Author: Misha Plagis

This contribution is by Dr. Apollin Koagne Zouapet. He is currently a Judicial Fellow at the International Court of Justice, and holds a Ph.D. from the University of Geneva, and is holder of the Diploma of The Hague Academy of International Law. 

The ECOWAS Court of Justice is one of the eight main institutions of the organization, listed in Article 6 of the ECOWAS Revised Treaty. But it is not the only jurisdictional institution. Article 16 of the Revised Treaty also creates an “Arbitration Tribunal of the Community” whose status, composition and rules of procedure remain to be determined by a Protocol which has not yet been adopted. The Court of Justice is, therefore, the main judicial body of the Community. In addition, the Court, and this is not the case for the Arbitration Tribunal, is listed in Article 6 in the same way as the Assembly of Heads of State and Government, the Council of Ministers or the Executive Council, as it is the only operational judicial body of the Community. Indeed, the establishment of the Court even preceded the adoption of the ECOWAS Revised Treaty. Protocol A/P.l/7/91 on the Community Court of Justice (1991 Protocol) was adopted on 6 July 1991, just over two years before the adoption of the revised Treaty. In addition, the Court officially began its activities in 1991, although its Protocol did not enter into force until 5 November 1996.

This accelerated establishment of the Court was justified by the faith of many African States, probably inspired by the European model, in the role of law in the integration process, as will be discussed in section I. Gradually, however, the ECOWAS Court of Justice is moving away from this “classical” function of Community jurisdiction to claim the “label” of human rights jurisdiction, as will be discussed in section II.

I. From the traditional Community jurisdiction to recognised human rights jurisdiction…

The primary function of the Court is indicated in the preamble to the 1991 Protocol: “the essential role of the Community Court of Justice is to ensure the observance of law and justice in the interpretation and application of the Treaty and the Protocols and Conventions annexed thereto, and to be seized with responsibility for settling such disputes as may be referred to it in accordance with the provisions of Article 56 of the Treaty and disputes between States and the Institutions of the Community”. From this point of view, the establishment of the ECOWAS Court of Justice reflects the same philosophy that has led to the establishment of courts in many integration processes on the continent (SADC, EAC, CEMAC, UEMOA, and so on). It is based on the idea, undoubtedly inspired by the dynamics of European integration , that real economic integration is only possible if it is built on and with the law; that is, if the rules adopted or enacted by the common institutions are interpreted and implemented in the same way by all, without variations linked to the national margin of appreciation. 

The approach thus promotes integration through rules and the restructuring of the legal area. Rules-based integration means that the process must be accompanied by the adoption of new legal rules based on a unit of law, in particular, productive activities and control of the financial space. Drawing the consequences from the failures of previous tests and undoubtedly strongly influenced by the success of the European model, African States perceived the establishment of a Community jurisdiction as an imperative tool to enable compliance with Community rules. It appears that, without being obvious, the relationship between integration and jurisdiction has become necessary: at the end of a phenomenon of reciprocal information between theory and practice, a re-reading of integration has resulted from the European experience and has introduced an ontological link between the reality of legal integration and the existence of a judicial mechanism. 

It is to this notion of rules-based integration that what can be described as the “classical competences” of the ECOWAS Court of Justice can be ascribed. These competences can be found in the statutes of almost all regional integration courts, and are found in Article 9 of the Protocol establishing the ECOWAS Court: 

“1. The Court shall ensure the observance of law and of the principles of equity in the interpretation and application of the provisions of the Treaty. 2. The Court shall also be competent to deal with disputes referred to it, in accordance with the provisions of Article 56 of the Treaty, by Member States or the Authority, when such disputes arise between the Member States or between one or more Member States and the Institutions of the Community on the· interpretation or application of the provisions of the Treaty. 3. A Member State may, on behalf of its nationals, institute proceedings against another Member State or Institution of the Community, relating to the interpretation and application of the provisions of the Treaty, after attempts to settle the dispute amicably have failed. 4. The Court shall have any powers conferred upon it, specifically by the provisions of this Protocol”. 

The Court also has jurisdiction in contentious matters, and:

•  examines cases of failure by Member States to honour their obligations under the Community law; 
• has competence to adjudicate on any dispute relating to the interpretation and application of acts of the Community; 
• adjudicates in disputes between Institutions of the Community and their officials;
• has the power to handle cases dealing with liability for or against the Community; and
• adjudges and makes declarations on the legality of Regulations, Directives, Decisions, and other subsidiary legal instruments adopted by ECOWAS.

In 2005, the ECOWAS Member States further strengthened their commitment to establishing a “Community of Law” by giving a mandate for the protection of human rights. This institution thus proves to be a concrete sign of the attachment of these States to the “recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights” and “promotion and consolidation of a democratic system of governance in each Member State as envisaged by the Declaration of Political Principles adopted in Abuja on 6 July, 1991” (see article 4 of the Revised Treaty related to the fundamental principles of the Community). This means that now “[t]he Court has jurisdiction to determine case of violation of human rights that occur in any Member State” (article 3 Supplementary Protocol A/SP.1/01/05 amending the preamble and articles 1, 2, 9 and 30 of Protocol A/P.1/7/91 relating to the Community Court of Justice and article 4 paragraph 1 of Protocol/A/P.1/7/91, the English version). 

On this basis, and with a barely veiled activist stance, the judges of the ECOWAS Court of Justice have gradually opted for a broad, even avant-garde interpretation of certain points of the rules, not only of ECOWAS, but also of the African Charter on Human and Peoples’ Rights, in order to protect the rights of community citizens.

II. …To the court actively seeking the “label” human rights court

It was on the occasion of the adoption of a Protocol on democracy and good governance in 2001 that the amendment of the 1991 Protocol will be considered for the purpose of “extending the Court’s jurisdiction, inter alia to violations of human rights after the exhaustion, without success, of domestic remedies” (see article 39 of the Protocol 2001). It is on this basis that the Member States have proceeded, four years later in Accra, Ghana, at the adoption of the Protocol A/SP.I/01/05 amending the Protocol of 1991. Interpreting not only the African Charter but also the other international human rights treaties to which ECOWAS Member States are parties, the Court of Justice has been particularly bold and even activist in the construction of a “Community of Law” in West Africa.

The Court thus affirmed the primacy of the African Charter on Human and Peoples’ Rights in the Community legal order, in particular on the grounds that all ECOWAS Member States are parties (Sikiru Alade v. Nigeria, para. 24; Moussa Leo Keïta v. Mali, para. 34). Similarly, taking advantage of the absence of a specific human rights protection instrument within the ECOWAS framework, the Court of Justice has used this gap to opportunely define and broadly delimit the scope and modalities of its jurisdiction in the field of human rights, and have a broad interpretation of the procedural rules. It has thus found itself justified in applying a wide range of international human rights instruments as well as certain national laws. 

