Operating since 2006, the African Court on Human and Peoples’ Rights (AfCHPR) is the outcome of a long-fought battle by civil society activists – with the support of some African states – to create a judicial body to protect the rights of Africa’s most vulnerable citizens. To date, the AfCHPR’s protocol has been ratified by more than 30 African states and therefore the court can hear any claim filed by African Union institutions, member states, and most importantly, individual citizens and NGOs.
There is, however, an important caveat: individuals and NGOs are only allowed to access the court if their home countries have ratified Article 36(4) of the AfCHPR declaration. This has proved to be an important tool of accountability for human rights abuses. Indeed, of the 272 applications for proceedings filed before the court, individuals and NGOs have combined to account for 268 of them (or 98% of all the applications filed so far). As of this writing, only nine African states – Benin, Burkina-Faso, Côte-d’Ivoire, The Gambia, Ghana, Mali, Malawi, Tanzania and Tunisia – have formally ratified this article. And what is more, these seeming champions of human rights have recently lost two of its members: Côte-d’Ivoire and Benin. Both countries have questioned the court’s legitimacy and have withdrawn their support.
For Benin, the decision was mainly prompted by the court’s provisional measures issued on 17 April 2020, in the case of Sebastien Ajavon, which requested that Benin suspend the organization of municipal elections scheduled for 17 May 2020. The decision was prompted by Ajavon, a political leader currently exiled in France, who contested that he was unfairly deprived of his political right to stand as a candidate. Benin’s Minister of Justice, for his part, argued that the government’s decision to withdraw stemmed from an alleged “series of misconduct” by the court, including its interference in commercial disputes that, he argues, only Benin and other regional courts have jurisdiction over.
In the case of Côte-d’Ivoire, the conflict initially dates back to a local NGO, APDH, which filed a petition that ultimately led the court to rule that the composition of the country’s electoral commission was not fair or balanced (the election body has since been recomposed in accordance with the recommendation). Also at the core of Côte-d’Ivoire’s criticism has been a recent case involving a former speaker of the country’s National Assembly – and declared candidate in the October 2020 presidential election – Guillaume Soro. In particular, the court asked for a stay on the execution of an arrest warrant currently against Mr. Soro, for alleged “breaches of state security.” There is a clear reluctance on the part of authorities to comply with this decision – and it has further led to an ingrained sense that individual access for Ivorian citizens to the court, in light of this case, is a nonstarter.
Far from being isolated incidents, Benin and Côte-d’Ivoire are indeed following the footsteps of more authoritarian states like Tanzania and Rwanda. For Tanzania – the actual host of the AfCHPR – the country withdrew its declaration in November 2019. And Rwanda was concerned that the African Court might be used as a platform to “change the narrative” of the country’s 1994 genocide (a criminal offense under the Rwandan criminal code).
These arguments of encroaching on state sovereignty have often been used to challenge the legitimacy of similar human rights mechanisms across Africa. The SADC Tribunal is a prime example. The nascent court – which initially included individual access – was killed after judges there ruled against the late Zimbabwean dictator Robert Mugabe for his violent land expropriation program on the basis that it discriminated against the country’s white minority.
The situation we face today provides a complex, though important, opportunity for supporters of the African Court on Human and Peoples’ Rights to reflect on its existence thus far, and to plan its future accordingly. To those African leaders who are advocating “sovereignty” over respect for individual human rights, it is worth reminding them of a quote from a former U.S. president: “Africa doesn’t need strong men, it needs strong institutions.” Those institutions, including the AfCHPR, will never come close to reaching their due potential if they are constantly under attack by leaders who seem to care more about entrenching their own power rather than protecting the rights of their citizens.
Arnaud Oulepo is a research associate at the Centre of Research for International Cooperation and Development, which is located at the University Cadi Ayyadin Morocco.
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