The African Court on Human and Peoples’ rights and its case law: towards a Supreme Court for Africa?

1. Introduction

The African Court on Human and Peoples’ rights’ (hereinafter ‘the Court’) was established in 1998 with the aim to complement the protective mandate of the African Commission on Human and Peoples’ Rights (hereinafter ‘the Commission’).^[1] The Court’s jurisdiction ratione materiae covers the interpretation and application of the African Charter on Human and Peoples’ Rights (hereinafter, ‘the Charter’), as well as that of its Protocols and of any other relevant Human Rights instrument ratified by the States concerned. [2] According to article 34 (6) of the 1998 Protocol, the Court can receive cases brought by individuals or NGOs having acquired the observing status before the Commission, but only if the interested states make a declaration accepting its competence. To date, seven African Union States allow individuals and NGOs to petition the Court directly, namely: Burkina Faso, Ghana, Malawi, Mali, Rwanda, Tanzania and Republic of Côte d’Ivoire.

Probably because of this relatively small number of states, so far, the protection of human rights has been largely performed by the Commission through its system of communications. The Court, for its part, has mainly decided on jurisdictional matters, concluding to have no competence because the complaints were brought by NGOs or citizens of states which had not made a declaration based on article 34. ^[3] Nevertheless, over the last years the Court has started developing its own jurisprudence and acting as if it had powers similar to those which, in a great number of national legal systems, pertain to Supreme courts. For instance, the Court has assessed the ‘constitutionality’ of national legislations and state Constitutions, by using the Charter as a parameter. Moreover, the Court has taken advantage of the generic wording of the 1998 Protocol to develop its powers with regard to reparations. In particular, article 27 of the Protocol provides that ‘if the Court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation’. This broad formulation has already led the Court to order states to amend their legislation, or resume the investigation of a criminal case. In the near future, it might also bring the Court to pronounce itself on the legal findings of a national Supreme Court. The present post focuses on the Court’s most recent case law and concludes that the Court could play a leading role in promoting the international rule of law, by granting a uniform application of the international law of human rights in Africa.

2. The Court’s case law

In the consolidated case of Tanganyika Law Society and The Legal and Human Rights Centre v the United Republic of Tanzania and Reverend Christopher Mtikila v the United Republic of Tanzania, the Court assessed the compatibility with the Charter of certain national constitutional provisions. As the Court has subsequently affirmed in Peter Joseph Chacha v The United Republic of Tanzania, indeed, ‘[a]s long as the rights allegedly violated are protected by the Charter or any other human rights instrument ratified by the State concerned, the Court will have jurisdiction over the matter.’[4] Thus, the Court considers itself competent to assess whether and to what extent national constitutions comply with the African Charter and any other human rights instruments ratified by the state. This is particularly surprising in the light of the trend currently experienced by another regional court of human rights, i.e., the Strasbourg Court, in its dialogue with some ‘nationalistic’ constitutional courts.

In terms of reparations, in Peter Joseph Chacha v The United Republic of Tanzania, the Court has performed some of the functions generally associated with the power of judicial review, which is a prerogative of national constitutional courts.^[5] In particular, it has held that ‘[t]he Respondent [State] is directed to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken.’^[6] More recently, it has gone even further and specifically ordered Burkina Faso how to amend its national legislation. Indeed, in the case of Lohé Issa Konaté v Burkina Faso it required ‘to amend its legislation on defamation by repealing custodial sentences for acts of defamation, and by adapting its legislation to ensure that other sanctions for defamation meet the test of necessity and proportionality.’^[7]

Lastly, in December 2014 the Court has condemned Burkina Faso for violating article 7 of the Charter due to the lack of an effective investigation in relation to the death of Norbert Zongo, a journalist killed in 1998 while investigating the former president’s brother. Following this decision, on 5 June 2015, the Court has ordered Burkina Faso ‘to resume the investigations with a view to finding, charging and trying the perpetrators of the murders of Norbert Zongo and his three companions.’ In similar cases, the Strasbourg Court has never gone so far, considering it sufficient declaring the violation,^[8] awarding the victims with non-pecuniary damage,^[9] or, in case of systemic violations, affirming that is up to the interested State, together with the Committee of Ministers, ‘to identify appropriate general measures to prevent future similar violations.^[10] The Strasbourg Court has never, in fact, ordered states to resume an investigation. Notably, other cases before the African Court might constitute an opportunity for the Court to further develop its powers.

One of the most important cases currently pending before the Court is Ingabire Victoire Umuhoza v The Republic of Rwanda. Due to the political implications which may arise from any Court’s decision, this is also a very sensitive case. The applicant, Ingabire Victoire Umuhoza, is a Rwandan leader of political opposition who has been in prison since 2010, when she run for the Rwandan General Elections. She was accused of having committed a number of serious crimes, including: spreading the ideology of genocide; aiding and abetting terrorism; sectarianism and divisionism; and undermining the internal security of a state, spreading rumours which may incite the population against political authorities and mount the citizens against one another; establishment of an armed branch of a rebel movement; attempted recourse to terrorism, armed force and any form of violence to destabilise established authority and violate constitutional principles. She was then condemned to a 15-year imprisonment by the Supreme Court of Rwanda.