The Court of Justice did not hesitate to question the rule of prior exhaustion of domestic remedies, considering that “there is (…) no reason to consider the absence of prior exhaustion of domestic remedies as a gap that the practice of the Court of Justice of the Community must fill; because it cannot, without violating the rights of individuals, impose conditions and formalities on them which are more burdensome than those laid down in Community legislation” (Hadijatou Mani Koraou v. Niger, para. 45).  The Court does not seem to think that this is a customary principle of contentious law that it must apply even in the absence of a textual prescription. In the case of CDP and others v. State of Burkina Faso, it opted for a particularly broad application of the status of “potential victim” to identify personal harm and admit a claim. Previously and in the same case, the Court argued that the situation for which it is seized is urgent, in order to dispense with the obligation to examine its jurisdiction (para. 16).

On the substantive issues, it has sometimes been questioned whether the ECOWAS Court of Justice does not, in fact, impose on itself a third level of jurisdiction: A kind of supra-constitutional court that gives itself the power to control the rules of the political and electoral game, including the decisions of the Member States’ constitutional courts. No doubt seeing resistance being organized on the part of some national courts, in particular the Burkinabe courts in the course of the CDP and other judgments, the Court kept itself to clarifying the limits of its mandate. It thus recalls that it is “out of the question that it should  insure the police for the elections that Member States organise” even if it admits that it can be “validly seized when it appears that the electoral process is marred by human rights violations, violations for which the sanction falls within its competence.” It also reiterates its “refusal to establish itself as a judge of the internal legality of States;[it is not] a body responsible for deciding cases involving the interpretation of the law or the Constitution of ECOWAS States” (See CDP and Others v. Burkina Faso, para.’s 19, 24; and Isabelle Ameganvi and Others v. Togo, para….). 

Conclusion

Finally, if the Court of Justice has been able to seize the opportunities offered by the extension of its jurisdiction to human rights issues to establish itself increasingly as one of the most active in this field, it is because it knows that it can count on the tacit support, or at least the indulgent tolerance, of ECOWAS Member States to avoid the fate suffered by the SADC Tribunal. This support from States is called for by the very active involvement and lobbying of civil society organisations in the region. This mobilization and support were evident in an attempt by the Gambia to reduce the Court’s jurisdiction. After its conviction for torture and other human rights violations in Manneh v. The Gambia in 2008, the Gambia country tried to limit the human rights mandate of the ECOWAS Court of Justice by expressly requesting an amendment to the 2005 Protocol. There was a widespread mobilization of civil society, which undoubtedly contributed to the rejection of the Gambian proposal by the ECOWAS Council of Ministers of Justice. This crisis was also a summary of the strengths, weaknesses, and dangers facing the ECOWAS Court of Justice.

In a more general and systemic approach to the protection of human rights in Africa, there is concern about the lack of regular references to the African Court and Commission on Human and Peoples’ Rights in the case-law of the ECOWAS Court of Justice. There is a risk of contradiction, even divergent interpretations of the same instrument as the African Charter on Human and Peoples’ Rights. Formal and informal bridges between these different jurisdictions should be established quickly, enabling them to enrich each other for the consolidation of the rule of law and the protection of the human person in Africa. 

Mihreteab Tsighe holds Ph.D. from the Centre of Excellence for international Courts (iCourts), University of Copenhagen and teaches international law at the School of Law and Federalism, ECSU, Ethiopia. He regularly writes on the work of African regional courts. He focuses mainly on evolution of international courts, the interaction between law and regional integration, the role and power of lawyers in regional integration, the increasing importance of supranational legal institutions and regional integration.

The EACJ has a special mandate in the institutional set up of the East African Community (EAC). This blog post deals with the jurisdiction, case law and recent developments in the East African Community Court of justice. The court has been criticised for not having more economic law cases in its docket. The overwhelming majority of cases relate to matters that relate to human rights, an area that the Court has no official mandate yet to adjudicate. Following the rule of law violation cases are cases relating to institutional matters. Although the docket of the courts is full of these two categories of cases, this blog post reveals that the court has started to rule on economic law matters bringing back in its original economic law jurisdiction.

Jurisdiction 

The EACJ is the judicial organ of the EAC. [Article 23of the East African Community Treaty (EAC Treaty)] The Court has a First Instance Division, and an Appellate Division and its role are to ensure the adherence to law in the interpretation of and application of the treaty. [Articles 23 and 27] The Court is composed of a maximum of 15 judges appointed by the Summit. [Article 24] The Court has jurisdiction in cases brought by the Partner States, the Secretary-General, and legal and natural persons. Also, the Court holds jurisdiction in disputes between the Community and its employees; it is empowered to give advisory opinions, and it may, upon request, serve as an arbiter; it may, upon request from national courts, give a preliminary ruling on matters of the treaty. [Articles 28, 29, 31, 32, 34 and 36] The treaty provides that the Court shall have such other original, appellate, human rights and other jurisdiction as should be determined by the Council at a suitable date. [Article 27(2)] Following this, in 2015 the Court’s jurisdiction was extended to cover trade and commercial disputes and disputes arising out of the implementation of the Protocol on the Establishment of the East African Monetary Union leaving out human rights matters. 

Case Law of the EACJ

Function-wise, today the work of the EACJ may be roughly divided into three main groups: 

1. Rule of law violations: The Court has repeatedly decided human rights-related matters in the framework of the rule of law and governance principles enshrined in the EAC Treaty. It is incontestable that the Court does not have an official human right jurisdiction. Nevertheless, its power to interpret the treaty is intact, and this includes interpretation of article 6(d)[ good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights] either alone or in conjunction with Article 7(2).[ The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.] The relevant case-law of the EACJ has a solid legal basis in Article 6(d) and 7(2) of the EAC Treaty.
2. Community matters: These are types of actions that challenge community organs. It is this type of case that put the EACJ into motion when it decided its first case, the Mwatela case, addressing procedural matters arising from the tasks of the organs of the community, mainly the Council and the Assembly. 
3. Economic matters: There is generally an absence of economic cases before the EACJ. However, recent developments show that the court has started to decide economic cases. The tow cases related to Economic matters are the Grands Lacs Supplier S.A.R.L and Others vs. The Attorney General of the Republic of Burundi, and British American Tobacco (BAT) Ltd Uganda V Uganda.

