‘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?

In a letter dated 21 April, the Government of Benin informed the African Union of its decision to withdraw the declaration made under Article 34(6) of the Ouagadougou Protocol establishing the African Court on Human and Peoples’ Rights. As the Court recalled in its first judgment, direct referral by an individual or an NGO is subject to the deposit by the respondent State of a special declaration, under Article 34(6), authorizing such referral. Thus, by this withdrawal, Benin, even if it remains a party to the Court, now deprives private individuals of any direct recourse to the Court. The withdrawal of the Benin Declaration comes the day after a Court ordered the suspension of the communal elections scheduled for 17 May 2020 in the country, following a request by an opponent of the ruling government, Mr Sebastien Ajavon. While affirming that there is no immediate link between the two events, the spokesperson for the Beninese government justified his country’s decision by “the repeated slippages noted” of the African Court of Human and Peoples’ Rights (ACtHPR). Similar arguments were invoked by Côte d’Ivoire a few days later, on 29 April 2020, when it announced that it was also withdrawing its declaration under Article 34 (6).

The decisions of the Governments of Benin and Côte d’Ivoire are worrying for at least two reasons, both of which have an impact on the future of Arusha-based Court’s jurisdiction. The first relates to the setback that this withdrawal may represent. Indeed, the making by States of the optional declaration under Article 34 (6) is more the exception than the rule. According to the Court’s website, of the thirty States that have ratified the Ouagadougou Protocol, only nine have ever made the declaration. In this context, any retreat by a State resulting in withdrawal is an important event because it is likely to dissuade other States from opening the door of the African courtroom to their citizens.

Secondly, and perhaps most worryingly, this withdrawal comes after those of Rwanda and Tanzania. On 29 February 2016, Rwanda was the first State to withdraw its declaration allowing individuals to bring cases before the Court. This dangerous precedent was followed a few years later when Tanzania, the Court’s host State, also decided to end the possibility of its citizens bringing cases before the Court by a letter received by the African Union on 21 November 2019. Thus, while there is a real reluctance on the part of African States to open the Court’s courtroom to their citizens, there is a worrying trend in the opposite direction: the retreat of those States that had already taken the step. It would, therefore, seem that after the sub-regional jurisdictions, it is now the African continental jurisdiction that has to face the backlash of States.

While there can be no doubt that any attempt to curb or subordinate the Court must be looked at with caution, it also seems to me necessary to avoid a biased approach that focuses on the effects while ignoring the causes. To “save” the African Court, and enable it to effectively carry out its important role in the protection of human rights on the continent, it is necessary not only to remind States of their obligations, but also to invite the Court to apply greater rigour in its jurisprudence.

The Pitcher will go to the well once too often…

Only Rwanda indicated in its letter of withdrawal the reasons for its decision:

In good faith Rwanda unilaterally and voluntarily accepted to allow NGOs’ and individuals to lodge cases before the Court. It was later realized that the Declaration, as it is currently framed, was being exploited and used contrary to the intention behind its making. Specifically, convicted genocide fugitives secured a right to be heard by the Honourable Court, ultimately gaining a platform for re-invention and sanitization, in the guise of defending human rights of the Rwandan people”. (Clarification, Ministry of justice of the Republic of Rwanda)

Beyond the official withdrawal notice, the Tanzanian government has not made any additional statements clarifying or justifying its decision. Some have implied the withdrawal could be connected to the Court’s many judgments against Tanzania over the years, around 65% of the cases of the Court. The Spokesperson for the Government of Benin, for his part, referred to the Court’s decision to give priority to individual interests over the collective interest: under the pretext of protecting the interests of one applicant, the ACtHPR wished to jeopardise the interests of an entire nation and the duties of a government that wanted to organise its elections at the right time (translation). Côte d’Ivoire used the same arguments, even accusing the Court of “undermining the foundations of the rule of law”.

In my view, there is no doubt that these criticisms, whether well-founded or not, should not lead to the extreme solution of withdrawing jurisdiction from the Court. Applying a text necessarily implies an interpretation on the part of the legal operator. And that interpretation itself implies a sovereign assessment by the judge not only of the letter and spirit of the text but also of the facts. By accepting the competence of the judge, States agree to comply with the judge’s application/interpretation, in other words, with the choices that the judge will necessarily have to make. The integrity of the judicial function would be greatly compromised if the judge had to live with the haunting of a sword of Damocles, in the form of a backlash, if the interpretation/application of the legal rule did not suit the litigant.

To say this, however, does not mean that the judge can give free rein to his/her interpretative imagination with impunity. Saying that the judge should not engage in politics does not mean that the judge should not have a jurisprudential policy. He/She cannot ignore the significance of his/her decisions and must no doubt be attentive to the reactions that these decisions provoke in the community in which he/she operates: the judge must know how far it can go without going too far. Any court must thus ensure, through the rigour of its reasoning and the strength of its motivations, that it establishes at least the plausibility of its interpretation, failing to succeed in convincing that it was the only possible one.

Admittedly, the practice of the African Court has encountered serious issues and has raised many reservations and criticisms from commentators. It is impossible to list here the many criticisms levelled at the Court. I had already expressed concern many years ago about the perceived lack of rigour in the reasoning of the ACtHPR judgments. States could legitimately be frustrated by the laconism of the Court’s replies to some of their arguments, in particular on questions of jurisdiction and admissibility (see, for example, the Court’s most recent Order). The impression sometimes is of a Court so concerned with the protection of human rights that it does not hesitate to bypass possible procedural obstacles to provide a remedy to all citizens of a country (See judgment of 14 June 2013). The iterative opinions of Judge Fatsah Ouguergouz, attached to virtually all the Court’s judgments when he was sitting on the bench, have shown the concern of some judges within the ACtHPR for the lack of rigour of the Court on procedural issues.

The discomfort of African States can also be explained by the Court’s numerous normative and jurisprudential borrowings. The strong presence of the case-law of the organs of other human rights protection bodies, in particular the European Court of Human Rights, is so abundant in the case-law of the African human rights judge that one may legitimately be concerned about a mimicry that could cause the African system to lose its specificity. While one can understand the refusal to lock oneself into a register of cultural particularism, and the universality of human rights, that explains the use of exogenous sources, one can be more dubious about this unbridled quest for the legitimization of Court’s decisions in the jurisprudence of other institutions.

But you can’t throw the baby out with the bathwater…

As recalled in the Vienna Declaration and Programme of Action, the individual, as the main beneficiary of fundamental rights and freedoms, must be able to participate actively in their realization. Created to protect human rights on the Continent, ACtHPR should naturally be able to be seized by people residing in Africa if they feel or believe that these rights are not respected. By depriving individuals of such access, African states are diluting the effectiveness of the continental judicial system by subjecting the protection offered by the Court either to a referral from the African Commission of Human and Peoples Rights (the Banjul Commission) or to unlikely State action. Even in the first hypothesis, the victim remains subject to the policy and agenda of the Banjul Commission, which can legitimately choose to give preference to bringing cases before the Court only for systematic or serious violations to the detriment of “merely individual” actions. Depriving individuals of direct access is, in fact, a limit to the protection of human rights, to which African states have declared themselves committed in both the African Charter and the AU Constitutive Act, in that it limits access to the courtroom to those most likely to bring to light the most flagrant violations of human rights.

By opting therefore for the abandonment of state control in the field of human rights, African States that make the declaration of Article 34 (6) show their willingness to ensure effective and efficient protection of human rights in accordance with their international commitments and their constitution. The possible shortcomings and deficiencies of the protection body, quod non, should invite reflection on its improvement and not deprive citizens of a necessary remedy.