20 years of the African Court: “States’ support is slow in coming”

JUSTICE INFO: You are one of the few international legal experts following closely the work of the African Court in Arusha. What has it achieved in its 20 years of existence?

ALICE BANENS: It is worth remembering that the African Court is a regional court, whose mandate is to ensure the protection of rights enshrined in the African Charter on Human and Peoples’ Rights. It receives complaints against States that have ratified it [34 out of 55 African states] and it can also issue advisory opinions. It has dealt with a large number of cases and issued a number of advisory opinions. To date, it has heard just over 150 cases on the merits, in which it has determined whether or not human rights violations occurred.

That is what it has done. Do we consider that to be a lot? Or not a lot? Everyone may have their opinion, but in any case it has been working, and it is true that it is not particularly well known for what it has achieved.

Can you name a few cases that have left their mark on the history of this court?

One of the first landmark cases was the Zongo case against Burkina Faso. It is fairly well known, at least in Burkina Faso, because it concerns a journalist called Norbert Zongo who was murdered in 1998.

He was found in a car with his younger brother and two of his colleagues; all four had been killed. A long battle for justice ensued, led by his family, who had got nowhere in the national courts, so they turned to the African Court. This was right at the very beginning: 1998 was the same year in which the protocol establishing the Court was adopted. It took a few years first to exhaust all legal remedies in Burkina Faso, and a few more years for the Court to become operational, and in 2014 the judgement was handed down. The judgement recognised not only that the family’s right to justice had been flouted and that the investigation had not been conducted diligently, but also that this had had an impact on the protection of journalists in Burkina Faso by instilling a climate of fear. Consequently, the Court ordered Burkina Faso to reopen the investigation, to prosecute and find those responsible, and to take measures to protect press freedom.

And that is what Burkina Faso subsequently did, including providing compensation to the family.

Is it still like that?

There are still many cases where we see States dragging their feet when it comes to implementation. In the Ogiek case, for example, Kenya has implemented very few of the measures ordered. In fact, the case returned to the Court last year, and the Court reprimanded Kenya, saying: you must do better and act more quickly.

This case concerns the Ogiek indigenous community, who live in the Mau Forest and had been evicted from it. It is a case in which the Court examined the rights of indigenous peoples across a wide range of issues for the first time, and ruled against Kenya in 2017. So here, too, it was a rather landmark case.

There is another case close to my heart, where the ruling is still awaiting implementation. It concerns a highly publicised incident involving a ship called the Probo Koala, chartered by the British company Trafigura. On arriving in Abidjan, it dumped tons of toxic waste at several sites across the capital, resulting in many deaths, illnesses, and pollution of the water and soil, amongst other things. It was an environmental scandal.

After many battles to secure justice – not only in Côte d’Ivoire, but also in European countries – this case went before the African Court. It was brought before the Court by three NGOs. Côte d’Ivoire was found guilty of failing to fulfil its obligations in this case, which concerns not only environmental law and the right to health but also the responsibility of States for the actions of private companies. So there has been significant progress on several fronts, with a whole host of measures that Côte d’Ivoire must still implement to remedy the situation.

"It is true that in terms of implementation the results are not very good, as is generally the case with many international courts. In fact, in most cases, the African Court does not receive the information it requires from the State concerned."

These rulings are not always followed up by the States concerned. But do they set a legal precedent, or inspire other legal actions elsewhere in Africa?

It is true that in terms of implementation the results are not very good, as is generally the case with many international courts. The African Court is no exception. In fact, in most cases, the African Court does not receive the information it requires from the State concerned. And so we – by which I mean civil society – find ourselves trying to monitor and advocate to find out where rulings have been implemented, where they have not, and how to exert pressure to ensure they are.

Now, are these court rulings also being used in other countries to drive progress on particular issues? I would say that remains to be seen in the longer term, but what is certain is that they are used by civil society, which treats these rulings as tools for advocacy, for example on the issue of banning the dumping toxic waste on their territory.