This division exemplifies the EACJ’s different types of work, but it is not the only type of work the Court does, nor is it necessarily a classification of its body of jurisprudence. Apart from the three main groups related to subject matter jurisdiction, there is also the ‘left-over’ jurisdictional task of the EACJ. The most notable amongst these other tasks of the EACJ are Advisory opinion, preliminary reference and arbitration jurisdiction. While the EACJ rendered two advisory opinions, it has received only one preliminary reference to date. The EACJ has not used its arbitral jurisdiction yet.  

On the whole, the order in which the three main types of EACJ activity have been set out reflects how strongly each category is represented within the overall docket of the EACJ today. In the last two decade, one may notice a distinct rise in the number of the rule of law violation cases. Almost all cases decided by the EACJ are about the violation of the rule of law principles enshrined in the EAC Treaty. Thus, in a way, a transformation of the EACJ into a human right jurisdiction mostly shied away from Economic Law matters, and instead concerned itself primarily with the interpretation of the Article 6 and 7 of the treaty on the rule of law and good governance. 

The EACJ and the African Charter 

Subject-wise, the EACJ has drifted away from principally being an economic court. Most of the EACJ’s consideration was devoted to the same ‘unusual suspects’, namely rule of law violations, detention, and freedom of the press. 

As the EACJ remains, predominantly, a defacto human rights court after the Katabazi Case and as far as the overall subject matter of its docket is concerned; there has been a considerable change as to how human rights issues are discussed in the recent case law of the Court.  In the case of the Democratic Party, the EACJ explicitly held that it has jurisdiction to interpret the African Charter on Human and Peoples Rights (ACHPR) in the context of the EAC Treaty. The essence of the case was that the applicants claimed that Burundi, Kenya, and Uganda violated the EAC Treaty because of the lengthy course of depositing instruments of declarations regarding the Protocol that established the African Court (the Protocol) Precisely, the petitioners claimed that such delays amounted to violations of the EAC Treaty and the ACHPR. The EACJ First Instance Division rejected the case reasoning that its sole jurisdiction is to ensure the adherence to the law in the interpretation and application of and compliance with the EAC Treaty. It explicitly held that it does not have jurisdiction to ensure compliance with the ACHPR and the Protocol. On appeal, the matter for the Appellate Division was to determine whether there was an error of law in the judgment of the First Instance Division. According to the EACJ Appellate Division, Articles 6 (d) and 7(2) of the Treaty endow the Court to apply the provisions of the ACHPR, the Vienna Convention, or any other applicable international instrument, to guarantee the Partner States’ adherence to the provisions of the Treaty, and provisions of other international instruments to which the Treaty refers. The role of the Court is to determine the Partner States’ adherence to, observance of, and/or compliance with the Treaty provisions as well as the provisions of any other international instruments incorporated in the Treaty, whether directly as in Article 6(d), or indirectly as in Article 7 (2). Although it has not yet claimed to have human right jurisdiction, its reasoning reveals it is close to that.

Nevertheless, one can safely argue that the Appellate Division decision in the Democratic Party case has influenced the First Instance Division in the Mseto case. The First Instance Division determined the case of freedom of the press and freedom of expression through the interpretation of the African Charter and International Covenant on Cultural and Political Rights (ICCPR). The Court found Tanzania failed to establish how the publication in the Mseto newspaper violated the interest of the public, or the interest of peace and good order of the people. This lead to the conclusion that the order to ban the newspaper violated the right of freedom of expression enshrined in Article 18(1) of the Tanzanian Constitution, or as stipulated in Articles 19(3) of the ICCPR and 27(2) of the African Charter. Moreover, for the Court, the order to ban the newspaper violates the principles of democracy, good governance, and the rule of law. Tanzania acted unlawfully, by issuing orders based on mere “opinions” and by failing to recognise the freedom of expression and the press as a basic human right under the provisions of the African Charter. The Court stressed the binding nature of Article 6(2), 7(d) and 8(1) of the Treaty by declaring these provisions as not merely aspirational. The provisions are justiciable and generate obligations to the Partner State to respect the principles of good governance and the rule of law, which include accountability, transparency and the promotion, and protection of democracy. The Court found a violation of these principles. The court recognised that the rights to press freedom, to receive and impart information are not absolute.

Nevertheless, the restrictions against the newspaper were unlawful, disproportionate and did not serve any legitimate or lawful purpose. The Court has held that Tanzania acted in breach of the Treaty, it decided that an unlawful act must be followed by an act taking the parties to the state of affair that existed before the banning of the newspaper. As a result, the Court ruled for the resumption of the publication of Mseto.  

Although this development might have widened the already existing narrow door for human rights cases via a rule of law violations, it would be interesting to see the Partner States’ reaction as they have delayed the extension of human right jurisdiction of the Court. Indeed, it seems that the time for substantive human right cases appearing in the Court is ripe and the court has taken cases that fall under articles 6(d) and 7 (2) to another level by determining the Mseto case.

Recent Developments: Bringing Back the EACJ’s Economic Law Jurisdiction? 

Much of the debate as to whether the EACJ is an economic court might have thus been perhaps caused by the general absence of economic cases and by the sheer presence of a violation of the rule of law cases. The overall debate concerning the jurisdiction of the EACJ today might be affected with two recent economic decisions of the Court, the Grands Lacs Supplier case and the British American Tobacco (BAT) Ltd Uganda. In both cases, the ECAJ handed down rulings which may prove for the Courts as returning to its roots. In these, cases, the court came out of its shell and exposed its nature of an economic court.  In the Grands Lacs Supplier case, the applicant challenged Burundi for allegedly (unlawfully) seizing the applicant’s goods in violation of the fundamental principles and objectives of the EAC Treaty and the Protocols on Customs Union and Common Market. The applicants argued that the seizure hinders the free movement of goods by Partner States’ nationals across their borders.  The Court ruled that the decision to seize the Applicants’ goods without due process violated the rule of law stipulated in Articles 6(d) and 7(2) of the Treaty.  In exercising its judicial discretion in light of the facts and the circumstances of the case, the Court awarded general damages to the applicants. 

 In the British American Tobacco (BAT) Ltd Uganda case, the EACJ ruled the imposition of new excise duty law over imported cigarettes within East Africa violated the East African Community Treaty (EAC Treaty), the Customs Union (CU) and the Common Market(CM) Protocols. The British American Tobacco (BAT) Ltd Uganda, challenged the Government of Uganda over the Excise Duty (Amendment) Act of 2017. Uganda issued tax assessment notices based on the Excise Duty (Amendment) Act of 2017, imposing the payment of excise duty for its Kenyan made and cigarettes and imported to Uganda. 

