Posts

Firstly, a belated happy near year to all our Monitor readers!

In this first post of the year, I wanted to highlight something that I hope many readers have already read- the recently released Joint Law Report 2019. The Joint Law Report is a new venture from the African Court on Human and Peoples’ Rights, Inter-American Court of Human Rights and European Court of Human Rights. This product is exactly what it sounds like; a review of the most important 2019 cases from the African Court, Inter-American Court and European Court. In and of itself, this report is notable as the first of its kind, providing rich pickings for legal practitioners, activists and researchers who can use it to quickly review and understand case law from 2019 across three regional human rights courts.

But over and above the Joint Law Report’s obvious use, I wanted to recognise the cooperation required for a product like this. Put simply, cooperation across three courts, especially the first one, is hard. This is a great sign of a burgeoning recognition between regional human rights courts that they are going to be most effective when they work together. Rather than operating in self-contained silos, these courts, not only referencing each other’s case law, but perhaps equally as importantly talking to each other outside the confines of judicial decision making should not only be welcomed but encouraged. The more these courts talk to each other, the more they can explore and share concerns, difficulties and issues. This can in turn improve their work, ultimately leading to better human rights protection for everyone under the jurisdiction of the three courts. I hope this becomes an annual product, not only assisting in disseminating leading caselaw, but keeping the courts talking.

You can find the report here

Sunday, 22 November 2020, marks a year since Tanzania withdrew its special declaration under article 34(6) of the Protocol. As a result, as of next week, individuals and NGOs cannot bring new cases directly to the African Court. 

The withdrawals in late 2019 by Tanzania, and Benin and Côte d’Ivoire in mid-2020, mark an important moment in the Court’s history. Without individual access, the Court could find itself in short supply of cases. That is not to say there aren’t human rights issues in the AU that deserve attention, but rather that jurisdictional barriers remain between victims of human rights abuses and the Court.

The steep rise of withdrawals has spurred the publication of a number of pieces that analysed the withdrawals and their consequences. The Court has also added a new section to its website this year: An overview of which States have submitted (and withdrawn) special declarations (available here). In this post we provide an overview of some of the publications discussing the withdrawals, and encourage readers to email us with links to further blogs/publications that can be added to this list (acthprmonitor@gmail.com).  

List of publications:

Apollin Koagne Zouapet, ‘Victim of its commitment … You, passerby, a tear to the proclaimed virtue’: Should the epitaph of the African Court on Human and Peoples’ Rights be prepared?, EJIL:Talk! (5 May 2020)

Oliver Windridge, Under Attack? Under the Radar? Under-Appreciated? All of the Above? A Time of Reckoning for the African Court on Human and Peoples’ Rights, Opinio Juris (7 May 2020)

Misha Plagis and Alice Banens, Episode 24 – The Incredible Shrinking Court with Misha Plagis and Alice Banens, Asymmetrical Haircuts podcast (15 May 2020)

Nicole De Silva and Misha Plagis, A Court in Crisis: African States’ Increasing Resistance to Africa’s Human Rights Court, Opinio Juris (19 May 2020)

Tetevi Davi and Ezechiel Amani, Another One Bites the Dust: Côte d’Ivoire to End Individual and NGO Access to the African Court, EJIL:Talk! (19 May 2020)

Misha Plagis, The beginning of the end of a home-grown African Court?, Asser Blog (20 May 2020)

Sègnonna Horace Adjolohoun, A crisis of design and judicial practice? Curbing state disengagement from the African Court on Human and Peoples’ Rights, African Human Rights Law Journal (2020) Vol. 20, No 1, pp. 1-40.

Nicole De Silva, Individual and NGO Access to the African Court on Human and Peoples’ Rights: The Latest Blow from Tanzania, EJIL:Talk! (16 December 2019)

Amnesty International, Joint Statement Condemning Tanzania’s Withdrawal of Individuals Access to the African Court, 2019

Oliver Windridge, Assessing Rwexit: the impact and implications of Rwanda’s withdrawal of its article 34(6)-declaration before the African Court on Human and Peoples’ Rights, African Human Rights Yearbook, 2018, Vol. 2, pp. 243-258.

* Correction: An earlier version of this post published on 12 November 2020 claimed the withdrawal would take effect on 14 November 2020, in line with the information on the Court’s website. However, according to the Court’s decision in Andrew Ambrose Cheusi v. Tanzania (para. 39), the withdrawal will only take effect on 22 November 2020, 12 months after Tanzania deposited its withdrawal with the Chairperson of the African Union Commission (on 21 November 2019). We have, therefore, amended this post to reflect the Court’s decision instead.

One of this week’s contribution is a collaboration between William and Martin. William Hamilton Byrne is a PhD Fellow at iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts, University of Copenhagen. Martin Lolle Christensen is a PhD Fellow at the European University Institute, Florence.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, ‘ECHR’) was adopted by the State parties of a newly founded international organization, the Council of Europe, on 4 November 1950. Described almost universally in terms of its successes, the European Court of Human Rights (hereinafter, the European Court) has grown from the humble origins of sporadic adjudication by the European Commission for Human Rights against a small number of Western European States to a complex bureaucracy of compulsory adjudication that covers the large part of geographical Europe, with over 10,000 issued judgments, and 4 new cases registered per day.

Since 1998, the European Court has been the centre of the European system for human rights protection as the adjudicator of rights claims under the Convention. The ECHR contains a structure and content that is not dissimilar to the African Charter. The ECHR (as amended by Protocol 11) is comprised of three parts.  Articles 2-18 contain a list of rights and freedoms, supplemented by a number of protocols that provide for additional rights and freedoms.  Articles 19-51 provide for the operation of the European Court, Articles 52-59 contain miscellaneous provisions. 

