Is the African Court on Human and Peoples’ Rights in an Existential Crisis?

Abstract

Employing a sociological perspective on the law, this study explores instances of resistance against the African Court on Human and Peoples’ Rights, the African Union’s continental human rights judicial body. This approach allows us to examine different forms of resistance that might not necessarily be of a legal character, but which may still have profound implications for the Court’s authority, legitimacy, and operation. Accordingly, the article identifies two forms of resistance against the African Court: ‘pushback’ and ‘backlash’. The former refers to an ordinary form of critique directed against the overall development of an international court, while the latter is understood as an extraordinary form of critique that puts the fundamental authority of a court at stake. While pushback was mainly seen in the early stages of the Court’s establishment, backlash started to emerge following its ground-breaking judgments that caused heated debates on controversial topics. This article concludes that based on the identified and analysed forms of resistance, it is doubtful that the African Court can maintain and fulfil the purpose for which it was established: the protection and promotion of human rights in Africa.

1. INTRODUCTION

Despite the advancement of international human rights law, human rights and the system of its international protection have come under increased pressure in recent years. In fact, a number of international courts and institutions have faced different patterns and forms of resistance against their development and authority. ¹

The issue of resistance in the form of non-compliance with judgments exists in all regional human rights courts, despite the fact that States’ compliance with judgments of a judicial body is a fundamental commitment when it enters such a mechanism. ² This problem, compounded by several other forms of resistance, poses a significant threat to the African continent’s future protection of human rights.

This paper analyses the resistance of African States to the African Court on Human and Peoples’ Rights (African Court or Court). Operating on a continent where States have a strict understanding of State sovereignty, which is often considered as absolute, ³ the African Court faces several challenges representing different forms of resistance against its development, in general, and its authority in particular. Some forms of resistance include non-compliance with the judgments of the Court and the recent decisions of several Member States intended to curb the Court’s jurisdiction regarding individual communications. ⁴

While the challenges and issues facing the African Court are a common theme running through the literature and are discussed by stakeholders and academics, ⁵ the variety and new forms of resistance to the Court deserve further and more systematic investigation. It is therefore important to systematically analyse the Court’s main challenges and shed light on the recent issues that it has faced.

This article draws on empirical, analytical, and descriptive methods. The first substantial part of this study provides an analytical framework for resistance. It defines and divides resistance into two forms, ‘pushback’ and ‘backlash’. It is argued that while pushback is an ordinary form of resistance directed against the overall development of an international court, the latter can be understood as an extraordinary form of resistance that undermines the fundamental authority of a court. In line with this analytical framework, Section 3 of the article outlines different forms of resistance to the African Court and evaluates their causes and consequences. The last section of the article provides concluding remarks and raises the question of available actions that can be undertaken in response to challenges resulting from the resistance the Court has been facing.

2. RESISTANCE AND ITS ANALYTICAL FRAMEWORK

Until recently, challenges and issues facing international courts were usually analysed from a legal perspective, focusing primarily on the execution and implementation of decisions of international courts. This study takes a different approach by expanding the analytical framework to a sociological perspective when defining and analysing the notion of resistance in general and against the African Court in particular. Therefore, the concept of resistance used in this article is understood as including notions beyond a purely legal field. ⁶ It is not confined to the execution of decisions of international courts but includes actions such as withdrawing from an international court or the non-ratification of its founding instruments. This perspective allows us to examine different forms of resistance that might not necessarily be purely legal. However, it may still have profound implications for the authority and operation of the court. ⁷

Scholars have generally used the term ‘backlash’ to describe resistance action against international courts and tribunals. There is a good deal of consistency in how this term has been employed and developed in the relevant literature. ⁸ A backlash is understood to be an action instigated by governments with the objective of curbing or reversing the authority of an international court. ⁹

Despite this consistency, some scholars have made more systematic attempts to operationalise the concept of resistance and apply it to the study of international courts. For instance, Madsen, Cebulak, and Wiebusch defined and divided the term ‘resistance’ into two forms: pushback and backlash. ¹⁰ Pushback is understood as a form of ‘ordinary critique’, which is not necessarily detrimental to the authority of an international court. This type of resistance accepts the ‘established rules’ of the system and is often exercised to hinder the general development of an international court and influence the future direction of its case law, and thus its jurisprudence. ¹¹ In contrast, backlash refers to an extraordinary form of action that refuses to accept or comply with the ‘established rules’ of the system. ¹² It seeks to challenge or undermine the authority of an international court in such a way that potentially results in significant institutional reforms or even the collapse of the entire system – something that usually requires the mobilisation and collective action of Member States. ¹³ However, the framework understands backlash as a process that does not necessarily need to be consequential or potentially have a discernible impact, even though some scholars, such as Alter, Gathii, and Helfer, describe backlash as something that leads to a successful or unsuccessful outcome. ¹⁴