According to the Court, designating the cigarettes as ‘imported goods’ is a misconstruction and a wrongful re-classification, and it violates the EAC Treaty, the CU Protocol, and the CM  Protocol. Besides, the court ordered the government to ensure the interpretation and application of Excise Duty Act with due regard and in compliance with applicable Community Law and to align the Ugandan tax laws with Community Law applicable to goods from the EAC Partner States. 

The case-law of the EACJ reflects the interest of parties to cases. When more parties bring cases of human rights matters, the court resembles a human rights court. When more parties bring economic law cases, the Court resembles an economic court. Human rights-related cases in the framework of the rule of law moved the EACJ forward and allowed it to make its distinct imprint the protection of human rights and the rule of law. It seems the time has now come for further evolution of the Court with the decisions on economic law cases. Today, the EACJ arguably has the ambition to become more than a ‘one-sided-defacto human right-court’. Taking into account the already discussed rise of the human rights cases and the recent economic law decisions, the EACJ is on the verge of becoming a genuine international Court significant for human rights and economic integration. 

My second post for the Monitor is also the kick-off of a special series we have put together for the new year on the use of other sources of law among five prominent regional courts: African Court, ECtHR, IACtHR, EAC Court of Justice, and ECOWAS Court. This first post in the series starts with the focus of the Monitor: the work of the African Court. In the coming months, posts will follow on the other courts outlining their jurisdiction, highlighting their important cases, as well as any cross-references between their work and the jurisprudence of the African Court. We hope you enjoy! Misha

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Articles 3(1) and 7 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) allow the African Court to do two important things: 

• Article 3(1) ensures that the African Court has jurisdiction over “the Charter, [the] Protocol and any other relevant Human Rights instrument ratified by the States concerned.” [emphasis added]
• Article 7 allows the African Court to use “the Charter and any other relevant human rights instruments ratified by the States concerned” as sources of law. [emphasis added] 

These two articles have had a significant impact on the jurisprudence of the African Court. When one looks at the jurisprudence of the African Court it becomes clear that the it has made good use of these provisions. There are an abundance of cases in which the African Court draws on other relevant human rights instruments as sources of law, and even a few cases in which it has found a violation of another human rights instrument to which the Respondent State is a party (see for example Norbert Zongo et al. below). 

The African Court uses both sources from within the continent—the treaties and practice of regional economic community (REC) Courts—and further a field, like the IACtHR and the ECtHR. The overlap between the African Court and the REC Courts is interesting because the latter were establishmed to deal with different types of cases, namely economic matters rather than function as human rights courts as such, although the mandate of the ECOWAS Court has changed over time as will be demonstrated in the months to come.

The work of these ‘other’ courts will be dealt with in the subsequent posts of this special blog series, while this particular blog post will focus on how the African Court makes use of articles 3(1) and 7 of the Protocol. In the following section the general trend will be discussed through the examination of three leading cases: Norbert Zongo et al., Alex Thomas, and Peter Joseph Chacha.

The Practice of the Court

When one studies the jurisprudence of the African Court it becomes clear that in recent years it has become increasingly self-referential as it builds its own body of jurisprudence. However, many of the pivotal cases that the African Court now references drew strongly on other sources of law such as the ICCPR, the ECHR, and/or the IACHR. Three of the leading cases of the African Court, and how they used ‘other human rights instruments’ and the work of other human rights institutions, will be discussed here. These three cases were chosen because they have come to be some of the most influential in the African Court’s subsequent jurisprudence, and in each the African Court relied on other sources of law in its decision-making process. Therefore, it is important to understand how these other sources were used in order to better understand the precedent that was set in each case.

Norbert Zongo et al. 

The first is the case of the Beneficiaries of the Late Norbert Zongo, Aboulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabè Movement on Human and Peoples’ Rights v Burkina Faso (Norbert Zongo et al.). Up until late 2018, the case of Norbert Zongo et al. was by far the most cited case in the African Court’s jurisprudence, with Peter Joseph Chacha and Alex Thomas trailing behind with only slightly fewer references to them.

In the case of Nobert Zongo et al., the Applicants alleged violations of not only the Charter, but also the Revised ECOWAS Treaty, ICCPR, and the UDHR [para. 9-11]. Ultimately, the African Court found that Burkina Faso violated article 7 (right to a fair trial), article 1 (obligation to adopt measures, other than legislative measures), as well as a violation of article 9(2) of the Charter and article 66(2) of the Revised ECOWAS Treaty [para. 203]. In deciding the case, the African Court made a number of important decisions.

First, the African Court reaffirmed that it had material jurisdiction over other human rights instruments, in accordance with article 3(1) of the Protocol, with regard to the alleged violations of the ICCPR and Revised ECOWAS Treaty [para. 48-49].

Second, the African Court used the work of the ECtHR as a link between various legal families. Specifically, the African Court referenced the work of the ECtHR “in a matter concerning France which belongs to the same legal family as Burkina Faso” [para. 70] in order to determine whether domestic remedies had been exhausted. No reference was made to the IACtHR in the case.

Third, the African Court drew connections between various legal instruments. For example, connections were drawn between article 7(1) of the Charter and articles 2(3) and 14 ICCPR, as well as article 8 UDHR [para. 114]. In addition, the African Court created a hierarchy by  stating that it would consider an alleged violation of article 7 of the Charter first, “and then, if need be, in regard to the provisions of other international instruments invoked by the parties.” [para. 118]. Therefore, despite drawing on these other human rights instruments, the African Court prioritised the Charter as the main source of law. As a result, since the African Court found a violation of article 7, it did not go into whether there was also a violation of articles 2(3) and 14 ICCPR or article 8 UDHR in this particular case [para. 157]. The same was true for the alleged violation of the right to equality in article 3 of the Charter and article 14(1) ICCPR [para. 170], and the alleged violation of the right to receive and disseminate information and freedom of expression in articles 9(1) and (2) of the Charter, article 19(2) ICCPR, and article 66(2)(c) of the Revised ECOWAS Treaty [para. 178]. The African Court did, however, find that article 9 of the Charter and article 66(2)(c) of the Revised ECOWAS Treaty “should be read jointly.” [para. 180, also see 187].

But it wasn’t just the African Court that made reference to these other sources, the Respondent, Burkina Faso, in this case also used the ECtHR’s jurisprudence to justify why the case had taken longer to go through the domestic legal system and why that did not constitute an undue prolongation of the remedies [para. 75-76 and 80]. The only party to invoke the work of an African institution were the Applicants, who invoked the work of the African Commission on article 7 [para. 141]. 

