By Nani Jansen Reventlow
What if you could go to your regional human rights court and claim a violation of your individual rights under the ICCPR? CEDAW? The CPRD? And, in the end, get a binding decision? It sounds almost too good to be true, but there is one region where this would be possible: Africa.
The mandate of the African Court on Human and Peoples' Rights, which celebrated its tenth anniversary last year, complements that of the African Commission on Human and Peoples' Rights in protecting and interpreting the African Charter on Human and Peoples' Rights. However, the Court's mandate goes further than issuing binding decisions on State compliance with the Charter. Article 3 of the Protocol that established the Court states that the Court's jurisdiction extends to all cases and disputes submitted to it concerning a violation of the Banjul Charter "and any other relevant Human Rights instrument ratified by the States concerned."
The extensive scope of the African Court's jurisdiction is unique compared to its counterparts in other regions, the Inter-American Court of Human Rights and European Court of Human Rights, which each were originally only given an explicit mandate to consider violations concerning the regional human rights treaty they had been created to oversee. (The mandate of the Inter-American Court has subsequently been expanded by various OAS conventions conferring jurisdiction upon the Court.) The African Court's mandate offers a unique opportunity for it to issue binding decisions on human rights violations under treaties for which this normally is not possible, as the bodies overseeing the various UN human rights treaties have no binding decision-making power. This would potentially allow for increased protection of human rights on which the African Charter is considered to fall short of other international standards, such as the right to a fair trial, or protection of rights that are entirely absent from the Charter, such as the right to privacy. Here also lies a potential for controversy regarding rights that are less explicitly protected by dedicated human rights treaty provisions, such as LGTBQI rights. For example, the African Commission on Human and Peoples' Rights initially refused to give the Coalition of African Lesbians, a South Africa-based non-profit organisation with over 30 member organisations from across the continent, observer status as its activities did not "promote and protect any of the rights enshrined in the African Charter." In 2015, a new application submitted by the Coalition was eventually accepted. This raises important questions on how the Court will deal with claims of this nature being brought before it when the time comes.
The Court's practice in finding violations under human rights treaties other than the African Charter has been inconsistent so far. In the first cases where applicants made a claim of violations of other treaties, mostly the ICCPR, the Court found it sufficient to find a violation of the Charter and leave it at that. In Tanganyika Law Society v. Tanzania, the Court's first judgment of the merits which dealt with the right to participate in public and governmental affairs, the Court, having considered the alleged violations under Charter, did not "deem it necessary in this case to consider the application of these treaties." In Zongo v. Burkina Faso, a case which dealt with the failure to investigate the murder of an investigative journalist, after finding Burkina Faso in violation of its fair trial obligations under the Charter, the Court found it did not have to consider the "allegations made in the same vein" under the ICCPR and the Universal Declaration of Human Rights.
This changed with Konaté v. Burkina Faso, the Court's first judgment on freedom of expression. Here, the Court found Burkina Faso's one-year imprisonment of a journalist for criminal defamation to be in violation of not only the African Charter, but also the ICCPR and the Revised ECOWAS Treaty. The Court followed this line in a number of subsequent decisions and, most notably, at its own initiative in the case of Alex Thomas v. Tanzania. The case concerned an applicant serving a 30-year prison term for charges of armed robbery. While the complaints had been formulated as a violation of the African Charter only, the Court also found a violation of the ICCPR.
Perhaps the most interesting decision to date is the Court's most recent judgment: APHD v. Cote d'Ivoire. Here, the Applicants argued that the respondent State's adoption of a new Electoral Commission law had violated the right of equality before the law as well as the right to an independent and impartial electoral body. These complaints were framed a violation of the African Charter on Human and Peoples' Rights, the African Charter on Democracy, Elections and Governance, the ECOWAS Protocol on Democracy and Good Governance, the Universal Declaration of Human Rights and the ICCPR. In its judgment, the Court engaged in a detailed discussion as to whether or not the African Charter on Democracy, Elections and Governance and the ECOWAS Protocol on Democracy and Good Governance could be considered "human rights treaties." The Court concluded that, since both instruments have the purpose of either expressly enunciating the subjective rights of individuals or placing mandatory obligations on State Parties for the enjoyment of rights, they did qualify as such. The Court found a violation of all instruments, except for the Universal Declaration of Human Rights. Arguably, the Court considered this an instrument that does not place binding obligations upon States, but this was not explicitly clarified. Notably, the Court ordered the respondent State to make its national legislation "compliant with the aforementioned instruments to which it is a Party," i.e. all treaties violated and not just the Banjul Charter.
It should be noted that the Court's findings will inevitably be impacted by the legal representation of the parties: did they argue violations of other international standards and presented the Court with persuasive comparative and international jurisprudence? Another important factor is the expertise available amongst the legal staff of the Court and their ability to supplement such sources there where they have not been presented by the parties themselves. While the key arguments made by parties in each case will be reflected in decisions and judgments, a proper assessment of the openness and level of proactivity of the Court in including an assessment of violations of other standards than argued by the parties can only be made by studying the casefile in its entirety. A more critical view is that, under the jura novit curia principle, supplementing the relevant standards under international law is a key responsibility of the Court as an international human rights tribunal. In the words of the International Court of Justice: "the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court."
The drafters of the Charter explicitly bestowed the Court with this unusual jurisdictional scope. It will be interesting to see how the Court will make use of it as it further develops its caselaw. Given the modest number of ratifications of the Protocol establishing the Court and few States that have made the necessary declaration for complaints to be filed against them directly by NGOs and individuals, the Court may initially choose to take a cautious approach to prevent losing the buy-in of Member States. Whether the Court will take a bold stance or not, it should at least be hoped that it will solidify its practice and maintain a consistent line.
A more extensive article on this topic by Nani Jansen Reventlow and Rosa Curling is forthcoming.