The concept of backlash was further elaborated by Voeten, who distinguished between a backlash targeting the general authority of an international court and a backlash applicable to a court’s authority over an individual country. ¹⁵ The extensive pressure applied against the Southern African Development Community (SADC) Tribunal by the Government of Zimbabwe is an example of the first backlash type. However, governments usually do not have the option or possibility to dissolve a court altogether. They instead attempt to extract themselves from the jurisdiction of a court. This second type of backlash is particularly evident in the case of the African Court.

When categorising resistance actions and identifying them as pushback or backlash, due regard must be paid to several important elements, including the context and purpose of the opposing action. However, even then, categorisation is not always an easy undertaking, as shown in the following examples. The resistance of a State in the form of non-compliance with judgments of an international court can be considered an instance of backlash provided that it is systematic and aims to refuse the authority of the system in question. The ruling of the Russian Constitutional Court, holding that the decisions of the European Court of Human Rights (ECtHR) may not be implemented, can amount to a case of pushback or backlash depending on how systematically and frequently it is used in practice. However, non-compliance does not always amount to backlash, especially when a State fails to implement some of the remedies ordered by the court due to particular reasons, ranging from a lack of political will to a lack of institutional and financial capacity. This is particularly evident in cases where a government pays monetary compensation to the applicant but is unwilling or unable to bring changes to the legislation, thus continuing the practice of human rights violations. ¹⁶

Non-membership is another form of resistance against the development of an international court, where States decide not to join the system, or join it partially. When a State decides to join and accept the jurisdiction of an international court, it can exercise resistance by withdrawing from it, either partially or fully. This form of resistance can be considered an instance of backlash, considering that the concerned State undermines the court’s authority by extracting itself from its jurisdiction. Although not very common, examples of this can be found in many jurisdictions. ¹⁷ The African Court is a prominent case, as will be demonstrated in the next section by example of withdrawal decisions of a number of African States

Particularly difficult to categorise as either pushback or backlash are certain actions detrimental to the development of the court, which cannot be qualified as either. The decision of African States to merge the African Court with the African Court of Justice (ACJ) is an example of this. Such actions are mainly the consequence of policies pursued to achieve different aims than targeting the court. ¹⁸ Consequently, they fall outside the scope of resistance.

3. RESISTANCE AGAINST THE AFRICAN COURT

3.1. Early Resistance and Ratification Gap

Resistance against the African Court has been shaped by various factors relating to the socio-political, historical, and institutional contexts in which it operates. In other words, the African Court operates in a continent where there are various governmental systems, ranging from democratic to authoritarian States. ¹⁹ There are many States engaged in alleged widespread human rights violations related to ongoing civil wars, political instability, and humanitarian disasters, among others. ²⁰ Democratic backsliding has become a common phenomenon in many parts of the continent. ²¹ At the same time, the principles of national sovereignty and non-interference are strictly upheld by the States. ²² The different socio-political factors significantly impact the typology and intensity of resistance that the Court has been facing.

Resistance against the African Court goes back to the early years of its establishment. The decades-long movement towards the establishment of the African Court reflects one of the first forms of resistance against it. This mirrors, to some extent, the similar resistance experienced in the American system, where the Inter-American Court of Human Rights (IACtHR) was established almost three decades after the adoption of the American Declaration of Human Rights in 1948. ²³

Over the course of two decades, extensive external pressure was exercised by international human rights NGOs and European States on African nations, pushing them to create a regional human rights system that closely resembled the European model. ²⁴ However, African nations resisted this idea and were unwilling to yield the inviolate principle of sovereignty and non-interference in internal affairs. ²⁵ Instead, they opted to create the African Commission on Human and Peoples’ Rights (Commission or African Commission) following the entry into force of the African Charter on Human and Peoples’ Rights (Charter or African Charter) in 1986. ²⁶ The Commission was set up in such a way as to not significantly encroach upon the principle of sovereignty – a principle that the African States had sought to protect zealously since acquiring independence. ²⁷