In the end, the African Court unanimously found that Burkina Faso had violated articles 1 and 7 of the Charter. With a majority of five to four, it also found that Burkina Faso violated article 9(2) of the Charter, “read together with article 66(2)(c) of the Revised ECOWAS Treaty.” [para. 203(1)] (The dissenting opinion was on the standard of evidence required, not on the sources of law).  

Alex Thomas

The case of Alex Thomas v Tanzania is not only important from the perspective of the development of the right to fair trial in the African human rights system, but it is also important in the context of the African Court using other sources of law. Perhaps more so than almost any other case, the judges in Alex Thomas relied heavily on other human rights instruments, and the interpretation thereof by other human rights institutions, in order to further expound on what article 7 and the right to a fair trial entails.

In this case, the Applicant, Mr Thomas, alleged a violation of articles 1, 3, 5, 6, 7(1) and 9(1) of the Charter [para. 19]. The African Court discussed various aspects of article 7: the right to be heard and to defend oneself [para. 81-99]; the right to be tried within a reasonable time [para. 100-110]; the right to legal aid [para. 111-124]; the allegation of manifest errors during trial [para. 125-131]; among others. In deciding the case, the African Court relied on the work of the CCPR, ECtHR, IACtHR, and African Commission, as well as its own jurisprudence.

First, on procedural matters, the African Court referenced its power to draw on external sources [para. 88], and then went on to use them to interpret its jurisdiction. On the issue of not being an appellate court, yet still having jurisdiction over “manifest errors at trial”, the African Court drew on its own case law in Ernest Francis Mtingwi v Malawi, the work of the ECtHR in Baumann v Austria, Gracía Ruiz v Spain, Perez v France, and Dulaurans v France, the African Commission decision Priscilla Njeri Echaria v. Kenya, as well as the IACommHR case Santiago Marzioni v Argentina[para. 130, footnote 28].

Second, in interpreting the content of the various rights invoked, the African Court reiterated its procedural powers and proceeded to draw heavily on external sources:  

• Article 7(1)(c): In the merits section, the African Court reiterated its power to interpret article 7(1)(c) of the Charter “in light of the provisions” of article 14 the ICCPR, as Tanzania was a party to that treaty [para. 88]. The African Court then went on to discuss the protections provided in article 14 ICCPR [para. 90] and applied it to the case [para. 91-94, also see para. 114]. The African Court added that it was “fortified in its reasoning by the decisions of the African Commission[, the] European Court of Human Rights and the Inter-American Court of Human Rights, which are courts of similar jurisdiction.” [para. 95 and 116]. In its interpretation, African Court used the African Commission decision Advocats Sans Frontières v Burundi [para. 96 and 117], as well as the various declarations, principles, and guidelines of the African Commission [para. 121, also see 144]. The African Court also made reference to the ECtHR cases Colozza v. Italy [para. 97], Benham v UK, Quaranta v Switzerland, Zdravka Stanev v Bulgaria, Talat Tunç v Turkey, Prežec v Croatia, Biba v Greece [para. 118, footnote 20], and Salduz v Turkey [para. 119], as well as the IACtHR case Suárez Rosero v. Ecuador [para. 98], and the CCPR communication Anthony Currie v Jamaica [para. 120]. 
• Article 7(1)(d): The African Court did much the same with the interpretation of article 7(1)(d) of the Charter [para. 102], which was interpreted in light of the work of the African Commission in Haregewoin Gebre-Sellaise & IHRAD v. Ethiopia and Odjouoriby Cossi Paul v. Benin [para. 103]. The African Court also drew on article 8(1) of the Charter and the cases of Suárez Rosero v. Ecuador, Ximenes-Lopes v. Brazil, Ituango Massacres v. Colombia, and Baldeón-García v. Peru before the IACtHR [para. 104, footnote 17], as well as the work of the ECtHR in Ruiz-Mateos v. Spain [para. 104, footnote 18]. 
• Article 1: As to the “overarching applicability of Article 1 of the Charter” the Court invoked its own jurisprudence from Nobert Zongo et al., and the work of the African Commission in Sir Dawda K. Jawara v. the Gambia [para. 136]. When it came to the decision that the delay in proceedings did not constitute cruel, inhuman and degrading punishment and treatment, the African Court did so taking into consideration the work of the CCPR on the matter [para. 146]. It also made reference to the ECtHR cases Price v UK, Valašinas v Lithuania, and Pretty v UK [para. 146, footnote 31], as well as the CCPR communication of Earl Pratt and Ivan Morgan v. Jamaica (1986) and (1987) [footnote 32]. 
• Remedies: The last element of the case related to Mr Thomas’ request to be released from prison [para. 155-159]. The African Court rejected this plea [para. 157], and based its decision primarily on the IACtHR case Loayza-Tamayo v Peru, and the requirements of “very specific and/or compelling circumstances” [para. 157, footnote 33]. Instead, the African Court offered re-opening the case as an alternative remedy [para. 158], drawing on the work of the ECtHR in Stoyanov v. Bulgaria [para. 158, footnote 34]. 

The Applicant, Mr Thomas, in contrast, drew on the previous work on the African Court and invoked the jurisprudence developed in Frank David Omary and Others v. Tanzania and Peter Joseph Chacha [para. 44]. It was in these two cases that the African Court decided it had jurisdiction ratione materiae [para. 45]: The Applicant need only specify a human rights violation, as contained in the Charter or other human rights instrument, and not necessarily identify which specific rights these alleged violations correlate to in the instrument itself [also see para. 51-52]. In addition to the African Court’s own case law, it was also “persuaded by the reasoning of the African Commission in Southern African Human Rights NGO Network v. Tanzania” on the need to only exhaust ordinary domestic remedies [para.64].

The Respondent, Tanzania, also invoked other sources, and reached beyond the continent in support of its position. Tanzania invoked “international human rights standards” to support their arguement that Mr Thomas had not filed his application within a reasonable time [para. 66]. In their rebuttal, the Applicant relied on the work of the African Commission to refute this point [para. 72]. The African Court in turn relied on its own jurisprudence in Nobert Zongo et al. and its precedent on reasonable time [para. 73]. 

In the end, the African Court exercised the full extent of its powers under articles 3(1) and 7 of the Protocol and found that Tanzania had violated articles 1, 7(1)(a), (c) and (d) of the Charter, and article 14(3)(d) of the ICCPR [para. 161]. Therefore, Tanzania had “failed to comply with its obligations under the Charter and the ICCPR” [para. 124]. Therefore showing that the African Court would not limit itself to only using other human rights instruments as a tool for interpretation, but could also find violations of such other instruments.