SOURCES AND INTERPRETATION

The rights and freedoms contained in the ECHR are generally classified as civil and political rights. These include the classic fundamental freedoms, such as the right to life (Article 2), the prohibition of torture (Article 3) and the right to liberty and security (Article 5), as well as rights that have proven to be tremendously important in modern democratic societies, such as the right to privacy (Article 8). Unlike the African Charter, the ECHR does not provide for social, economic, or cultural rights, these are the subject matter of a separate treaties in the Council of Europe, such as the European Social Charter.

The Court has developed principles of interpretation that it applies to the ECHR. Firstly, the principle of effectiveness, by which ECHR rights are interpreted in a manner that renders their exercise ‘real and effective.’ Secondly, the ‘living instrument’ doctrine, by which the ECHR is interpreted in accordance with present standards, and relatedly, whether a ‘European Consensus’ exists on a matter in question. Finally, the ‘margin of appreciation,’ granting State Parties leeway in their implementation of the ECHR, which has become increasingly prominent in light of a greater emphasis on subsidiarity in recent years by which the Court affords some degree of leeway to States in their implementation of the rights and obligations that are contained in the Convention.

The Convention does not explicitly mention the sources of law to be applied by the Court in deciding a dispute under the terms of the treaty. Article 32 provides that ‘(t)he jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols…’. This is generally understood to mean that the primary source of law for the Court to apply is the treaty itself and its accompanying protocols. The Court thus makes reference to its own treaty in every single case, and also, in this respect, how it has previously been interpreted in its own case law. The Convention does include a ‘Most Favourable Treatment Clause’ in Article 53, which states that the convention cannot be interpreted to derogate or construed to avoid any other commitments to human rights that the member states is a part of, and so connects the protection in the ECHR to other relevant international human rights treaties. This clause is rarely used however.

It is not the convention itself but the aforementioned interpretive principles that the Court utilizes to refer to external sources. Through the principle of effectiveness and evolutive interpretation, the ECtHR may find inspiration in external sources of law and the practice of other international courts. Likewise, the general rule of interpretation in international law found in Vienna Convention on the Law of Treaties allows for the systemic integration of any relevant rule of international law applicable between the parties (VCLT art. 31.3.c.). This general rule of interpretation has often been acknowledged by the European Court. As the Court has said, the convention cannot be interpreted in a vacuum (Loizidou v. Turkey para. 43).

The Court has made reference to a number of different legal sources to interpret the content of the Convention. The circumstances in which the Court will draw on external legal materials remains disputed, for it has not expressed a clear methodology for doing so.  Evidence suggests that the Court refers to ‘external sources’ in approximately 70% of its cases. In this context, the Court has relied on a variety of treaties and soft law instruments. However, it has been argued that circumstances in which it relies on external sources to expand the interpretation of the Convention are quite rare. Indeed, the evidence suggests that the Grand Chamber of the Court cites external sources to support, on average, only 1.5 arguments in a case. (See Dorothea Staes, When the European Court of Human Rights refers to external instruments: Mapping and justifications, PhD thesis, Université Libre de Bruxelles and Université Saint- Louis, 2017)

THE AFRICAN AND EUROPEAN SYSTEMS

The African Human Rights System under the auspices of the African Union is not a young system, with the Banjul Charter coming into effect in 1986, and the African Commission in 1986. However, the European Court did not start referring to the African system until this decade, although the practice of referring to a wide number of relevant international material started much earlier.  To this date, the European Court has referred to the African Charter in 19 judgments and the African Commission’s reports and declarations in 26 judgments (including dissenting opinions). The references to the African Commission must be said to be of greater value for the development of trans-regional judicial dialogue, for through these references, the European Court recognizes not only a legal instrument, but also the legal reasoning of its African peers. The references are primarily to point to the existence of a broad consensus of a right beyond Europe, and thereby highlights the coherence of an international human rights jurisprudence. While the European Court has not yet cited the emerging jurisprudence of the African Court, there is still dialogue between the regional institutions, including visits and exchanges of judicial experiences, which is meant to foster judicial cooperation between the two courts. The institutions also exchange new legal materials on a formal basis, including recently issued case law.

Arguments for transnational judicial dialogue suggest that this is not a one-way street. That is, there is no reason why the African Court should also not refer to jurisprudence of the European Court when it seeks to interpret the African Charter in its own cases. After all, many of the provisions in the Charter are similarly worded to similar provisions in the ECHR. In fact, early evidence suggests that, of 62 finalized cases, the African Court has referred to the European Court in some 14 cases, primarily in judgments on the merits, and particularly when delving into new areas of jurisprudence. However, this is the subject of a separate blog post in this series: see here. Also see, for example, judicial dialogue organised by the African Court.

CONCLUSION

In conclusion, it can be said that it remains the case that the extent of cross-fertilization has thus far been hindered by the limited number of cases in the docket of the African Court. However, early signs suggest that the future looks promising. It is hoped that this process of trans-regional judicial dialogue by way of cross reference between cases will continue unabated. The African Court will undoubtedly be able to seek guidance from the vast body of ECHR jurisprudence dealing with substantially similar rights and freedoms that are contained in the African Charter. As the European Court enters into new territory not foreseen by the drafters of the ECHR, such as issues arising from people’s rights, it should have a lot to learn from the African Court too.

Mónica Leonardo (LL.M.) is a Guatemalan attorney specializing in human rights. She holds a law degree from Universidad Rafael Landívar in Guatemala and a Master of Laws degree from Georgetown University, in Washington, D.C., where she attended as a Fulbright Scholar. She is a proud alumna of Pearson United World College and a member of the Salzburg Global Seminar. She has worked as a consultant for United Nations agencies, USAID and GIZ, international NGOs and grassroots organizations. Mónica has kindly written a piece for this special series on the judicial dialogue between regional human rights courts from the perspective of the Inter-American system.