The sustained external pressure persuaded African countries to take steps towards creating a human rights court that could alleviate the deficiencies and ineffectiveness of the African Commission. The call to establish a human rights court came from both external and internal actors, including NGOs, and, later, the Commission itself. ²⁸ Nevertheless, the idea of establishing an African court failed to receive support from African governments until September 1995, when a government experts meeting convened in Cape Town, at which a draft protocol was prepared. ²⁹ Upon receiving the comments from the delegates of the States, this initial draft underwent several modifications. Eventually, the final draft was submitted to the Assembly of Heads of State and Government Meeting of the Organisation of the African Unity (OAU) in Ouagadougou, Burkina Faso, in June 1998, where it was formally adopted. However, the Protocol did not enter into force until six years later, in 2004. The initial plan to appoint the judges of the Court did not take place in July 2004, because too few candidates had been nominated. It was not until 2006 that the 11 judges of the Court were finally appointed. ³⁰

A part of the pushback pattern that developed since the early years of the establishment of the Court is the State-centric approach of the Founding Protocol which, by introducing additional requirements, created a barrier for victims of human rights violations to access the Court, especially by not enabling the individuals to submit a case to the Court directly. ³¹

Although the travaux préparatoires of the Protocol do not explicitly reveal why States decided to limit the jurisdiction of the Court in the individual communication, it is clear, from a broader context, that States sought to maintain the status quo. This was done by designing the Court in a way that it would not be able to fundamentally encroach upon the principle of sovereignty and non-interference in internal affairs. This follows from a number of comments made by the States when preparing the draft protocol, ³² which mostly centred on the primary role that the Commission should play in protecting human rights – a mandate which it largely failed to fulfil on the ground.

In addition, the jurisdictional limits of the African Court must also be understood in light of the socio-political environment dominating the African continent at the time when many African States had a recent, vivid experience of colonisation. They were thus unwilling to compromise on their sovereignty by allowing a regional court to oversee and interfere in their domestic jurisdiction. The requirement of the additional declaration for the individual petition was somehow seen as a compromise so that the States could at least ratify the Founding Protocol of the African Court.

This pushback stripped the Court of the jurisdiction to consider cases concerning alleged human rights violations from the vast majority of African citizens. As of November 2021, only 31 States have ratified the Founding Protocol. ³³ Most importantly, only nine have ever declared that they are allowing the Court to rule on individual human rights disputes. ³⁴ This tactical manoeuvre undermined the Court’s ability to develop its jurisprudence and fulfil its mandate of ensuring the protection and promotion of human rights across the continent. This issue has been repeatedly raised, to no avail, by the African Court in its annual activity reports. ³⁵

3.2. Non-Compliance

Non-compliance with judgments is a common and increasing form of resistance facing many international courts and tribunals. As discussed earlier, non-compliance, when proved to be systemic, can be considered an instance of backlash. In the case of the African Court, however, it is not yet possible to establish whether the Court is facing a problem of ‘systemic non-compliance’. As of November 2021, the African Court has received a total of 325 cases concerning contentious matters from individuals, NGOs and the Commission. ³⁶ It has rendered judgments in 141 cases, but only in 63 cases has it delivered judgments on merits. ³⁷ In 50 cases, it found respondent States to be in violation of a provision of the African Charter and other international human rights treaties and documents. ³⁸ In conformity with Article 27 of the Founding Protocol, it gave orders on how these States should remedy the violations. ³⁹ It has also issued 73 interim measures, aimed at protecting applicants from irreparable harms. ⁴⁰ The Court has also given advisory opinions in 15 cases that were submitted to it. ⁴¹

However, in the vast majority of cases, it is not possible to determine the extent to which the respondent States have executed the judgments of the Court. In its 2020 Activity Report, the Court broadly summarised the status of State compliance with some of its merit judgments. In 23 of the 28 cases in which the time limit to submit a report to the Court had elapsed, the respondent States have failed to submit a report to the Court on the measures taken to implement its judgments. ⁴² It is unclear whether a State that has not communicated to the Court the measures it has taken to implement the judgments has complied or not. The level of State compliance with the judgments of the African Court, therefore, remains ambiguous – the Court does not specify what it exactly it when noting that a country has complied ‘fully’ or ‘partially’ with its judgments.

