JURISDICTIONAL RESTRAINT: RESCUING THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS

The African Court on Human and Peoples’ Rights, the continental human rights court in Africa, is struggling. Many African states have yet to ratify the protocol that established the Court; and those that have, have begun to withdraw their declarations to allow individuals and nongovernmental organizations (NGOs) to bring cases against them before the Court. The Court’s expanding jurisdiction is part of the problem. Despite being an international court, the Court seems to operate as an appellate domestic court—overturning domestic courts’ decisions and nullifying enacted state laws. This Note argues that lasting human rights protection in Africa requires an African court of a more defined jurisdiction. In doing so, this Note unpacks two schools of thought—opportunity structure theory and neoliberalism—which endorse the expansion of the Court’s jurisdiction and highlights the deficiencies in their arguments. Importantly, this Note questions the overreliance on legal means as solutions to the African human rights crises and provides alternative means of assessing and addressing the crises.

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*J.D. Candidate 2025, Columbia Law School. I thank my colleagues at the Institute for Human Rights and Development in Africa (IHRDA), whose work and insights inspire this Note; Professor Lori F. Damrosch for her supervision and feedback; and the staff of the Columbia Law Review for their excellent editorial assistance. This Note is dedicated to Mariame Camara, whose resilience and sense of purpose remain a source of hope.

Introduction

The African Court on Human and Peoples’ Rights (“African Court” or “Court”) has been expanding its de jure jurisdiction, which limits its role as a subsidiary to the national courts, 1 Generally, international courts are considered subsidiaries to national courts. See infra text accompanying notes 22–23. In Prince v. South Africa, the African Commission stated that “the margin of appreciation doctrine informs the African Charter.” No. 255/02, Judgment, Afr. Comm’n H.P.R., ¶ 50–51 (Dec. 7, 2004), https://achpr.au.int/en/decisions-communications/garreth-anver-prince-south-africa-25502 (on file with the Columbia Law Review). The concept of margin of appreciation, a corollary of subsidiarity, seeks to give states primacy on executing human rights norms within their borders. Id. ¶ 37. to effectively become the de facto appellate court to domestic courts within African states. 2 Sègnonna Horace Adjolohoun, Jurisdictional Fiction? A Dialectical Scrutiny of the Appellate Competence of the African Court on Human and Peoples’ Rights, 6 J. Compar. L. Afr., no. 2, 2019, at 1, 6 [hereinafter Adjolohoun, Jurisdictional Fiction] (“[W]hile it is not granted appellate jurisdiction de jure or by statute, the African Court assumes such competence de facto albeit on a normative basis.”). The African Court reverses domestic courts’ decisions and nullifies national legislations. 3 See infra section I.A. This is extraordinary for an international court, subverting the principles of subsidiarity 4 See Principle of Subsidiarity, EUR-Lex, https://eur-lex.europa.eu/EN/legal-content/glossary/principle-of-subsidiarity.html [https://perma.cc/GGH2-LWMA] (last visited Dec. 25, 2023) (“[Subsidiarity] aims to ensure that decisions are taken at the closest possible level to the citizen . . . .”). The idea is expressed in Article 56(5) of the African Charter on Human and Peoples’ Rights, which requires that a plaintiff “exhaust[] local remedies” before taking their complaint to international courts. See African Charter on Human and Peoples’ Rights art. 56, ¶ 5, opened for signature June 27, 1981, 21 I.L.M. 58, 66 (entered into force Oct. 21, 1986) [hereinafter, Banjul Charter]. and margin of appreciation. 5 See Prince, No. 255/02, Afr. Comm’n H.P.R., ¶ 37 (defining “margin of appreciation” as “a discretion that a state’s authority is allowed in the implementation and application of domestic human rights norms and standards”). The ramifications of the Court’s modus operandi threaten its own existence and the welfare of the developing human rights system in Africa. 6 See infra note 320 and accompanying text.

The adverse consequences are already evident. In 2020, Côte d’Ivoire and Benin joined Rwanda and Tanzania in withdrawing their declarations under Article 34(6) (“Optional Declaration”) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (“Protocol on the African Court”), 7 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, art. 34(6), Assembly of Heads of State and Government, Thirty-Fourth Ordinary Session (June 10, 1998), https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-establishment-african-court-human-and [https://perma.cc/5VJM-3JJU] [hereinafter Protocol on the African Court] (“[T]he State shall make a declaration accepting the competence of the Court to receive cases under article 5(3) of this Protocol.”); Rep. of the Afr. Ct. H.P.R., at 2, EX.CL/1323(XL) (2022) [hereinafter 2021 Report] (listing Benin, Côte d’Ivoire, Rwanda, and Tanzania as the four withdrawing states). which grants individuals and NGOs direct access to the Court to sue African states that have ratified the African Charter on Human and Peoples’ Rights (“Banjul Charter”). 8 See Banjul Charter, supra note 4. The withdrawing states cited the Court’s jurisdictional expansion as the reason for their withdrawal. 9 See infra notes 37–43 and accompanying text.