The Inter-American Court of Human Rights is one of three regional human rights tribunals, together with the African Court of Human and Peoples’ Rights and the European Court of Human Rights. While the judicial dialogue between the former two and the latter has enriched their respective jurisprudences, there has been a limited cross fertilization between the Inter-American and the African Human Rights systems. While treaties, instruments and legal traditions differ, the basic principles underlying them, in particular the protection of human rights and human dignity, form a common ground. Legal reasoning in respect of the application of these principles in one system can be a source of inspiration in another, notwithstanding their differences. Because of this, the African Court of Human and Peoples’ Rights can look at the human rights principles established by the specialized regional bodies in the Americas, to enable the circulation of a common understanding of fundamental rights.

THE OAS

The American States, in the framework of the Organization of American States, adopted a series of international instruments that have become the foundation of a regional system of human rights promotion and protection, known as the Inter-American System for the Protection of Human Rights. This system recognizes and defines the rights enshrined in those instruments, and establishes obligations with the purpose of promoting and protecting such rights.

The Inter-American System was formally started with the passing of the American Declaration of the Rights and Duties of Man in 1948. Additionally, the System includes other instruments, most prominently, the American Convention on Human Rights, an international treaty that contemplates the rights and liberties that must be respected by States Parties and establishes the Commission and Court as organs competent to hear issues regarding the compliance of agreements undertaken by States Parties to the Convention. The Convention has two additional protocols: The first is the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, or “Protocol of San Salvador,” and the second, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. Other instruments are the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women; and the Rules of Procedure and Statutes of its organs.

ORGANS OF THE OAS

The Inter-American System of Human Rights is comprised of the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights. The primary function of the Commission is to promote the observance and defense of human rights and serve as an advisory body to the Organization of American States in such matters. On the one hand, the Commission has competencies with political ramifications, among which special emphasis should be given to the occurrence of visits in loco and the preparation of reports about the human rights situations in Member States. On the other hand, it undertakes functions with a quasi-judicial dimension. It is via this latter form of competence that it is able to receive denunciations of individuals or organizations relating to human rights violations, examine these petitions, and adjudicate cases with the assumption that they comply with admissibility requirements.

Among its most notable achievements is the 1978 report denouncing human rights violations commit­ted by the Anastasio Somoza regime in Nicaragua and the 1980 report on Argentina that called international attention to systematic and massive abuses in that country, particularly the kidnapping and forced dis­appearance of thousands of opponents to the mili­tary government that ruled from 1976 to 1983. A 1998 site visit to Peru led to a groundbreaking report that accurately detailed, for the first time, the precarious situation of the rule of law under the government of then-President Alberto Fujimori.

The Inter-American Court is an autonomous legal institution whose objective is to interpret and apply the American Convention. The Inter-American Court exercises a contentious function, in which it resolves contentious cases and supervises judgments; an advisory function; and a function wherein it can order provisional measures.

Under the American Convention, only States Parties and the Commission have the right to submit a case to the Court. Therefore, the Court cannot entertain petitions submitted by individuals or organizations. As such, individuals or organizations that believe a situation exists in violation of the Convention and wish to use the Inter-American System must direct their complaints to the Inter-American Commission, which is competent to hear petitions presented by any person, group of persons, or legally recognized non-governmental entity that may have reports or complaints of violations of the Convention by a State Party. The Court is competent to hear any case submitted to it with regards to interpreting and applying the Convention, provided that the States Parties in the case have recognized its contentious jurisdiction. Each State Party can, at the time of formalizing its instrument of ratification or adhesion to the American Convention, or at any other prior time, declare that it recognizes the jurisdiction of the Court as an ipso jure obligation.

The strengthening of the case system has not only allowed human rights advocates to secure justice for individual petitioners, but to facilitate the structural changes needed to prevent future violations. In several cases, most notably Barrios Altos, the Inter-American Court of Human Rights concluded that amnesty laws for serious human rights viola­tions committed during the military dictatorships were incompatible with the Inter-American Convention on Human Rights. In 2005, the Supreme Court of Justice of Argen­tina cited these Court decisions as a legal precedent for declaring unconstitutional the amnesty laws approved in the mid-1980s that had ended the pros­ecution of military officers that committed crimes against humanity. Following this decision, cases against people accused of serious human rights vio­lations during the dictatorship were opened for the first time in Argentina. Similarly, in Peru, the Attor­ney General issued a resolution requiring all prosecu­tors who had participated in the amnesty processes to request that their respective courts comply with the sentence by the Court. These decisions are prob­ably the most important in the Inter-American sys­tem. By eliminating impunity for violations that cost tens of thousands of lives, they strengthened the rule of law across the region.

THE FIRST CASE: VELÁSQUEZ

The States parties to the American Convention on Human Rights “undertake to respect the rights and freedoms recognized [therein] and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination” on certain cited grounds (art. 1). These undertakings have been interpreted by the Inter-American Court of Human Rights in particular in its first case, Velásquez, which concerned the disappearance and likely death of Mr. Angel Manfredo Velásquez Rodríguez, a student at the National Autonomous University of Honduras. The ruling marked the beginning of the Court’s jurisdictional activity, and also greatly contributed to the development of international law on human rights. It established the jurisprudential basis for interpreting the obligation to respect and guarantee human rights, set forth in Article 1 of the Inter-American Human Rights Convention and conceptualized the forced disappearance of people as a crime involving multiple violations of the most fundamental rights established in the Convention. This case has been cited by the African Court on Human and Peoples’ Rights in the cases of Rev. Christopher R. Mtikila v Tanzania, Kennedy Owino Onyachi and Charles John Mwanini Njoka v Tanzania, and Actions Pour la Protection des Droits de l’Homme(APDH) v Côte d’Ivoire.