Before the African Court, Ingabire Victoire Umuhoza alleges violations of three human rights instruments, namely: the Universal Declaration of Human Rights (UDHR), the African Charter on Human and Peoples’ Rights, and the International Covenant on Civil and Political Rights (ICCPR). Apart from the substantial aspects, this case might allow the Court to shape and stretch again the limits of its mandate. The applicant asks the Court to order Rwanda to: repeal with retroactive effect the two laws grounding her conviction,^[11] review the case, annul all the decisions that had been taken since the preliminary investigation up till the pronouncement of the last judgment, release her on parole, and pay costs and reparations. The request relating to the review of the case and the annulment of all the decisions issued by any national courts, including the Supreme Court, might have a significant impact on the shaping of the limits of the Court’s mandate. Indeed, it will be on the Court to decide whether or not it would be appropriate to order the annulment of a definitive judgment by the Rwandan Supreme Court. If the Court upholds this pray, it will put itself in a much more advanced position than the other regional courts. As showed above, the Court has already deemed to be competent to ask states to repeal their national legislation. If, in the Ingabire Victoire case, the Court also orders the review of the case and the annulment of all decisions based on the law that the Applicant preys to be repealed, it will exercise new powers similar to those that are often associated with a national Supreme Court. Interestingly, Rwanda has not claimed that the Court lacks the competence in this regard. Rather, it has based its counterclaims on different grounds, somehow taking for granted that the Court would not act ultra vires.

3 Conclusion

Notwithstanding the very small number of decisions issued so far, over the last years, the Court has progressively become a key actor for the protection of fundamental rights in Africa. Taking advantage of the vague wording of article 27 of the Protocol, and with the general acceptance of all States, the Court has developed its competences and enlarged its mandate to the point of assuming functions similar to those often associated with national Supreme Courts. Therefore, thanks to its broad ratione materiae jurisdiction, which extends to all human rights’ instruments ratified by the respondent state, the Court can potentially end up by guaranteeing a uniform application of the international law of human rights in Africa. It remains to be seen whether and to what extent the Court will keep on enlarging its mandate, in spite of the political sensitiveness of certain cases. The Court’s most recent position in the Zongo case gives good reasons to believe that the Court will go on with its activism.

[1] See article 2 of the 1998 Protocol.

[2] Article 3 of the Protocol. See C. Zanghí, La Promozione Internazionale dei Diritti dell’Uomo (2006) 451.

[3] See Michelot Yogogombaye v The Republic of Senegal App. no 001/2008 (ACtHPR, 15 December 2009); Soufiane Ababou v People’s Democratic Republic of Alger App no 002/2011 (ACtHPR, 16 June 2011); Daniel Amare & Mulugeta Amare v Mozambique Airlines & Mozambique App no 005/201 (ACtHPR, 16 June 2011); Association Juristes d’Afrique pour la Bonne Gouvernance v La Côte d’Ivoire App no 006/2011 (ACtHPR, 16 June 2011); Ekollo Moundi Alexandre v Republic of Cameroon and the Federal Republic of Nigeria App no 008/2011 (ACtHPR, 23 September 2011); National Convention of Teachers Trade Union v The Republic of Gabon App no 012/2011 (ACtHPR, 15 December 2011); Delta International Investments v Republic of South Africa App no 002/2012 (ACtHPR, 30 March 2012); Emmanuel Joseph Uko and Others v Republic of South Africa App no 004/2012 (ACtHPR, 30 March 2012); Amir Adam Timan v Republic of the Sudan App no 005/2012 (ACtHPR, 30 March 2012); Baghdadi Ali Mahmoudi v Republic of Tunisia App no 007/2012 (ACtHPR, 26 June 2012).

[4] Peter Joseph Chacha v The United Republic of Tanzania, Application No. 003/2012 (ACtHPR, 28 March 2014 ) at 114. [5]          R. Rogowsky and T. Gawron, ‪Constitutional Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court (2002) 5-6.

[6] Tanganyika Law Society and The Legal and Human Rights Centre v the United Republic of Tanzania and Application 011/2011 Reverend Christopher Mtikila v the United Republic of Tanzania (Consolidated Applications) Applications No. 009/2011 and 011/2011 (ACtHPR, 14 June 2013) at 126. Similarly, Peter Joseph Chacha v The United Republic of Tanzania Application No 003/2012 (ACtHPR, 28 March 2014) at 82.

[7] Lohé Issa Konaté v Burkina Faso App. No. 004/2013 (ACtHPR, 5 December 2014).

[8]          See ,e.g., Husayn (Abu Zubaydah) v. Poland Application No. 7511/13 (ECtHR, 24 July 2014) at 568.

[9]          See, e.g., Identoba and others v. Georgia Application No. 73235/12(ECtHR, 12 May 2015) at 110.

[10]         See Vasil Hristov v. Bulgaria Application No. 81260/12   (ECtHR, 16 June 2015) at 49.

[11]         Sections 116 and 463 of Organic Law N° 01/2012 of 2 May 2012 relating to the Penal Code, as well as Law N° 84/2013 of 28 October 2013 to the punishment of the crimes of the ideology of the Genocide.