In the Activity Report, the African Court stated that, with the exception of Burkina Faso, which has fully complied with its orders, the other Member Parties have either partially complied (in the case of Tanzania) or not complied at all with its judgments. ⁴³ These terminologies provide only a general and broad understanding of States’ compliance with the Court’s judgments, and as a result, it is not possible to label the non-compliance of States with the judgments of the African Court as systemic.

Nevertheless, the overall lack of compliance with the decisions of the African Court is undeniable and constitutes a form of pushback that challenges its development and authority. This sends a message to the African citizens that this judicial body cannot fulfil the purpose for which it was established – holding the violators of human rights accountable. As a result, the Court cannot be perceived as a legitimate and effective judicial human rights body in Africa. Non-compliance erodes the legitimacy of the African Court and may even influence the way that it renders subsequent rulings. ⁴⁴

3.3. The Withdrawal Backlash: The Domestic Socio-Political Dimension

Withdrawals are among the strongest forms of resistance facing the authority of international courts. ⁴⁵ In the case of international courts, withdrawals are considered to be a relatively rare phenomenon, and having three withdrawals of Article 34 (6) declarations in the scope of six months should be seen as a major crisis – both jurisdictional and existential in nature – for the African Court. This has a wide range of impacts on its operation, effectiveness and legitimacy.

While the Founding Protocol does not contain any provision that regulates the conditions for the withdrawal request of States from the additional declaration under Article 34 (6), all four States that withdrew their declaration have given some reasons to justify their decisions. The following analysis highlights that all four cases – the withdrawal decisions by Rwanda, Tanzania, Benin, and Côte d’Ivoire – had remote or proxy grounds in the Court’s rulings pertaining to the existence of important socio-political issues in the national sphere of the States conscerned.

3.3.1. Rwanda

Rwanda Became a State Party to the Founding Protocol of the African Court in May 2003. It accepted the Court’s jurisdiction to receive applications from individuals and NGOs in 2013. ⁴⁶ Shortly thereafter, an opposition leader, Victoire Ingabire, who was sentenced to 15 years imprisonment for crimes including spreading genocidal ideology and terrorism-related issues, petitioned the Court on the grounds that Rwanda had violated her human rights and fundamental freedoms. ⁴⁷

Soon after the case was scheduled for hearing by the Court in March 2016, the Government of Rwanda requested to withdraw its declaration under Article 34 (6) of the Founding Protocol. The explanation provided by the Rwandan Minister of Justice as to why they sought to withdraw from the Court clearly pertains to the domestic political situation. The Justice Minister argued that the right of individuals to directly file cases before the African Court was ‘being exploited and used contrary to the intention behind its making’ by giving the perpetrators of genocide a platform to promote their agenda and interests. ⁴⁸

It is apparent that the language used in Rwanda’s statement reveals an attack on the independence and legitimacy of the African Court. The fact that a genocide fugitive may directly file a petition cannot in itself give grounds to question the independence and impartiality of the Court. The power and authority of a judicial institution is regulated by its statutes and rules. Neither the Court’s Founding Protocol nor its Rules contain any provision limiting jurisdiction or admissibility on the basis that the petitioner had purportedly been involved in inciting genocide. ⁴⁹

There is speculation that Rwanda’s withdrawal decision stemmed not from the individual facts of that case, but was rather related to the state of socio-political governance in Rwanda at the time, which the government sought to prevent the Court from revealing. ⁵⁰ This is further explained by the high number of cases against Rwanda in a relatively short period of time, all submitted by the government's political opponents and dealing with sensitive political questions. ⁵¹

Nevertheless, the Court formally responded to the withdrawal request of Rwanda in its ruling on the jurisdiction of 3 June 2016 in the Ingabire case. The Court recognised the validity of the withdrawal request from the additional declaration. It held that the withdrawal would have a notice period of one year following the withdrawal deposit with the African Union (AU), and had no effect on pending cases. ⁵²