In the view of the Inter-American Court the obligation to respect the rights and freedoms recognized in the Convention implies that “the exercise of public authority has certain limits which derive from the fact that human rights are inherent attributes of human dignity and are, therefore, superior to the power of the State” [Velásquez, para. 165]. The obligation to “ensure … the free and full exercise of those rights and freedoms” thus “implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation” [Velásquez, para. 166].

The Court added, however, that “the obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation — it also requires the Government to conduct itself so as to effectively ensure the free and full exercise of human rights” [Velásquez, para. 167].

As to the issue of prevention, the Court specified that “the State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation” [Velásquez, para. 174]. This legal duty to prevent human rights violations would moreover include “all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages” [Velásquez, para. 175]. As defined by the Inter-American Court of Human Rights, the legal duty of the States parties to the Convention to “respect” and to “ensure” is multi-faceted and goes to the very heart of the entire State structure, including the particular conduct of the Governments themselves.

INDIGENOUS PEOPLES’ RIGHTS

In the case African Commission on Human and Peoples’ Rights v Kenya, the African Court of Human and Peoples’ Rights cites several of the cases that the Inter-American Court of Human Rights has adjudicated on the matter of indigenous people’s rights.

The inter-American system of human rights has evolved from a vision of the affairs of indigenous peoples with a protectionist orientation, towards a perspective that seeks the effectiveness of the protection of the rights of indigenous peoples based on equality and non-discrimination.

The first approach of the Inter-American Commission on Human Rights was to consider indigenous peoples as a human group that had to be “protected.” In a second approach, the IACHR states that the notion of minorities developed within the scope of the United Nations was applicable to indigenous peoples and, therefore, the mechanisms established in international human rights law for these groups should be used. The third stage, in force until now, arises with the Commission’s Report on “The situation of Indigenous Peoples in the Americas”, and is based on the principle of equality and non-discrimination in the enjoyment and exercise of the rights that places indigenous peoples as holders of general rights based on their exclusion situation and the cultural peculiarities of which they are holders.

Based on this approach, the jurisprudence of the Inter-American Court of Human Rights in indigenous matters is based, in particular, on the sentences handed down in the Mayagna (Sumo) Awas Tigni Community case, and evolved further with the issuance of the judgment in the case of the Kaliña and Lokono Peoples.

To resolve contentious cases, the Inter-American Court of Human Rights has incorporated the standards developed in ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries to interpret the rights recognized in the American Convention on Human Rights. This was done in the case of Comunidad Mayagna (Sumo) Awas Tigni, in which the Inter-American Court of Human Rights recognized that understanding property rights in the traditional sense, did not consider the cultural peculiarities of exercising that right in the case of indigenous peoples. Therefore, through an evolutionary interpretation, considering the current state of the subject in domestic legislation and, according to the object and purpose of the treaties, the Inter-American Court of Human Rights understood this right in its collective dimension, enshrining the importance of the indigenous custom. In addition, in the case of Yakye Axa, the Court complemented this interpretation, using the content and scope of the right to property in ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries:

“In analyzing the content and scope of Article 21 of the Convention in the present case, the Court will take into account, in the light of the general rules of interpretation established in Article 29 thereof and as it has done previously, the significance special of communal ownership of ancestral lands for indigenous peoples, including to preserve their cultural identity and transmit it to future generations, as well as the steps taken by the State to fully realize this right (…)

In the present case, when analyzing the scope of the aforementioned Article 21 of the Convention, the Court considers it useful and appropriate to use other international treaties other than the American Convention, such as ILO Convention No. 169, to interpret its provisions of agreement. to the evolution of the inter-American system, considering the development experienced in this matter in International Human Rights Law. ” [para’s 124 and 127]

The Inter-American Court of Human Rights reiterated this doctrine in the Saramaka and Sawhoyamaxa Indigenous Community cases.

In the case of the Kichwa Indigenous People of Sarayaku, the Inter-American Court of Human Rights analyzed the right to cultural identity in light of ILO Convention 169, highlighting the importance of this right for the enjoyment and exercise of the rights of indigenous peoples.

Additionally, the Convention has also been used as a tool to complement the obligations of the State and fill gaps or gaps in the catalogs of rights. For example, when analyzing cases where rights with a high performance content are compromised, it ruled that the situation of special vulnerability in which indigenous peoples find themselves requires that special measures be taken by States. In this sense, the general obligations of the State are read in the light of the international corpus iure for the protection of the rights of indigenous peoples:

“In the present case, the Court must establish whether the State generated conditions that exacerbated the difficulties of accessing a dignified life of the members of the Yakye Axa Community and if, in that context, it adopted the appropriate positive measures to satisfy that obligation, that take into account the situation of special vulnerability to which they were taken, affecting their different way of life (systems of understanding of the world different from those of Western culture, which includes the close relationship they have with the land) and their project of life, in its individual and collective dimension, in the light of the existing international corpus juris on the special protection required by members of indigenous communities, in the light of what is stated in article 4 of the Convention, in relation to general duty of guarantee contained in article 1.1 and with the duty of progressive development contained in article 26 thereof, and of articles 10 (Right to Health); 11 (Right to a Healthy Environment); 12 (Right to Food); 13 (Right to Education) and 14 (Right to the Benefits of Culture) of the Additional Protocol to the American Convention on Economic, Social and Cultural Rights, and the relevant provisions of ILO Convention No. 169.” [Yakye Axa, para. 163]

Additionally, ILO Convention 169 has been used to incorporate additional obligations to those contained in the American Convention on Human Rights, such as in the case of the right to consultation and participation.