Peter Joseph Chacha

The case of Peter Joseph Chacha v. Tanzania is perhaps the odd one out of three cases discussed here. The African Court issued a ruling on admissibility, finding the application inadmissible, unlike the other two cases discussed above, which were decided on the merits. Nevertheless, the case of Mr Chacha set an important precedent when it comes to Applicants not having to reference specific provisions of the Charter in order to claim a violation thereof, as well as on the exhaustion of domestic remedies. While the African Court did not see the initial lack of clarity on which Charter rights the Applicant was invoking as a ground to dismiss the claim, his lack of exhaustion of domestic remedies was [para. 155].

On the issue of invoking Charter rigths, Mr Chacha made reference to a violation of Tanzanian law, and not the Charter as such in his initial application. In subsequent submissions, Mr Chacha alleged that his rights contained in articles 3, 5, 6, 7(1), 14, and 26 of the African Charter were violated [para. 67].  In deciding the case, the African Court relied on a number of external sources. But it was not only the African Court that did so. For example, both Tanzania and Mr Chacha discussed the Rules of Procedure and Statute of the IACtHR [para. 79], and Tanzania also made reference to a case decided by the Indian Supreme Court to support its position on the use of expert witnesses [para. 73-4]. In establishing the important precedent on whether or not Mr Chacha had to reference a specific article in the Charter, the African Court discussed the preliminary objection to its jurisdiction to hear the case drawing on African and other sources.

First, the African Court references its own case law in the consolidated cases of Tanganyika Law Society et al. and Reverend Mtikila v Tanzania. Here the African Court reiterated its rejection of the idea that it does not have jurisdiction ratione materiaebecause the claim is based only on domestic law. The African Court instead argued that it would find equivalent articles in the Charter, as it had done in the previous case [para. 113]. In making this argument the African Court also drew on the work of the African Commission in Southern African Human Rights NGO Network and Others v Tanzania. The African Court used this communication to support the argument that the Applicant need only show that there is a prima facie violation, and that “it is not mandatory for the Complainant to mention specific provisions of the African Charter that have been violated” [para. 51].

Second, the African Court not only looked to its own work and that of its compatriot, the African Commission, it also looked further afield and drew on a number of cases before the ECtHR like Guerra and Others v Italy, Scoppola v Italy (No. 2), and Previti v Italy [para. 120, footnote 3], as well as the jurisprudence of the  IACtHR in Hilaire v Trinidad and Tobago [para. 121]. The case law of the ECtHR and the IACtHR supported the idea that there was no need for specific reference to be made to articles in the relevant human rights instrument in order to bring a case before these human rights courts.

When it came to the exhaustion of domestic remedies, much the same was true. Here again the African Court drew on its own jurisprudence in the case of Urban Mkandawire v Malawi [para. 142], and that of the African Commission inKenyan Section of the ICJ, Law Society of Kenya and Kituo Cha Sheria v Kenya and Anuak Justice Council v Ethiopia [para. 143 and 144]. Although, here it did not draw on cases beyond the continent. 

In the end, in a six to four split (the Tanzanian judge recused himself), the African Court found that the application was inadmissible because the Applicant, Mr Chacha, had not exhausted domestic remedies [para. 159].

Conclusions 

These three cases have become pivotal in the case law of the African Court. Each of them in turn built on important case law from other regional and international human rights institutions and instruments, and used these sources to further develop the meaning and interpretation of the African Charter. While the use of articles 3(1) and 7 of the Protocol, which allows the African Court to draw on these external sources, has declined in recent years, the traces of the effect of other human rights instruments on the earlier jurisprudence of the African Court are clear. Therefore, while many of the newer cases of the African Court draw heavily on the cases of Norbert Zongo et al., Alex Thomas, and Peter Joseph Chahca, these seemingly internal references are tied to a wider body of human rights jurisprudence being developed in other institutions on the continent and around the world.

The rest of this special series is dedicated to a number of these other human rights institutions. The focus will be on how these other courts interpret their legal instruments, how they interact with the African Charter as an instrument (if at all), as well as whether they make reference to the work of the African Court as an institution. So keep an eye out for the contributions on the EAC Court, the ECOWAS Court, the IACtHR, and the ECtHR! 

This month’s blog post is from guest contributor Prof. Rachel Murray. She is a Professor of International Human Rights Law and Director of the Human Rights Implementation Centre, University of Bristol Law School, UK (Rachel.murray@bristol.ac.uk). Her contribution is linked to a larger project on the implementation of judgements of human rights courts. We are incredibly grateful that she has agreed to share her insights here on the Monitor and with our readership!   

Photo: Poster related to the case of Norbert Zongo in Burkina Faso (Credit: Ignace Ismaël NABOLE, obtained via Burkina24.com)

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The African Court on Human and Peoples’ Rights (‘African Court’), in finalising cases, has made a range of orders providing reparations for victims of the violations found. These have included the payment of compensation (Zongo et al v Burkina Faso, Ruling on Reparations, para 111), release of an individual from detention (e.g. Alex Thomas v Tanzania, Interpretation of Judgement), as well as guarantees of non-repetition, such as amendment of legislation (e.g. Konaté v Burkina Faso, para 176(8)). Some have been very specific, others more general (e.g. ‘Orders the Respondent State to amend the impugned law, harmonise its laws with the international instruments, and take appropriate measures to bring an end to the violations established’ (APDF and IHRDA v Mali, para 135(x)). Yet, to what extent do the State authorities implement these orders? The African Court has so far chosen to take a light-touch approach to monitoring implementation of its own judgments. It publishes in its activity reports information on what measures the State has taken with respect to each reparation ordered in the judgment or ruling in a simple table format (Activity Report of the African Court 2018, para 18). Whilst this is useful in keeping track of what the State has done it does not use this to make any assessment on the extent to which it considers such measures to be satisfactory or not.  Rather, in only limited circumstances has it taken further action to make such an evaluation (Interim Report of the African Court on Non-Compliance). According to the Protocol establishing the Court, the African Court is to ‘submit to each regular session of the Assembly, a report on its work during the previous year. The report shall specify, in particular, the cases in which a State has not complied with the Court’s judgment’, and the Executive Council of the AU is required to ‘monitor … execution [of the judgment] on behalf of the Assembly’ (Protocol to the African Charter, Articles 31 and 29(2)). Beyond the information published by the Court in its activity reports, there is no one place where one can find what the State has done to respond to the judgment.