3.3.2. Tanzania

Following Rwanda’s withdrawal from the special declaration, some positive developments emerged, as several States decided to deposit their instruments of declaration under Article 34 (6) of the Founding Protocol. Benin submitted its declaration around the time when Rwanda withdrew from the special declaration. ⁵³ Tunisia and Gambia submitted their declarations in 2017 and 2018 respectively. ⁵⁴ This was of great importance as the Court could enhance its legitimacy and authority by having the possibility to exercise jurisdiction over more States and increase its caseload, thus developing its jurisprudence. However, this positive development was not a harbinger of events that followed. In December 2019, Tanzania, the host State of the African Court, announced that it would no longer allow its citizens and NGOs to submit cases to the Court directly. Tanzania had ratified the Founding Protocol in 2006 and made a declaration under Article 34 (6) in 2010. ⁵⁵

Beyond the official withdrawal notice, the Government of Tanzania did not provide any additional explanation to justify its decision, save for a general statement that Article 34 (6) of the Protocol was incompatible with its constitution. ⁵⁶ However, based on the timing of its announcement, commentators have posited that the withdrawal may have been prompted by the Court’s decision in the case of Ally Rajabu and Others v United Republic of Tanzania, which adjudicated on a matter concerning the mandatory death sentence for murder convictions in Tanzania. ⁵⁷

Tanzania’s withdrawal can also be linked to its position of being the respondent State in the vast majority of the Court’s cases, ⁵⁸ giving rise to the perception among critics of the Court that it was being unjustly ‘targeted’.

Additionally, the rise of populism in Tanzania and democratic backsliding in the country further contributed to the withdrawal backlash. ⁵⁹ Since the change of regime in Tanzania in 2015, there has been an erosion of freedoms and a crackdown on human rights defenders, media, and opposition parties. ⁶⁰ Authorities have stepped up their censorship through banning and suspending major newspapers from releasing critical content. ⁶¹ The change of government in Tanzania and its subsequent crackdown on human rights defenders and media explain its decision to restrict the jurisdiction of the Court in individual communications.

3.3.3. Benin

Benin Accepted the Court’s jurisdiction to receive applications from individuals and NGOs in February 2016. The Government announced its decision to limit the jurisdiction of the Court in individual petitions in March 2020 following a series of orders against it, ⁶² which evoked a severe response from the authorities.

In its notice of withdrawal to the African Court on 24 March 2020, the Benin Government stated that its decision to withdraw the additional declaration stemmed from the Court’s excessive interference in matters that go beyond its competence, causing serious disturbance to the municipal legal order and the economic attractiveness of Member States. ⁶³ It specifically referred to the Kodeih case in which the Court ordered Benin to suspend the execution of a domestic order on the seizure of property to recover a bank debt in a commercial dispute between private persons. ⁶⁴

In addition, the government spokesman provided a statement justifying the withdrawal decision by arguing that the withdrawal was a consequence of observable ‘dysfunctions and slippages in the High Court’. ⁶⁵ It criticised the Court’s decisions over the past several years for ‘serious incongruities’, and noted how these also led Tanzania and Rwanda to withdraw their additional declarations. ⁶⁶

In fact, Benin's notice of withdrawal and subsequent statements from the authorities suggests that the Kodeih case was not the only reason for the Government to withdraw its declaration. Another case that prompted the government to abandon its additional declaration was the case of Sébastien Germain Marie Aïkoue AJAVON v Republic of Benin, in which the African Court ordered the government to postpone a communal election until it delivered a merit judgment on the petition submitted by Sebastien Ajavon, an exiled political leader who had been sentenced to 20 years of imprisonment for drug trafficking. In response to this order, the Minister and government spokesperson argued that the withdrawal was necessary ‘in order not to jeopardise the interests of an entire nation and the duty of a government which is responsible for holding elections on time’. ⁶⁷

While it is clear that the Government invoked the Kodeih and Ajavon cases to justify its withdrawal, the real reason for this decision may relate to some deeper socio-political problems existing in the country. Between November 2018 and April 2020, Benin was subject to eight unfavourable decisions of the African Court, most of which involved the Government’s political opponents. ⁶⁸

As such, Benin’s decision to extract itself from the Court’s jurisdiction can be seen as a strategy by the authorities to increase impunity and block human rights scrutiny by an independent judicial body. In support of this assumption, we can refer to the decision of the Constitutional Court of Benin, dated 30 April 2020, holding that the provisions of the Supplementary Protocol of the Economic Community of West African States (ECOWAS) Court of Justice are not enforceable against Benin, and any act resulting from its implementation is void. ⁶⁹ In practical terms, this implies the withdrawal of Benin from the jurisdiction of the ECOWAS Court of Justice, something which is not provided by the applicable statutes.