FUTURE OUTLOOK

Other instances where the African Court of Human and Peoples’ Rights has sought the guidance of the Inter-American Court of Human Rights deal with issues of freedom of expression, but many more can be explored.

Over the last week, observers of the African Court on Human and Peoples’ Rights (African Court) have been gripped as news of Tanzania’s possible withdrawal of its Additional Declaration pursuant to Article 34(6) of the African Court Protocol emerged. At the time of writing, I haven’t seen any official statement from the African Court on this, but we now have a few press articles, plus a statement from Amnesty International denouncing the move. Given the lack of pushback from the African Court and what seems to be quotes from Tanzanian officials confirming the withdrawal, it appears that the withdrawal has indeed taken place.

In this post I want to explore a few issues relevant to the withdrawal based largely on correspondence I’ve had over the last week with people interested in Tanzania’s withdrawal and wanting to know more. Its again worth emphasising that the following is based on my understanding that Tanzania is simply withdrawing its Article 34(6) Additional Declaration with no changes/withdrawals to other related instruments.

What is the Additional Declaration?

A good place to start for those who may be new to the African Court. I go into a lot of detail on how individuals can access the African Court, in an article I wrote for the Wisconsin International Law Journal. But in short, we have three relevant instruments. First, we have the African Charter on Human and Peoples’ Rights (African Charter). The African Charter contains human and peoples’ rights that many will be familiar with, for example the right to fair trial (Article 7) and the right to life (Article 4). Every AU member state, apart from Morocco, has ratified the African Charter. The African Charter makes provision for the African Commission of Human and Peoples’ Rights (African Commission), but not the African Court; this is where there second instrument come in. The African Court Protocol is an additional instrument that essentially creates the African Court and allows AU member states to participate with it. Importantly, when AU member states ratify the African Court Protocol it allows cases to brought before the African Court by AU member states, the African Commission and Intergovernmental organisations. What ratification of the African Court Protocol does not do, is allow individuals or NGOs to directly petition the African Court. There is however a way to do this; an AU state must sign a declaration as found in Article 34(6) of the African Court Protocol, often referred to as the “Additional Declaration” or sometimes the “Special Declaration”. The wording of the Additional Declaration may not be long but it is very powerful. It allows individuals and NGOs to directly bring cases against the state, without having to go through the African Commission or persuade other states or intergovernmental organisations to bring a case on their behalf. Tanzania signed the Additional Declaration in March 2010, and since then Tanzanians and Tanzanian NGOs have been able to bring cases directly to the African Court alleging Tanzania has violated their rights as found under the African Charter or other international human rights instruments ratified by Tanzania. What we understand is that Tanzania has not withdrawn from the African Court entirely, but withdrawn its Additional Declaration.

Can Tanzania Do This?

Yes. This is not the first time this has happened. Last year Rwanda withdrew its Additional Declaration. I wrote an article on this for the African Human Rights Yearbook that is available here. Simply put, Rwanda applied to withdraw its Additional Declaration as it felt that persons accused of genocide-related crimes were using the African Court inappropriately. Putting the rights and wrongs of this argument to one side, the African Court considered the notion of withdrawal and found that Rwandan could indeed withdraw its Additional Declaration (just as a state is free to sign the Additional Declaration, it is also free to withdraw it), albeit with a 12 month notice period.

What Does this Mean for Tanzania?

Its important to note the 12 month notice period, or “cooling off period”. I have seen several reports on Tanzania’s withdrawal that fail to mention this crucial aspect of the Rwandan case. For Rwanda, this meant that the African Court would continue to accept cases relating up to one year after it withdrew its Additional Declaration. Whilst we have yet to receive all the information in the Tanzanian situation, I see no reason on the information I have seen why the same would not apply in this case. Reports tell us Tanzania submitted its withdrawal on 21 November 2019. This would mean applicants would have to submit applications by 21 November 2020.

What Does this Mean for the African Court?

We are going to go into more details of the potential wider ramifications of Tanzania’s withdrawal over the coming weeks on The ACtHPR Monitor, but it is worth flagging right now that (a) the African Court is based in Arusha, Tanzania and (b) that a large majority of cases relate to Tanzania. Whilst there is no reason I am aware of why Tanzania cannot continue to host the African Court even if it is not fully signed up to it, the optics are obviously difficult. In terms of the large majority of cases relating to Tanzania, as I mention above, based on the Rwanda precedent, all current cases on the African Court’s docket remain, as will all future cases for the next 12 months. This means the African Court is likely to rendering judgements relating to Tanzania for a while yet.

Can This Decision be Reversed?

We are hearing that there efforts at the UN level to try and persuade Tanzania to reverse its withdrawal- lets see what happens.

When Can We Expect Further Information?

The issue of timing is one I raised in my article analysing Rwanda’s withdrawal its Addition Declaration. In that case, the decision to impose a 12 month cooling-off period appeared to be handed down some six months after the withdrawal notice was submitted. The delay in part because the matter was litigated extensively. In effect, this appeared to mean that the notice period was only six months (the remainder of the 12 month notice period after the decision was rendered) putting prospective Rwandan applicants at an apparent disadvantage. Given that the issue of if/how long a notice period exists has now been considered, it is hoped the African Court can act quickly to clarify the position in this new case. The bottom line; unless told otherwise, prospective Tanzanian applicants have until 21 November 2020 to file cases before they will lose the opportunity for the foreseeable future.

As I say, we will have further posts in the coming weeks on this, but hopefully this serves as a starting point.