In general, the Court is experiencing a decline in its reputation on the continent. 10 The Court’s 2022 activity report shows that African states have complied with less than ten percent of its decisions. Rep. of the Afr. Ct. H.P.R., at 24, EX.CL/1409(XLII) (2023) [hereinafter 2022 Report]. African states are either ignoring its judgments 11 Id. annex 2, at 4 (showing that Tanzania refused to comply with the Court’s order because “[t]he order seeks to overturn the decision of the Court of Appeal of Tanzania”). or, increasingly, challenging its competence. 12 Out of the thirty-three African states that have ratified the Protocol on the African Court, twelve deposited their declarations under Article 34(6). See Declarations, Afr. Ct. on Hum. & Peoples’ Rts., https://www.african-court.org/wpafc/declarations/ [https://perma.cc/KUR5-HDBG] (last visited Dec. 25, 2023). Out of the twelve, four (Benin, Côte d’Ivoire, Rwanda, and Tanzania) withdrew their declarations between 2016 and 2020. See id. This state of disrepute is concerning for the Court’s future. To use Alexander Hamilton’s remark about the American judiciary long ago, the Court has neither the purse nor the sword to make African states abide by its decisions. 13 The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961). The African Court is an international court, by virtue that it was established through “an international convention adopted by 54 Members States of the African Union, which itself is an international and intergovernmental organisation.” See Adjolohoun, Jurisdictional Fiction, supra note 2, at 7. The African Court, therefore, does not belong to the internal apparatus of any single African State. Nevertheless, two conceptual frameworks have been offered to justify the Court’s behavior. The first follows the neoliberal, globalist outlook. 14 See infra section II.A. According to this view, an African court of an expansive jurisdiction helps to harmonize the distinct domestic laws within African states, widening the private sector, to facilitate Africans’ participation in the global market. 15 See Christopher Hartmann, Postneoliberal Public Health Care Reforms: Neoliberalism, Social Medicine, and Persistent Health Inequalities in Latin America, 106 Am. J. Pub. Health 2145, 2145 (2016) (“Neoliberalism typically refers to minimal government intervention, laissez-faire market policies, and individualism over collectivism and has been adopted by—and pressed upon—the majority of national governments and global development institutions.” (footnote omitted)). In an increasingly globalized world, according to the neoliberals, market forces, not states, should dictate people’s lives. 16 See Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism 1 (2018) (noting that by the end of the twentieth century, neoliberalists saw market forces and “the global economy” as main drivers of the international order); Kathomi Gatwiri, Julians Amboko & Darius Okolla, The Implications of Neoliberalism on African Economies, Health Outcomes and Wellbeing: A Conceptual Argument, 18 Soc. Theory & Health 86, 90 (2020) (“[N]eoliberal ideology adopts the language of freedom and choice, increased foreign investments, and open markets and trade to progress policies that lead to privatisation of basic needs . . . .”). The second view—the opportunity structure theory—justifies the expansion on the grounds that the Court’s checks on the powers of African states positively contribute to the prodemocratic movements on the continent. 17 See infra section II.C. Under this framework, the Court is portrayed as a “fulcrum” of social and political mobilization 18 See James Thuo Gathii & Jacquelene Wangui Mwangi, The African Court of Human and Peoples’ Rights as an Opportunity Structure, in The Performance of Africa’s International Courts 211, 213 (James Thuo Gathii ed. 2020) (“[T]he African Court becomes a fulcrum through which grassroots movements and individuals can collectively mobilize, organize, promote, and advance their causes.”); Olabisi D. Akinkugbe, Houngue Éric Noudehouenou v. Republic of Benin, 115 Am. J. Int’l L. 281, 285 (2021) (discussing how “opposition politicians” are mobilizing the African Court against their governments). —its broad jurisdiction increasingly clashing against the sovereignties of African states.

This Note argues that neither of these views are advisable. As the remaining eight states signed to the Optional Declaration threaten to withdraw their declarations, 19 See 2022 Report, supra note 10, ¶ 7 tbl.2 (showing the remaining countries under the Optional Declaration: Burkina Faso, Gambia, Ghana, Guinea-Bissau, Malawi, Mali, Niger, and Tunisia). The 2021 Report noted that “States against which the Court has rendered a judgment . . . threaten to withdraw their Article 34(6) Declaration.” See 2021 Report, supra note 7, at 20. and twenty-two others refuse to ratify the Protocol on the African Court, 20 See 2022 Report, supra note 10, at 25 (“Twenty-two (22) [African Union] Member States are yet to ratify the Protocol . . . .”). the Court should resort to a more defined jurisdiction, refraining from political questions not entailed therein. It should be a consensus builder, not the impetus for African states to abandon the progress that has been made in the realm of human rights in Africa, leading to the Court’s own demise. 21 See infra note 320 and accompanying text. This Note thus contributes to the literature on the African human rights system by exposing the deficiencies in the arguments for the Court’s jurisdictional expansion and proposing a path forward to preserve the Court amidst its current precarious position on the continent.

Part I provides an overview of the historical and normative underpinnings of the Court’s current position. Part II describes the motivations and the processes that led to the Court’s creation, against the backdrop of colonialism and the Cold War. Part III offers some solutions for the future of the Court and the African human rights system, suggesting a broader approach to rights protections that contemplates national legal fora and customary procedures.