Following a commissioned study to examine what role it should play in monitoring its judgments,^[I] the African Court proposed a Draft Framework For Reporting & Monitoring Execution Of Judgments And Other Decisions Of The African Court On Human And Peoples’ Rights (EX.CL/1126(XXXIV)Annex I). This proposes a monitoring role for the Court, under a newly established Monitoring Unit, whereby the State submits ‘execution reports’ to the Unit. The Court then uses these reports, along with information from other sources, including those other than the parties, to assess the level of compliance by the State, adopting a report on each case to that effect. It also proposes the possibility, in the event of lack of full compliance, of compliance hearings, on site visits and adoption of judgments or endorsement of a memorandum of understanding between the parties. The Framework sets out that the Court can issue a compliance judgment. It shares the monitoring of implementation by submitting compliance reports to the AU policy organs, this being considered firstly by the Permanent Representatives Committee, then the Executive Council and finally the Assembly. Support can be provided by the AU organs including through good offices, although ultimately information on the extent of compliance can be published by the Executive Council and Assembly, and the latter also has the possibility of invoking Article 23 ‘in deserving cases’. Encouraging States to adopt action plans, in line with the practice of the European system, is also identified in the Framework.

On the one hand, sharing the monitoring of implementation with political bodies can provide additional tools (as well as pressure) on States to respond. Certainly this is the model adopted by the Council of Europe whereby it is State diplomats in the Committee of Ministers and staff of the Department of Execution of Judgments that monitor implementation of the European Court of Human Rights’ judgments (Çali and Kok; Palmer; Committee of Ministers 2017). Yet this presumes respect for the independence of the judicial body by the political organs, something which is of considerable concern at present in the African system, as reflected in the adoption of the Executive Council decision in July 2018, which was seen as an AU policy organs’ interference in the independence of the African human rights system (EX.CL/Dec.1015(XXXIII); Biegon 2018). The Permanent Representatives’ Committee (PRC), Executive Council and Assembly need to be prepared to uphold the independence of the Court and properly assess State compliance, or lack thereof, with its judgments.

The Human Rights Law Implementation Project

The University of Bristol’s Human Rights Law Implementation Project tracked the implementation of decisions from a number of States in Africa, the Americas and Europe.^[ii]Included among these decisions were App. No. 013/2011 – Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso and App. No. 004/2013 – Lohe Issa Konaté v. Burkina Faso before the African Court. The cases related to the assassination of a journalist, Norbert Zongo, and companions, with the Court finding violations of the right to a fair trial and free expression, (Zongo et al) and criminalisation of defamation (Konaté). Burkina Faso was ordered to pay compensation; amend legislation on defamation; expunge the criminal convictions of Konaté; reopen investigations and bring the perpetrators to justice; and publish the judgment in various places at the national level. On the face of these, the State implemented the remedies quickly and in full. It paid the compensation within the six-month time limit; amended legislation; investigations were commenced and individuals prosecuted; and the judgment was published in the official gazette, a national newspaper and online.^[iii] This positive record should be acknowledged. However, the factors determining how and why the State responded as it did are complex. These judgments were adopted in December 2014 (merits) and June 2015 and 2016 (reparations) in the wake of a transition government, as well as presidential and legislative elections. Legislation was indeed amended but there is evidence that national press associations played a key role in pushing for this, using the African Court ruling as a further tool (Interview A.1., 12 December 2017). Compensation was paid but domestic law and rules had to be followed to enable the money to reach the victim (Interview A.4., 13 December 2017). Therefore, even though this is a situation in which the government stated its intention to comply with the Court’s judgment and ruling, various other factors were crucial in facilitating and ensuring implementation.

Recommendations

What these judgments show, and our research supports, is that ensuring implementation is a multi-faceted process, requiring a ‘multi-dimensional’ approach which recognises the specificity and complexities of individual cases.^[iv] For treaty bodies such as the African Court, this has a number of implications.

Firstly, although the African Court has ordered a variety of different types of reparations, it is by no means clear the basis on which it chooses the particular reparation. There does not appear to be a correlation between the violation of a particular right and a reparation being ordered. While this provides the African Court, and indeed the parties, with flexibility in calling for reparations which fit the context, it also fails to offer any guidance to the parties on what they can ask for. Some further assistance from the African Court, even if only to outline the possible reparations that it can order, may be useful.

Secondly, the African Court has been quite visible in providing the information on what the State has done to implement its judgements and rulings. However, this information is only available in its activity report. For those not familiar with how the Court works, the detail is hidden, not immediately visible from the front pages of the website. Our research suggests that one of the challenges with implementation of these types of international decisions is that there is limited visibility of their existence, let alone the measures taken by the State, at the national level (Murray 2019; Interview A.7. December 2017; Interview with civil society representative, Burkina Faso, July 2017; Interview B.2, July 2017; Interview with government official, Burkina Faso, December 2017). Key government authorities, parliamentarians and the judiciary, as well as national human rights institutions and civil society are not always aware of the judgment thus limiting the possibility of a ‘compliance coalition’ developing which can hold the State to account and work collectively towards implementation (Hillebrecht 2014; Hillebrecht 2012). The African Court can facilitate the visibility of its judgments at the national level by being more consistent in calling on the State, as it has done in some of its judgments and rulings (e.g. Mtikila v Tanzania, Ruling on Reparations, para 46), to publish the decision at the national level on a government website and in the national gazette. Furthermore, it could also require that information on the judgment is disseminated on social media. However, it is not just the judgment itself that may not be visible, but also the measures taken by the State to implement it. Consequently, the African Court can go further by requiring that the State publish information on the action it has taken to implement the decision. The African Court could also provide the tables in its activity reports elsewhere on its website to increase their visibility.

Thirdly, implementation is not automatic, even if the executive authorities are keen to comply with the Court’s judgment or ruling. For instance, compensation requires the involvement of other government authorities, such as the treasury or ministry of finance and budgetary considerations need to be taken into account. Amendment of legislation will necessitate the involvement of parliament, an entity independent of the executive and over whom it may have little control; and amendment or introduction of legislation in response to a judgment of the African Court will often be subject to the same rules and procedure as any other piece of legislation prompted by national actors. Release of an individual from custody, for example, will require some form of domestic process to be triggered in order for the judicial bodies to authorise. Some States have a government-committee or body which has the responsibility to coordinate implementation and identify the various elements of the State that need to take action.^[v] Yet, these do not always operate transparently, may not have the broad composition needed to ensure dissemination of the decision or meet infrequently. Follow-up of the judgment can therefore slip between the cracks at the national level, with no one taking the lead on monitoring or ensuring its implementation. For most States, judgments from bodies such as the African Court are very few in number, and consequently a process is most likely often not in place at the national level to manage implementation. To address this, the African Court could, in each of its judgments or rulings on reparation call for the State to appoint within, say, a month, a focal point for that judgment who would take responsibility for coordinating its implementation. This would then provide the African Court with the key interlocutor with whom it could continue any discussions and obtain information on implementation and any challenges. Although the African Court has in the past asked States to identify focal points in the State ‘within the relevant Ministries, to facilitate communication between the Court and Member States (Report of the activities of the African Court 2016, paras 51 and 60(ix)), individual personnel changes can make continuity problematic. Requiring the State to nominate an individual or government department to take responsibility for that particular judgment or ruling at the time it is adopted may help to avoid such difficulties.