Just a short post to highlight a really interesting new Amnesty report. The publication, entitled “The State of African Regional Human Rights Bodies and Mechanisms 2018-2019” is an important review of the main African Union-related human rights entities; the African Court on Human and Peoples’ Rights (ACtHPR), the African Commission on Human and Peoples’ Rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC). The report gives a fascinating overview of all three human rights organs, and whilst it does not go into great analysis of individuals decisions (you can get that here at The Monitor!) it does provide invaluable assessment of their operations and picks out some interesting trends, both positive and negative.

Equally welcome is Amensty’s declaration that the release of this kind of report will be an annual event, with publication anticipated every October. An annual report of this kind, when done well as appears to be the case here, can only be a good thing; providing much needed analysis and assessment of both the African Court and its human rights cousins, the ACHPR and ACERWC. You can download the report here.

I encourage all our readers to have a look!

Kira has been supporting Oliver this summer, and as part of her internship contributed this great post for the Monitor! Kira Benton is a candidate for the degree of Doctor of Jurisprudence (J.D.) at Vanderbilt University Law School and holds undergraduate degrees in Anthropology and Economics from the University of South Florida.  She received the Ones W. Polk II International Studies Stipend to help support her internship at the Monitor this summer. 

Introduction

On 28 March 2019, the Court released its judgement in the case of Dexter Eddie Johnson v. Republic of Ghana, including a key finding on admissibility.The case is notable for several reasons. This was the first case against Ghana decided before the African Court of Human and Peoples’ Rights (“African Court”) and was the first time that an application had asked the African Court to consider a challenge to the mandatory application of the death penalty. Unfortunately, the African Court’s jurisprudence on the mandatory death penalty remains unestablished, as the African Court did not reach a decision on the merits of the case. With two judges dissenting, the African Court held that the case was inadmissible as Mr. Johnson had already brought his case to the United Nations Human Rights Committee (UNHRC) and despite Ghana’s failure to comply with the UNHRC’s decision, which found that the mandatory application of the death penalty constituted an arbitrary deprivation of life in violation of Article 6(1) of the ICCPR.

The Facts

The Applicant in this case was Dexter Eddie Johnson, a dual citizen of Ghana and the United Kingdom who is currently on death row in Ghana. Mr. Johnson was sentenced to death following his conviction for the murder of an American citizen in the Greater Accra region of Ghana in May 2004. Represented by counsel from The Death Penalty Project, Mr. Johnson filed his application to the African Court on 26 May 2017.

In his application, Mr. Johnson argued that the mandatory imposition of the death sentence for murder, without any consideration of the nature of the offence or the perpetrator, violated his right to life under Article 4 of the African Charter on Human and Peoples’ Rights (“African Charter”). He further argued that the imposition of the death penalty without any allowance for judicial discretion at the trial or appellate level violated the prohibition of cruel, inhuman or degrading treatment or punishment under Article 5 of the African Charter and the right to a fair trial under Article 7 of the African Charter, and thus also violated Article 1 of the African Charter. He also submitted that Ghana had violated his rights under the ICCPR, namely the right to life under Article 6(1) of the ICCPR, the prohibition on inhuman punishment under Article 7 of the ICCPR, the right to a fair trial under Article 14(1) and the right to a review of a sentence under Article 14(5) of the ICCPR, and the Universal Declaration of Human Rights (UDHR), namely the right to life under Article 3 of the UDHR and the prohibition of cruel, inhuman or degrading treatment or punishment under Article 5 of the UDHR. While Ghana has implemented a de facto moratorium on the death penalty since 1993, Mr. Johnson submitted this did not have a bearing on his application.

Provisional Measures

Mr. Johnson’s application requested that provisional measures be issued ordering that (i) Ghana not execute Mr. Johnson while his application remained pending and (ii) Ghana should report to the Court within 30 days of the order on its implementation. The African Court issued such measures on 28 September 2017, extending Ghana’s response time to 60 days. The African Court followed its previous case law on provisional measures but noting that to order provisional measures, it needed to satisfy itself prima faciethat it had jurisdiction, which it did by noting that the case concerned both articles of the African Charter and of other relevant human rights instruments, namely the ICCPR and UDHR, and that Ghana is a party to the African Charter, the Protocol to the African Charter on Human and Peoples’ Rights (“the Protocol”) and the ICCPR and had deposited an instrument in 2011 allowing the Court to receive cases from individuals and NGOs. 

The African Court also discussed the standard set forth in Article 27(2) of the Protocol and Rule 51(1) of the Rules of Court (“the Rules”) for the issue of provisional measures, noting that it has the power to order provisional measures “in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons. . .” and “. . .which it deems necessary to adopt in the interest of the parties or of justice.” (See Provisional Measures Decision, para.14). The African Court stated that, despite Ghana’s de facto moratorium on the death penalty, the position of Mr. Johnson on death row created a situation of extreme gravity and urgency presenting a risk of irreparable harm to Mr. Johnson, and thus found that the situation required provisional measures pending a decision on the application. Four judges dissented in part from the order in two separate opinions, both submitting that the 60-day response period which Ghana had been allowed was too long and showed inconsistency with other orders for provisional measures granted by the African Court.

The Judgement 

1. Jurisdiction

In its 28 March 2019 judgement, the African Court first considered the issue of jurisdiction. The African Court based its material jurisdiction on the application’s invocation of the African Charter, ICCPR and UDHR. It found that it had personal jurisdiction based on Ghana’s status as a State Party to the Protocol and Article 34(6) declaration allowing individuals to bring cases to the Court and referenced Norbert Zongo v. Burkina Faso (discussed here) to hold that it had temporal jurisdiction on the basis that the alleged violations are continuous. In other words, although Mr. Johnson was convicted and sentenced prior to Ghana’s deposition of the Article 34(6) Additional Declaration, the ongoing nature of the harm allowed the African Court to hear the case. The African Court found that it had territorial jurisdiction because the alleged violations took place in Ghana, a State Party to the Protocol. Finding that it had material, personal, temporal and territorial jurisdiction, the African Court held that it had jurisdiction to hear the case. 