3.3.4. Côte d’ivoire

The Government of Côte d’Ivoire became the latest State to withdraw its declarations under Article 34 (6) of the Founding Protocol, thus leaving only six States that allow individuals and NGOs to submit cases to the Court directly. It accepted the Court’s jurisdiction to receive complaints brought by individuals and NGOs in June 2013. ⁷⁰

Despite the fact that Côte d’Ivoire did not appear to have a turbulent relationship with the African Court prior to withdrawing its declaration in April 2020, ⁷¹ the statements provided by the authorities suggest that the Ivorian Government withdrew from the special declaration on political grounds. In fact, there is little doubt that the withdrawal decision was prompted by the Court’s order in the case of Guillaume Kigbafori Soro and Others v Côte d’Ivoire, which ordered the Ivorian Government to suspend its arrest warrant for Guillaume Kigbafori Soro and to release 19 members of his political party on bail. ⁷²

The Court’s order was met with fervent contempt by the Government of Côte d’Ivoire. It justified the withdrawal by accusing the African Court of making ‘political decisions’, which constitutes an encroachment on its sovereignty and undermines its legal order and the rule of law in the country through the advent of genuine legal insecurity. ⁷³ The Ivorian Minister of Communication further accused the Court of being incapable of fulfilling its role and stated that the decision to withdraw from the special declaration is a consequence of ‘intolerable actions that the African Court has allowed itself in its actions’. ⁷⁴

As a result, the Ivorian Government refused to comply with the provisional order of the African Court and Mr. Soro was subsequently sentenced in absentia to 20 years of imprisonment and 5 years of deprivation of civil and political rights, making him ineligible to run in the subsequent presidential election in October 2020. ⁷⁵

As is clear from the above, the factors leading to the withdrawal of States share common themes that primarily rest on the domestic socio-political dimension. Save for Tanzania, which justified its withdrawal by pointing out the incompatibility of Article 34 (6) with its constitution, other States have been more unified in their rhetoric of resistance, pointing to the principles of non-interference and sovereignty to justify their withdrawal backlash.

Apart from this, another theory that can explain these instances of backlash is the two-tier structure of the African Court which has placed it in a vulnerable position, by which States can withdraw from the Court without fearing significant political and reputational costs. In other words, the unique nature of the Court allows States to have full or partial access to it, and as such, Member States can partially withdraw from the Court and achieve their aim to marginalise it while shielding themselves from being held accountable for human rights violations without significant costs. Taking the European system as an example can shed light on this assumption. Access to the ECtHR is only possible when States are either members of the Council of Europe or the European Union (EU) and have ratified the European Convention on Human Rights (ECHR). In the case of withdrawal from the ECHR, States will lose their membership in the Council of Europe and potentially the EU, where applicable. ⁷⁶ In light of its costs and consequences, dissatisfied Member States are less inclined to withdraw from the ECHR. Therefore, it would seem rational for Rwanda, Tanzania, Benin, and Côte d’Ivoire to extract themselves from the Court’s jurisdiction without leaving the system altogether and yet reaching their objectives without any significant political and legal implications.

3.4. Implications of Withdrawal from Article 34 (6)

A State’s decision to withdraw from an international court stems from its refusal to be bound to the ‘established rules’ of the system in question, which is an instance of backlash. Even if not all cases of withdrawal will significantly undermine the operation of an international court or organisation, ⁷⁷ in some cases they can be cataclysmic. This assumption holds particularly true in systems that are too small or too dependent on particular Member States. This is evident with regard to the African Court, for which only a few States have accepted its jurisdiction in cases of individual communication. This is of critical significance because the Court’s docket largely depends on the cases submitted by citizens of those States orchestrating the backlash, especially its host State Tanzania. While Tanzania accounts for 52 of the Court’s 116 finalised cases, and 104 of its 208 pending cases, Rwanda, Benin and Côte d’Ivoire account for 14, 8, and 3 of the finalised cases and 1, 35, and 32 of pending cases, respectively. ⁷⁸ Depriving the Court of this number of cases will therefore undermine the endeavours of the Court at large by significantly reducing its caseload and thus hindering its ability to develop its jurisprudence. The right of petition by individuals is the lifeblood of the African Court’s effective operations and can help strengthen its authority and expand its jurisprudence.