Lastly, the communication process is inherently adversarial, pitting the State authorities against the litigants and victims. Yet, what we found in our research is that often, post-decision or judgment, there is a need for some form of dialogue between the parties.^[vi] If the reparation is left open-ended, then the State may need to negotiate with the victims as to what is required. The State equally may not always be clear precisely what is needed to implement the decision or may experience challenges in doing so. The African Court can be requested to interpret its judgment, an opportunity used by Tanzania and Côte d’Ivoire. This gave the Court the ability to clarify further what it required the State to do (Alex Thomas v Tanzania, 2017; APDH v Côte d’Ivoire, 2017; Abubakari v Tanzania, 2017). Whilst such mechanisms should not be used by the State to delay implementation or as a way of evading their responsibilities in providing relief to the victims, they are a form of conversation with the Court post-decision. In other cases in our Project, although not those of the African Court, we also saw that there may be greater consensus between the parties than each may be willing to admit in an adversarial process. Offering some possibility of dialogue between them post-decision can help to move implementation forward. As to whether the African Court, as a judicial body, can play this role needs to be carefully considered, and indeed lessons can be drawn from the experiences of the Inter-American Court on Human Rights in this regard (Inter-American Court, 2015; Rubio-Marín and Sandoval, 2011).

Whatever approach it adopts, the African Court may still wish to consider how it reflects the need for dialogue post-judgment in its rulings. For instance, it could ask the State to identify the focal point responsible for implementation and explicitly requiring that it engage with the victims in the implementation. Further, if there is a national committee such as a National Mechanism for Implementation, Reporting and Follow-up (NMIRF) then the African Court could explicitly recognise, in the reparations, the NMIRF’s role in implementation.

The implementation of the African Court’s judgments and rulings, as with those of any treaty body, is key to its legitimacy and effectiveness. The African Court’s willingness to develop a framework to clarify its role in monitoring how States respond to its decisions is very much to be welcomed.

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^[I] As requested by the Executive Council of the AU, Decisions Ex.CL/Dec.806 (XXIV) of January 2016 and Ex.CL/1012 (XXXIII) of June 2018, in which it asked the Court ‘to propose, for consideration by the PRC, a concrete reporting mechanism that will enable it to bring to the attention of relevant policy organs, situations of non-compliance and/or any other issues within its mandate, at any time, when the interest of justice so requires’.

^[ii] www.bristol.ac.uk/hrlip. This was funded by the Economic and Social Research Council (ESRC) and was in collaboration with the Universities of Bristol, Pretoria, and Middlesex and Essex as well as the Open Society Justice Initiative. Interviews were conducted with a wide range of stakeholders. These are anonymous, but referred to below by way of a letter and number, or position of the interviewee where appropriate.

^[iii] African Court, Report on the activities of the African Court on Human and Peoples’ Rights (AfCHPR), 22-27 January 2017, EX.CL/999 (XXX), para 21(i). Interview A1, 12 December 2017. See also http://www.panapress.com/Burkina-Faso-to-compensate-victims-of-political-violence–13-455288-17-lang1-index.html; Interview A.11, December 2017.Interview A7, 23 December 2017; http://www.sig.bf/2015/09/decision-de-la-cour-africaine-des-droits-de-lhomme-et-des-peuples-sur-affaires-norbert-zongo/; List of issues in relation to the initial report of Burkina Faso, Addendum Replies of Burkina Faso to the list of issues*, [Date received: 1 April 2016], CCPR/C/BFA/Q/1/Add.1, 21 April 2016, para 103; Interview A1, 15 December 2017; Interview A.2, 15 December 2017; CHR, HRLIP, Workshop Report, Evaluation by Burkina Faso of their implementation of decisions made by International Human Rights Bodies, Ouagadougou, 27-28 November 2017; Press Freedom and Africa’s Regional Courts: A Positive Model for Transparency and Accountability’, Nani Jansen-Reventlow, http://www.doughtystreet.co.uk/news/article/press-freedom-and-africas-regional-courts-a-positive-model-for-transparency, 22 December 2016; Journal Official Special N°13, 15 October 2016.

^[iv] See various articles in a Special Issue of the Journal of Human Rights Practice forthcoming, 2019.Open Society Justice Initiative (OSJI). 2018. Strategic Litigation Impacts. Insights from Global Experience, Open Society Foundations, New York.

^[v] E.g. Cameroon’s Inter-Ministerial Committee for monitoring the implementation ofrecommendations of the regional and international mechanisms, see R. Murray and C. de Vos, ‘Behind the State: domestic mechanisms and procedures for the implementation of human rights treaty body decisions’, Journal of Human Rights Practice, forthcoming 2019. Sometimes ‘National Mechanisms for Implementation, Reporting and Follow-up’ (NMIRF) or similar have this remit, see OHCHR, National Mechanisms for Reporting and Follow-up. A Practical Guide to Effective State Engagement with International Human Rights Mechanisms, OHCHR, New York and Geneva, 2016, HR/PUB/16/1; OHCHR, National Mechanisms for Reporting and Follow-up. A Study of State Engagement with International Human Rights Mechanisms, New York and Geneva, 2016, HR/PUB/16/1/Add.1; Universal Rights Group, Glion, Human Rights Dialogue, 2016, Human Rights Implementation, Compliance And The Prevention Of Violations: Turning International Norms Into Local Reality, Glion III, Universal Rights Group, 2016; Universal Rights Group, The Fifth Glion Human Rights Dialogue: The Place of Human Rights in a Reformed United Nations, Geneva, 2018.

^[vi] C. Sandoval, P Leach and R Murray, ‘Monitoring, cajoling and promoting dialogue – what role for supranational human rights bodies in the implementation of individual decisions?’, Journal of Human Rights Practice, forthcoming 2019.