2. Admissibility

Ghana did not raise any objections to the admissibility of the application, but the African Court, suo motu, undertook a discussion of the application’s admissibility. The African Court accepted that the application met the admissibility requirements under Article 56(1) to 56(6) of the African Charter, as it: (i) disclosed the applicant’s identity, (ii) asked the African Court to determine whether Ghana was complying with its obligations relating to the applicant under the African Charter, (iii) was not written in disparaging language, (iv) was not based exclusively on information disseminated through the media, (v) was sent after the applicant had exhausted local remedies, as Mr. Johnson’s appeal had been dismissed by Supreme Court and (vi) was filed within a reasonable time after the exhaustion of local remedies.

After dismissing most of the grounds on which challenges to admissibility may be brought, the African Court turned to focus on the provisions of Article 56(7) of the African Charter, which states that applications must “not deal with cases which have been settled . . . in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.”  (Judgement, para 46). The Court identified three conditions which must all be “convergen[t]” for a case to be considered “settled”: (i) the identity of the parties, (ii) the identity of the applications or their supplementary or alternative nature or whether the case flows from a request made in the initial case, and (iii) the existence of a first decision on the merits.  (Judgement, para 48).

Walking through this framework, the African Court noted that it was not in dispute that Mr. Johnson had filed both the application in the present case and the communication against Ghana before the UNHRC. It also noted that although the communication to the UNHRC only invoked alleged violations of the ICCPR and not provisions of the African Charter, the Charter of the United Nations, or the Constitutive Act of the African Union, the principles which were alleged to have been violated were identical to the provisions of the African Charter which Mr. Johnson had alleged that Ghana violated in the present case. It also found that, although Ghana had not implemented the UNHRC’s decision, the African Court was not precluded from finding that the matter had been settled, as the crucial factor was that there had been a decision by a body “legally mandated to consider the dispute at an international level.”  (Judgement, para 51). Therefore, it held that the matter had been “settled” by the UNHRC as set out in Article 56(7) of the African Charter. 

The African Court went on to stress that the non-binding nature and non-implementation of the UNHRC’s decision was not relevant to admissibility, emphasizing that the African Court had not dealt with cases pending before or settled by the African Commission (“the Commission”), despite the non-binding nature of the Commission’s decisions. It also noted that Mr. Johnson had chosen to file his case before the UNHRC, not the African Court, a year after Ghana’s Article 34(6) Declaration, and stressed the need to preserve the principle of non bis in idem, which prevents states from being asked to account more than once for the same alleged violation of rights. Because of this rationale, the African Court found the application inadmissible, with eight judges voting for a finding of inadmissibility and two voting against. 

3. Dissenting Opinion of Judge Rafaâ Ben Achour

Appended to the main judgement was the dissenting opinion of Judge Rafaâ Ben Achour. Judge Achour offered two explanations for his dissenting vote: (i) that the African Court should have declared the application inadmissible for failure to file within a reasonable time after the exhaustion of local remedies and (ii) that, if the African Court held that such a timeframe was in fact reasonable, the African Court should have declared the application admissible under Article 56(7) as the UNHRC’s decision did not settle the case. 

To support his first rationale, Judge Achour discussed the need for a requirement of reasonable time in filing as a safeguard and referenced the practices of the Inter-American Court of Human Rights and European Court of Human Rights, both of which are restricted to a six-month deadline from the date of exhaustion of local remedies. In contrast, the Charter has left this deadline to the discretion of the Commission and the Court, which are to consider the circumstances of each case in determining whether it has been filed in a reasonable time. Judge Achour criticized the Court’s quick acceptance that this requirement had been met, which had been contained in the same paragraph in which it had concluded that the remainder of the factors for admissibility, save Article 56(7), had been met, with no justification given for reaching the conclusion.

Judge Achour referred to other cases from the African Court’s settled jurisprudence which contained shorter delays in respect to reasonable time, submitting that in those cases the African Court had analyzed the reasons for the applicants’ delay. Referencing the case of Warema Wanganko Werema, where the African Court considered five years and five months to be a reasonable time frame, Judge Achour submitted that the African Court had been flexible in the past, but that flexibility had always been tied to the personal circumstances of the applicants, including considerations of incarceration, indigence, illiteracy and attempts to access extraordinary remedies. In Warema, the African Court considered the applicants’ attempt to utilize the review procedure of the Tanzanian Court of Appeal and determined that they had acted in a reasonable time by filing about six months after the dismissal of the review proceedings. Judge Achour then analyzed the circumstances of Mr. Johnson’s case and concluded that his circumstances did not justify the same flexibility, discussing his actions in the six years following the exhaustion of local remedies (requesting a presidential pardon and applying to the UNHRC). Judge Achour also submitted that extending the requirement of filing within a reasonable time to include a case filed six years and two months after the exhaustion of local remedies would make the requirement meaningless and discourage States from making Article 34(6) declarations.

