Backlash Against International Courts in West, East and Southern Africa

Scholars have studied backlash against international courts (ICs) for more than a decade. While Cassandra-like warnings about backlash seldom materialize, Alter (2000) and Helfer (2002) documented examples of government court-curbing campaigns in Europe and the Caribbean. One can question the effectiveness of these backlash efforts, which did not fundamentally change the design or the practices of the targeted ICs and review bodies. In fact, over the last forty years, nearly every revision of the structure and mandate of ICs has expanded jurisdiction, widened access rules or strengthened judicial sanctioning powers (See Alter 2014, 84-86 and Gathii 2013, 260-261 and Gathii 2016, 40).

Our EJIL article, Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences, considers three more recent efforts to thwart or cow international judges. These efforts are noteworthy in that governments advanced concrete and credible proposals to limit the power of ICs in response to politically embarrassing rulings. The three backlash campaigns produced divergent outcomes. In West Africa, governments rejected the Gambia’s effort to restrict the powers of the Economic Community of West African States (ECOWAS) Court to review human rights complaints. In East Africa, Kenyan officials failed to eliminate the East African Court of Justice (EACJ) or sanction its judges, but succeeded in restricting the court’s access rules and narrowing its jurisdiction. In Southern Africa, Zimbabwean President Robert Mugabe used extra-legal tactics to suspend the Southern African Developing Community (SADC) Tribunal and later pressured member states to adopt a new protocol stripping the Tribunal’s power to review complaints from private litigants.

Our account of these backlashes – which includes information about the court-curbing campaigns that is not widely known – explains why it is difficult for governments to seriously sanction ICs in response to adverse rulings. This introduction to the EJIL:Talk! symposium relating to our article summarizes why the ECOWAS backlash failed, the EACJ backlash was redirected, and the SADC Tribunal backlash succeeded.

The ECOWAS Community Court of Justice: A failed backlash

Like the EACJ and SADC Tribunal, the ECOWAS Court adjudicates cases filed by individuals and NGOs alleging violations of human rights. Unlike those two tribunals, however, ECOWAS judges have an express mandate to hear such cases pursuant to a 2005 Protocol (See Alter, Helfer and McAllister, 2013).

The backlash against the court stemmed from two suits against the Gambia filed on behalf of journalists who had been arrested, detained, and tortured for publishing news articles critical of the regime of President Jammeh. The cases resulted in high-profile and embarrassing rulings against the government, leading Gambian officials to launch a political attack against the Court in the form of proposals to narrow its human rights jurisdiction and limit access by private litigants.

A committee of legal experts rejected these proposals, and their decision was later endorsed by ECOWAS Justice Ministers. One explanation for the defeat was the widely shared perception that the Gambia is a bad actor with limited political clout in the sub-region. The defeat would not have occurred, however, without the extensive mobilization efforts of West African human rights NGOs and attorneys, who issued press releases, filed lawsuits, and successfully demanded access to key meetings. These actions, tacitly supported by officials in the ECOWAS Secretariat, ensued that the Gambian backlash campaign was well publicized, that civil society consultation procedures were followed, and that moderate voices would be heard when experts convened to discuss the proposals. In the years since the backlash, the ECOWAS Court has continued to condemn the Gambia for its repression of journalists and the Jammeh regime has continued to ignore the court’s rulings against it.

The East African Court of Justice: A Backlash Redirected

The backlash against the EACJ arose from a dispute over a slate of candidates chosen by the Kenyan government to serve in the sub-regional parliament, the East African Legislative Assembly (EALA). In Anyang Nyong’o v. Attorney General of Kenya, the EACJ issued an injunction barring the candidates’ swearing in because they had not been elected as required by the EAC Treaty.

The injunction outraged Kenyan officials, whose first move was a behind-the-scenes campaign to kill the fledgling court. This proposal was viewed as too extreme by the presidents of Uganda and Tanzania, who were committed to reviving the East African integration project. Unable to abolish the EACJ entirely, Kenya threatened to oust the court’s two Kenyan judges. This effort also backfired. The EACJ refused to be cowed and the government later admitted that the corruption allegations it had leveled against one of the judges was baseless.