Furthermore, the withdrawal decision of these States is a significant blow to the Court’s authority and legitimacy, as it will be unable to hold the governments accountable for committing human rights violations. The cases analysed above illustrate a disturbing pattern of resistance and increasing impunity, at the beginning and the end of which is the practical impossibility for citizens of these countries to seek redress for human rights violations from the African Court.

While there remains a possibility for individuals and NGOs to seek remedies from the Court by submitting a case to the Commission, practice reveals that this route is challenging and underutilised. So far, the Commission has only referred three cases to the Court. ⁷⁹ Seeking a remedy from the African Court is virtually impossible without the activation of Article 34 (6) of the Protocol. It can also be said that there might be other alternatives available at the national or regional levels where individuals and NGOs can seek remedies for alleged human rights violations, thereby alleviating the need and advantage of bringing a case to the African Court. However, this claim is poorly supported because the African Court acts as the court of the last resort. It affords judicial remedies to African citizens only after all available domestic remedies have already been exhausted and another international court has not previously settled on the same matter. ⁸⁰

In addition, depriving citizens of access to an independent judicial body in a continent where most countries are routinely accused of having poor domestic track records of human rights protection and judicial independence is questionable. ⁸¹ It highlights the important role that the African Court could play to fill this gap by providing remedies to victims. Lastly, it is through individual petition mechanisms that human rights are given concrete meaning. In the adjudication of individual petitions, human rights norms that may otherwise seem general and abstract are put into practical effects. In the absence of an individual complaint mechanism, the human rights norms will remain illusory, and the Court will be like a toothless tiger, unable to complete the mission for which it was founded.

3.5. Transition of the Court: Fortifying the Problem of Resistance

In 2008, the AU took the decision to merge the African Court with the ACJ and establish a new court, the African Court of Justice and Human Rights (ACJHR). In 2014, it adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ‘Malabo Protocol’), which extended the ACJHR jurisdiction over international crimes. Once its statute enters into force, the ACJHR will possess the ability to investigate 14 different international, transnational, and other crimes in a tribunal with three different chambers and jurisdictions: ⁸²

the General Affairs Section;

the Human and Peoples’ Rights Section; and

the International Criminal Law Section.

Thus, once the 15 States ratify the Statute of the ACJHR, the African Court’s current role will be superseded by the human rights section of this new court. ⁸³

In fact, the merger of the African Court with the ACJ should be understood in terms of its political and legal history pertaining to the initial desire of African countries dating back to the 1980s. ⁸⁴ With this in mind, the expansion of its jurisdiction to cover international crimes better reflects African governments’ resistance to the International Criminal Court. ⁸⁵ Therefore, it is apparent that the creation of the ACJHR does not reflect any form of resistance against the African Court.

However, the creation of the ACJHR and the expansion of its jurisdiction to cover international crimes will enhance the problem of resistance against the human rights section of this new court. First, despite the fact that the preamble of the Malabo Protocol acknowledges the ‘steady growth’ of the African Court and its contribution to the protection of human rights in Africa, ⁸⁶ it does not provide for the transfer of the judges and the registrar of the African Court to the ACJHR. The Malabo Protocol establishes that the current judges and the registrar of the African Court will only remain in office until the Protocol enters into force, and the new judges and registrar of the ACJHR are appointed and sworn in. ⁸⁷ It further provides that the staff of the African Court will be transferred into the registry of the ACJHR only for the remaining period of their existing employment agreements. ⁸⁸ This runs the risk of losing the existing legacy and development of the African Court. It erodes the experience and expertise cultivated by previous judges and thus does not allow for continuity. It will take a long time for the new court to establish its jurisprudence and make itself known to African citizens.

Second, upon the entry into force of the Malabo Protocol and the abolishment of the African Court, those States which would have considered joining the African Court may reconsider their decision to join a new court that exercises jurisdiction over international crimes. ⁸⁹ This concern was evident during the Meeting of Ministers of Justice and Attorneys General in 2012, where State delegations sought to create a mechanism by which to allow States to pick which sections of the ACJHR to accept when ratifying the Malabo Protocol. ⁹⁰ This proposal was rejected on the grounds that it could lead to ‘many technical and practical difficulties based on the proposed number and deployment of judges within the court’. ⁹¹ The Malabo Protocol leaves States with ‘an all-or-nothing option’, and as such, States might be discouraged from becoming a party to a court that enjoys jurisdiction over international crimes and human rights simultaneously. In light of these, while it is true that the decision of the AU to merge the African Court with the ACJ does not constitute a form of resistance against the Court, the issue of resistance will be much more problematic when the ACJHPR becomes operational.