Though Judge Achour was clear in his dissent that he would have found the application inadmissible for failure to file in a reasonable time, he then moved to a discussion of the “settlement” of the case by the UNHRC, which he submitted should not bar its admissibility. He distinguished Mr. Johnson’s case from Gombert v. Cote d’Ivoire, which the majority had cited in its majority opinion. In Gombert, the African Court found that Mr. Gombert’s case was inadmissible as it had been settled by the Community Court of Justice of the Economic Community of West African States (ECOWAS). Judge Achour focused on the distinction between the ECOWAS Court, which is a sub-regional judicial body which issues binding decisions to member states, and the UNHRC, which is a quasi-judicial body which does not issue binding decisions but rather “Views”, noting the “diplomatic and non-authoritative language” used by the Committee in “request[ing]” State action.  (Dissenting Opinion, para 23). Based on this distinction, Judge Achour stated that the case had not been settled as it had not created an obligation for Ghana, and that if the African Court held the application had been filed in a reasonable time, it should have found the case admissible and considered the merits of the case.

4. Separate Opinion of Judge Blaise Tchikaya

In addition to Judge Achour, Judge Tchikaya also rendered a separate opinion. Judge Tchikaya’s separate opinion dissented completely from the holding of the majority, stating that an exception to the principle of non bis in idem could have been made and that the decision was a setback for the development of the law.

Judge Tchikaya based his finding that an exception to the principle of non bis in idem should have been made on the claim that the African Court’s use of the principle was inappropriate and should have focused on the known exceptions to the principle instead. Focusing heavily on the need for the African Court to work for the protection of human rights, which he submitted the decision in Mr. Johnson’s case did not do, he also stated that Ghana’s actions violated multiple articles of the ICCPR, including Mr. Johnson’s right to life. Judge Tchikaya discussed A.B. v. Norway, a European Court of Human Rights case which held that when one decision has acquired the force of res judicata, an individual should be shielded from proceedings on the same matter but not from foreseeable parallel (i.e. both criminal and administrative) proceedings. Referencing the UNHRC decision in this case, which called for additional judicial proceedings, Judge Tchikaya submitted that this rationale should have applied to Mr. Johnson’s case. 

Judge Tchikaya then moved to a discussion of three reasons for raising an exception to non bis in idemwhich he states could have been applied: (i) the application to the African Court was not an “identical case” to the case before the UNHRC, (ii) that an exception was necessitated by context and (iii) that Ghana should have been ordered to comply with international human rights norms. He submitted that the cases were not identical as the application in the instant case asked for the enforcement of the UNHRC’s views and reparations for Ghana’s failure to adopt them, and that the potential violation of the right to life, already decided by one international instrument to be occurring, should have prompted an urgency causing the African Court to find an exception to the non bis in idem principle. Furthermore, he stated that Ghana’s continued non-compliance with the views of the UNHRC should prompt the African Court to render a decision on the merits, continuing to distinguish Mr. Johnson’s case from the Gombertcase by emphasizing the urgency presented in Mr. Johnson’s case as it compares with the degree of seriousness presented by the sale of commercial property at issue in Gombert. 

Conclusion and Analysis

As the first case against Ghana to be decided before the Africa Court and the first case challenging the mandatory application of the death penalty, Johnsonhad the potential to see the development of African Court jurisprudence including decisions on alleged violations of the ICCPR and non-compliance with the decisions of international human rights mechanisms such as the UNHRC. Unfortunately, the finding of inadmissibility will prevent this development, although it has provided clarification on the African Court’s interpretation of Article 56(7), which should provide some guidance to future applicants. 

Receiving a decision on the merits in this case would likely have imposed an obligation on Ghana to abolish the mandatory death penalty (assuming the Court would have followed similar reasoning to the UNHRC), which could have helped to put pressure on States with similar practices. As Judge Tchikaya made clear, it could also have established a role for the African Court as a mechanism to seek enforcement of non-binding decisions from UNHRC and other bodies and even promoted African Court cooperation with UN human rights instruments. However, while the African Court issues binding decisions, it isn’t clear that a decision from the African Court on the merits of this case would have prompted action from Ghana. As the African Court has noted in its own reporting (discussed here and in Professor Rachel Murray’s recent post), implementation of decisions continues to vary by country. As Ghana has only been the subject of few decisions by the African Court, the extent to which they will implement the African Court’s judgements remains to be seen. 

Judge Achour’s dissent raises interesting questions regarding possible limitations on the African Court’s flexibility on the interpretation of the “reasonable time” requirement. So far, the African Court has been extremely willing to take cases that have exceeded the six-month limit set by other regional human rights courts. In light of the relative nascence of the African Court and the difficulties faced by many applicants in approaching it, particularly indigence and incarceration, this flexibility has not been difficult to justify and, until Judge Achour’s dissent, had seemingly not been questioned. It will be interesting to see whether Judge Achour’s dissent predicts a change in practice or whether the African Court will continue to be relatively flexible with the “reasonable time” requirement. 

It’s also important to view Johnsonin the larger scheme of work by organizations which are working for the abolition of the death penalty. Domestic work in countries such as Malawi and Kenya has led to the rejection of the mandatory death penalty, viewed by many as a first step toward total abolition of the death penalty. Ghana’s use of the mandatory death penalty has seen specific criticism due to poor detention conditions for death row prisoners and low levels of access to legal aid, with many prisoners not knowing they can appeal their sentences or that Ghana will provide them with legal aid to do so. Of the 12 death row prisoners who filed appeals between 2006 and 2016, half were successful, as reported by Amnesty International in a report titled Locked Up and Forgotten: The Need to Abolish the Death Penalty in Ghana. While Ghana is still failing to comply with the UNHRC’s decision regarding Mr. Johnson, encouraging trends in recent years suggest that the mandatory application of the death penalty is on the decline. Whether the African Court will contribute to the jurisprudence on this issue remains to be seen, but it is possible that Mr. Johnson’s case will encourage other applicants from Ghana or Tanzania, which also retains the mandatory death penalty for murder in its domestic law.