Undaunted, Kenya pursued a third approach—amending the EAC Treaty provisions governing the court’s powers. The amendments were drafted with exceptional haste and approved by the heads of state at an extraordinary summit meeting that bypassed Community consultation procedures. The treaty revisions split the court into two divisions (allowing member states to appoint more conservative judges to a new appellate bench), expanded the grounds for removing or suspending judges facing domestic misconduct allegations, clarified that the court could not hear cases in which the Treaty confers jurisdiction on domestic actors, and added a two-month limitations period for private litigants to file complaints.

When civil society groups challenged the amendments, the court found fault with the processes of their adoption. But it refused to invalidate the amendments. Meanwhile, Kenya’s government eventually complied with the contested Nyong’o ruling that triggered the backlash.

The Southern African Development Community Tribunal: A Successful Backlash

 The backlash against the SADC Tribunal stemmed from a 2007 suit by Michael Campbell, a white Zimbabwean landowner, challenging the seizure of his farm as part of President Robert Mugabe’s post-colonial land redistribution policies. The Tribunal ruled in favor of Campbell, finding that the government had discriminated against him on the basis of race, confiscated his land without due process, and denied him access to the courts. The SADC judges also issued a preliminary injunction barring the state from evicting Campbell or interfering with his use of the land.

Over the next several years, the Tribunal issued a series of rulings and orders that broadly interpreted its jurisdiction and the SADC Treaty. These bold decisions – and the judges’ willingness to press the SADC Summit to sanction Zimbabwe for noncompliance – exacerbated the confrontation with Mugabe and set the stage for the backlash against the sub-regional court and its judges.

From the outset, Mugabe was openly contemptuous of the Campbell litigation. He derided the case in the press and developed a legal and political strategy to undermine the Tribunal. When the terms of the judges and staff were set to expire, Mugabe blocked their renewal and the appointment of replacements. The result was first a de facto and then a de jure suspension of the sub-regional court. Mugabe later derailed a SADC Summit meeting to discuss contempt charges against his government by alleging that the Tribunal had never been properly constituted. The Summit called for an external review of the Tribunal’s powers. The resulting report vindicated the judges’ Campbell rulings, but Zimbabwe repeatedly rejected proposals to reappoint the judges or to preserve the Tribunal’s power to hear human rights suits from individuals. By lobbying more moderate member states, maneuvering behind the scenes, and publicly linking the Campbell cases to Western political attacks against African governments, Mugabe ultimately succeeded in adopting a new Protocol that, if it enters into force, will reconstitute the SADC Tribunal as an interstate judicial body.

Civil society groups in Southern Africa repeatedly protested their exclusion from key SADC decision-making venues. But Mugabe was dogged in opposing compromise proposals that pro-Tribunal NGOs had convinced national justice ministers to support. His strategy of blocking compromise proposals while running out the clock – to the point that the SADC Tribunal ceased to exist in practice – eventually led the other member states to accept that removing private access was price to be paid for resurrecting the sub-regional court. Yet Mugabe was unable to overturn or invalidate the contested rulings, and Campbell’s lawyers later succeeded in partially enforcing the rulings in South Africa.

Explaining the Divergence in Backlash Outcomes

The three backlash campaigns summarized above highlight the difficulty of collectively sanctioning ICs for politically embarrassing rulings. The obstacles to successful backlash are both political and institutional. Politically, governments may be reluctant to openly support national leaders who violate international human rights law. Institutionally, inertia is on the side of court supporters because blocking reform proposals is easier than reaching consensus to change the status quo.

These impediments suggest a clear strategy for actors who support sub-regional adjudication. Delaying and publicizing backlash campaigns allows tempers to cool, exposes the ulterior motives of seemingly benign proposals, and inhibits other governments from tacitly supporting court-curbing efforts. In addition, by insisting that officials follow established decision-making procedures, Community Secretariats, civil society groups, and regional parliaments can slow sanctioning initiatives, enhance transparency, and create opportunities to defeat or at least water down backlash proposals. These efforts were not, however, enough to derail Mugabe’s tenacious and ultimately successful efforts to strip the SADC Tribunal’s power to hear complaints from private litigants.