4. CONCLUSION

This article provided an analysis of instances of pushbacks and backlashes against the African Court, reflecting the varying nature and consequences of such actions. It has shown that the resistance of African States has a wide range of ramifications on the authority, legitimacy, and development of the African Court. While it is evident that the ratification gaps, existing both in the Founding Protocol as well as in Article 34 (6) of the Protocol, have made the Court unable to protect the vast majority of African citizens from alleged human rights violations, the lack of compliance with its judgments raises the question of whether the Court is genuinely able to make a difference for those individuals who are able to submit petitions. Importantly, the pattern of withdrawal from the special declaration initiated by the Government of Rwanda and continued by the States of Tanzania, Benin, and Côte d’Ivoire signals an alarming backlash against the authority and legitimacy of the African Court. It can be argued that while most African States are still reluctant to accept the jurisdiction of the African Court in petitions submitted by individuals and NGOs, such a continuous pattern of withdrawal sets a path for the other remaining States to follow. This would then put an end to the mission for which the Court was founded – the protection and promotion of human rights across the continent.

Moreover, certain Court-related developments, which do not constitute resistance per se, are likely to fortify the problem of resistance. This is apparent from the implications of merging the African Court and the ACJ into a single court. Given the lack of sufficient political and economic support, the creation of the ACJHR and the expansion of its jurisdiction to cover international crimes will reduce the efficiency and effectiveness of the human rights section of the new court.

Research has further shown that implications of findings on backlashes and pushbacks against the African Court raise the additional question of how the Court can countervail the increasing resistance trend.

With regard to withdrawals, as one of the prominent examples of backlash, the Court should take a different approach to the withdrawal requests of States from its additional declaration. Most of the States decided to withdraw their declarations in the aftermath of the Court’s adverse ruling on a single case. Considering that the Founding Protocol is silent on the issue of denunciation, the additional declaration pursuant to Article 34 (6) emanates from the Protocol and is thereby subject to the law of treaties. Thus, for denunciation or termination, Article 54 and 56 of the Vienna Convention on the Law of Treaties should be applied strictly. ⁹² The decision of States to limit the Court’s jurisdiction in cases of individual communications goes against the principle of pacta sunt servanda, which requires State Parties to a treaty to perform their obligations in ‘good faith’. ⁹³ In withdrawing their additional declaration in the face of an unfavourable decision, several States have shown that they have not approached the judicial process in a spirit of good faith. Such action fundamentally undermines the capacity and integrity of the Court to uphold human rights within its jurisdiction.

Nevertheless, to address the resistance of States in the form of the ratification gap, the Court should continue to establish constructive dialogue with the heads of governments to convince them to ratify its Founding Protocol and accept its jurisdiction in individual communications. ⁹⁴ It is vital for the Court to look at the experiences of other African sub-regional courts. An example is the mobilisation of civil society and NGOs, which succeeded in overcoming the Gambian initiative to narrow the human rights jurisdiction of the ECOWAS court and limit its competence in individual communications. ⁹⁵ The African Court can learn from this, and strive to mobilise civil society groups and attorneys to put pressure on States to reconsider their decisions of withdrawal from Article 34 (6) of the Founding Protocol. The mobilisation of civil society groups and NGOs is a vital tool for the Court to persuade States to accept its jurisdiction in adjudicating individual communications. This will also enable the Court to put pressure on States to enforce its judgments.

Beyond that, it is certainly necessary for the Court to establish a follow-up mechanism system by which it can better monitor the implementation of its judgments. ⁹⁶ In this respect, it will again be fruitful for the Court to consider the initiatives taken by other regional human rights courts. To illustrate this, according to the rules of procedure, the IACtHR is able to follow up on its own judgments through, for example, holding implementation hearings where parties concerned are allowed to submit a report specifying measures taken to give effect to the Court’s decision. The victims will also have the opportunity to express their opinion on whether they are satisfied with the steps taken by their respective governments to implement the judgments. ⁹⁷ Whether the African Court will be able to overcome the resistance to effectively redress human rights violations remains to be seen. However, at this juncture, it appears doubtful.