security, the right to be presumed innocent and the right to freedom of movement in relation to Guillaume Soro (Order, para 7).

In dealing with the substance of the interim measures request, the Court recalled from its jurisprudence that it can only order interim measures if the requirements of “extreme gravity, urgency and the prevention of irreparable harm” are met. Elaborating on these concepts, the Court held that extreme gravity “presupposes that there is a real risk and it is imminent that irreparable harm could take place before the Court renders its final judgement”. The Court determined that there is urgency “each time acts which may cause irreparable harm could take place at any time before the Court renders its final decision in the matters”. (Order, para 33).

Applying these criteria to the facts, the Court noted that the execution of detention and arrest warrants against a group of mostly political figures could seriously undermine their political rights. It considered that this situation was particularly acute and urgent in the case of Guillaume Soro, who was planning to stand for election in a short time (Order, paras 34-35). The Court further noted that arrest and detention warrants are usually issued as protective measures or when there is a risk the accused will not appear; however, these justifications were not engaged in the case of a group of prominent individuals whose addresses were well known. Additionally, the Court placed emphasis on the presumption of innocence the accused benefit from whilst investigations are ongoing (Order, paras 36-37). The Court concluded that this was a situation where there was a serious risk of the applicants being deprived of the enjoyment of their rights and whose unforeseeable consequences may cause them irreparable harm. It subsequently ordered a stay of the warrants pending its final decision on the merits. (Order, paras 38-39).

Almost immediately following the Court’s Order, Côte d’Ivoire withdrew its special declaration. In doing so, it cited the African Court’s “grave and intolerable actions”, which violate its sovereignty and “undermine the foundations of the rule of law by weakening its justice system”.

Implications of the decision

Côte d’Ivoire’s decision to withdraw its special declaration is a setback for those seeking accountability for human rights violations within the country. Despite an end to the mass violence and abuses that characterised the 2010-2011 post-election crisis, reports of human rights violations persist. A recent Universal Periodic Review submission by the Coalition of Ivorian Human Rights Defenders (CIDDH) and Swiss NGO CIVICUS, details the frequent intimidation and harassment of journalists, assaults on human rights defenders and the violent repression of peaceful protests within Côte d’Ivoire. Another recent report by Human Rights Watch, points to abuses by the national security forces, improper Executive influence over elections and a heavily politicised judiciary, which impedes access to justice. In a country where human rights violations are so prevalent, and where the courts are neither impartial nor independent, the power to submit complaints directly to the African Court has become an increasingly relied on avenue of redress for individuals and the NGOs. The extinguishment of this right is consequently a blow for these groups.

Whilst the withdrawal of Côte d’Ivoire’s special declaration is a negative development, as a member of the Economic Community of West African States (ECOWAS), it should be recalled that it is subject to the jurisdiction of the ECOWAS Community Court of Justice (ECCJ). Since the adoption of a Supplementary Protocol in 2005, the ECCJ has been able to receive complaints from individuals alleging human rights violations and has proved itself to be a robust guardian of these rights. For example, it has held that criminal defamation laws targeting journalists in The Gambia disproportionately interfere with the freedom of expression, that the use of military tribunals to prosecute civilians in Nigeria violates fair trial rights, and it has ruled against Niger for condoning modern forms of slavery. Despite setbacks therefore, avenues for redress still exist, and the ECCJ should be explored as an option by victims of human rights violations. It is important to note that is no requirement to exhaust domestic remedies prior to bringing a complaint to the ECCJ, meaning there are fewer hurdles for applicants than at the African Court.

Perhaps the greater impact of Côte d’Ivoire’s decision to withdraw its special declaration will be on the Court itself. In the effort to discharge its mandate to protect human rights on the Continent, the Court relies on cases being submitted to it. As only a handful of states grant individual and NGO direct access, there has never been an inter-state complaint, and the African Commission has referred just 3 cases for a decision, the Court’s caseload has historically been small. A substantial number of the cases it has decided and which are pending before it are individual complaints against Tanzania, and whilst there have been only 4 finalised cases concerning Cote d’Ivoire, a number of pending decisions concern complaints against it. The withdrawal of declarations, particularly by countries from which many cases originate like Tanzania and Côte d’Ivoire, will mean that the Court’s caseload is likely to be significantly reduced going forwards. This is a deeply concerning development, as without a sufficient number of cases to adjudicate, the Court’s authority, legitimacy and continuing ability to operate could be seriously endangered.

Conclusion

The Guillaume Soro affair illustrates the insoluble dilemma the Court finds itself in. It has been given a mandate to promote and protect human rights on the Continent; however, in its efforts to discharge this mandate, it faces perpetual backlash from states whose special declarations it depends on to operate. It is to the Court’s credit that it has thus far not chosen to mollify or appease states through its rulings despite the ever more likely consequences. Instead, as the Court’s granting of interim measures in the Soro case demonstrates, it has proven itself willing to wade into fraught power struggles to protect fundamental rights.

Going forwards, in addition to the Court’s own efforts, it will be the job of Continental and regional organisations like the AU and ECOWAS to encourage and impel states to uphold their human right commitments. Unlike the Court, these institutions can exercise a range of measures if states fail in this regard, from diplomatic pressure to sanctions. It will also be the job of the African Commission, which possess powers to refer cases to the Court, to be much more proactive in its referrals and perhaps more transparent about when it will refer a case to the Court. This will assist those from states which have either not deposited, or withdrawn, their declarations to nevertheless foresee when their cases might be transferred to the Court for a binding determination. Individuals should also consider having recourse to different sub-regional courts, like the ECOWAS Court, which has a strong record of protecting human rights.

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Comments

KOUROUMA Oumar says

May 19, 2020

Thank you my dears for this contribution.
For my short comment I'd like to add this to your analysis. I think that it's important to try to ask: what explain this crisis in the African international society ? Or what explains theses behaviours of African States ?

From a sociology of International Law perspective in Africa, we can give some responses:
- The first concerns the structure of the African international society: this regional society bornt from the emergence of the New african independant states is characterised by some sacralised classical principles as the principle of sovereignty. In this sense, suprnationalism is not always welcome. The paradox of souvereignty in African international order is here : it's not really effective but it's always omnipresent. So the question is : how can we, in contructivist perspective, work with african actors (States here, or notably the praticians) for deconstruction of this sacralisation of some classical principles of African international legal order in the interest of African cityzens?

The second element is about : a critical analysis of the logic of the utilisations of international Law by African actors (States and non states actors). For that, We need to notice the nature of International law in Africa. This nature, as professor Romain Yakemtchouc obvsered, is that international Law in Africa is more politic (un ordre juridique entâché d'éléments politiques). This characteristic is a result of the modern history of the formation of international Law in Africa since the beginning of XXeme century (Africa met international Law in the context of fight against domination). The main consequence this nature of international Law in Africa is the predominance of an instrumental relation of African actors (States and non States) to many International Legal instruments. This instrumentalisation is always determined by the internal political considerations (the continental interests in the past), the internal political. Professor Luc Sindjoun gave one of the best analyse of this instrumentalisation (sociologie des normes de civilité internationale). But, this observation don't mean that no actors believe in some international legal values, but we need to know how they reappropriate these values?
I think that the strategies of the enforcement of African regional legal instruments need to take account these structural elements.