Recently, reports emerged (here and here) that the Tanzanian government withdrew its declaration allowing individuals and NGOs to directly submit applications against it at the African Court on Human and Peoples’ Rights (AfCHPR). Tanzania’s Minister for Foreign Affairs and East African Cooperation Prof. Palamagamba Kabudi signed the notice of withdrawal on 14 November 2019, and the African Union Commission received it on 21 November 2019.
Beyond the official withdrawal notice, the Tanzanian government has not made any additional statements clarifying or justifying its decision. Based on the timing, some have implied the withdrawal could be connected to a recent case (Ally Rajabu and Others v. United Republic of Tanzania) concerning Tanzania’s mandatory death sentence for murder convictions. However, considering the Court’s many judgments against Tanzania over the years (discussed below), it is more likely that this decision was in the making for quite some time.
The human rights community has been swift in its response. 20 civil society organizations issued a joint statement and the United Nations Office of the High Commissioner for Human Rights tweeted to condemn Tanzania’s decision and urge the government to reconsider.
While Tanzania is still a member of the African Court, withdrawing its declaration allowing individuals and NGOs to bring cases against it is significant not only for Tanzanians’ human rights protections, but also for the African Court as an institution. Cases against Tanzania account for a major portion of its caseload, and Tanzania—the Court’s host state—is the second state to withdraw this declaration.
Article 34(6) declarations for individual and NGO access to the African Court: the main pipeline for cases
Of the African Court’s 30 member states, only 10 (Benin, Burkina Faso, Côte d’Ivoire, Gambia, Ghana, Malawi, Mali, Rwanda, Tanzania, and Tunisia) have ever made the declaration under Article 34(6) of the African Court’s Protocol accepting the competence of the Court to receive cases from individuals and NGOs. Since the Court’s creation in 2006, this direct access has proven to be the Court’s main pipeline of cases, giving the Court the opportunity to help victims of human rights violations who exhausted local remedies and went to the regional level to seek justice. Based on the Court’s statistics reported as of September 2019, of the 238 applications it has received, individuals made 223 applications, and NGOs made 12 applications.
If a state has not made an Article 34(6) declaration allowing individuals or NGOs to directly submit applications against it, African states or the African Commission on Human and Peoples’ Rights (“Banjul Commission”) can submit applications to the Court. Thus far, no state has submitted an application to the African Court, and the Banjul Commission has referred only 3 cases to the African Court. Direct access for individuals and NGOs, therefore, dramatically increases the caseload of the African Court, which is in the process of developing its jurisprudence and carving out its role on the continent.
States withdrawing individual and NGO access: from Rwanda to Tanzania
In recent years, as the African Court has been deciding more and more cases and issuing judgments against states, it has been subject to some state resistance. To limit the African Court’s interventions in their internal affairs, states naturally would consider cutting off the African Court’s principal source of cases against them (i.e., withdraw their Article 34(6) declarations), and have African governments and the Banjul Commission control the flow of cases to the African Court.
In 2016, it what Oliver Windridge nicknamed “Rwexit” (here and here), Rwanda was the first state to give notice that it was withdrawing its declaration, which it had made in 2013. The highly controversial Ingabire Victoire Umuhoza v. Republic of Rwanda case apparently prompted Rwanda’s decision. In 2014, shortly after Rwanda had made its declaration, Ingabire—who was leader of the Rwandan opposition party Forces Democratiques Unifiées, and who had been convicted of genocide- and terrorism-related crimes—submitted an application to the African Court, claiming Rwanda had violated her fair trial rights. Justifying withdrawing the declaration, Rwanda’s Justice Minister argued that “the declaration progressively degenerated into a platform which all sorts of organisations and individuals, including convicts of the 1994 Genocide against the Tutsi, could use to promote their agenda.”
Faced with this unprecedented withdrawal, the African Court noted that it raised three main questions: whether Rwanda’s withdrawal was valid; if so, what were the applicable conditions for such a withdrawal; and finally, what were the legal effects of the withdrawal. The Court decided that it had jurisdiction to deal with the withdrawal, Rwanda was entitled to withdraw its declaration, and the withdrawal should have a period of notice of one year. After a year, the withdrawal would take effect but would not divest the Court of its jurisdiction over pending cases. The African Court thus clarified the terms for withdrawing an Article 34(6) declaration—for Rwanda and all African states that had made these declarations.
Rwanda’s move did not set off a “cascade” of withdrawals. Several African states made moves in the opposite direction: Benin submitted an Article 34(6) declaration around the time of Rwanda’s withdrawal notice in 2016, and Tunisia and The Gambia submitted declarations well afterwards in 2017 and 2018, respectively. Tanzania’s recent withdrawal of its declaration, however, shows that Rwanda is no outlier. Now, 2 of the 10 states that made this declaration subsequently have chosen to withdraw it.
Based on the Rwandan precedent, it is clear that Tanzania’s withdrawal is valid, will take effect in one year from the withdrawal notice, and will not affect cases preceding the date it takes effect. Thus, for Tanzanian individuals and NGOs, there is a “deadline” for making applications to the African Court. Afterwards, they will rely on African states or the Banjul Commission to bring cases against Tanzania to the African Court. But based on the track record so far, they should not hold their breath.
Implications for the African Court and African Human Rights
This decision has far-reaching implications for the African Court and, by extension, the development of the African regional human rights system. Cases against Tanzania, brought by individuals and NGOs, have represented a major portion of the African Court’s caseload so far. Based on the latest court-reported statistics, Tanzania accounts for 33 of its 76 finalized cases (43%), and 105 of its 167 pending cases (63%). Eliminating this source of cases for the African Court will obviously restrict its ability to hold Tanzania accountable for human rights violations, but it also will limit significantly the Court’s overall caseload and thus its opportunities to develop its jurisprudence. This can be considered a setback for a relatively young court and regional human rights system.
In addition, having its host state rescind individuals’ and NGOs’ access is a symbolic blow to the African Court. In the early days of hosting the African Court, Tanzania—possibly more so than any other African state—offered the Court strong rhetorical support, even if its practical support sometimes was lacking (see my research on relations between Tanzania and the African Court, specifically relating to Tanzania’s provision of the Court’s premises, here). In 2012, for example, Tanzania’s Minister of Justice and Constitutional Affairs Mathias Chikawe recognized that, by hosting the African Court, Tanzania was “putting [its] human rights record under close scrutiny,” and “to be known as the Justice and human rights capital of Africa, [Tanzania] must face up to this challenge.” Chikawe, moreover, emphasized that “building an effective human rights system… must be a collective endeavour.” Tanzanian politics has changed considerably since then, with human rights organizations like Amnesty International and Human Rights Watch warning of Tanzania’s declining human rights conditions. With this withdrawal of individual and NGO access to the African Court—the source of cases against Tanzania—it is clear that Tanzania is shying away from this challenge and is no longer a credible advocate for the Court.
When it comes to international institutions, withdrawals are relatively rare events, and having two withdrawals of Article 34(6) declarations in less than four years should not be considered a trend or crisis. This latest withdrawal is undeniably a blow for the African Court, both practically and symbolically, but like other regional human rights courts that have faced similar challenges, the African Court will be able to adapt and carve out spaces where it can have impact.