This can be used by other jurisdictions, where a national judge might say we are a signatory State to the African Charter and the African Court has interpreted this right in such and such a way, so we too must follow that interpretation. In other regional jurisdictions, there is an example that I also find interesting: the ECOWAS [Economic Community of West African States] Court, which regularly draws inspiration from the African Court’s rulings.

Take, for instance, the laws against vagrancy, which lead to widespread human rights violations across the continent and are a legacy of the colonial era. These laws criminalise people who are in public spaces, on the streets, either because they are homeless, or because they are casual labourers, sex workers, and so on. When a case concerning Sierra Leone was brought before it, the ECOWAS Court looked at the African Court’s ruling and stated: indeed, you must repeal this law.

So the overall picture is not all that negative. There is, after all, a section of civil society that is aware of what the African Court does and is already making use of it.

"Restricted access is one of the major problems facing the African Court and one of the major obstacles. Most of the cases brought before the Court are brought by individuals and NGOs in those few States that have granted them direct access."

But the main problem identified in the report you are publishing this Friday July 17 is access to the Court. Cases are brought before it from only a very small number of States -- in 20 years, its rulings have concerned just 11 of the continent’s 55 States. How can this be explained?

Yes, restricted access is one of the major problems facing the African Court and one of the major obstacles. To explain a little how this works: when States ratify the protocol establishing the African Court, they become a State Party and therefore a member of the African Court. They may then be subject to complaints brought by other States, the African Commission or African intergovernmental organisations.

However, for individuals and NGOs to be able to bring cases against these member states as well, there is a second step. The State must also have submitted what is known as a “declaration under Article 34.6”, which says that the State in question authorises direct access to the Court by individuals and NGOs. But whilst 34 States have so far ratified the Protocol, there are only seven against which individuals and NGOs can bring cases. This is extremely limited.

And what percentage of cases brought before the Court are initiated by NGOs and individuals?

Of all the cases before the Court, it is virtually all of them. Most of the cases brought before the Court are brought by individuals and NGOs in those few States that have granted them direct access. The African Commission, for its part, has brought only three cases. And as far as States are concerned, there has been only one complaint [by the DRC against Rwanda].

Out of more than 360 complaints, virtually all have come from civil society or individuals. I find this interesting to analyse, because the pattern varies greatly from country to country.

For example, in Tanzania, the majority of cases were brought by people in detention. Word got round in prison. When we look at Benin and Côte d’Ivoire, the vast majority of cases concern election-related issues and were brought by men in positions of power, politicians and businessmen. And I do mean men – there are virtually no women involved in these cases. If we look at Mali, word must have spread within trade unions and workers’ networks regarding the right to work.

We can therefore see that there are certain country-specific patterns regarding who has exercised the right to appeal to the African Court.

"The Commission has the power to refer cases to the African Court when it receives complaints. It is somewhat disappointing to see that the African Commission has made virtually no use of this power: only three times in 20 years."

How does the relationship between the African Commission and the Court work?

The African Charter on Human and Peoples’ Rights is the main instrument for the protection of human rights at African Union level. The Commission was established to monitor the implementation of this African Charter, with several functions within its mandate. One of these functions is quasi-judicial, as it can receive complaints, examine them and make recommendations to States. However, the Court was established to deliver binding judgments. The aim was to go a step further.

The Commission has other functions such as developing, for example, guidelines and other instruments for the protection of human rights derived from the Charter, and holding sessions twice a year at which it analyses the human rights situation in member States. It also has the right to issue appeals, alerts, carry out country visits and so on. It therefore has a mandate to monitor and promote human rights, and operates in a more political capacity.

The Commission has the power to refer cases to the African Court when it receives complaints. This power is more or less equivalent to what we saw in Europe [until the 1998 reform, there was a Commission that referred cases to the European Court of Human Rights], and which still exists in relation to the Inter-American Court of Human Rights, where a large number of cases were first brought by individuals before the Inter-American Commission.

It is somewhat disappointing to see that the African Commission has made virtually no use of this power: only three times in 20 years. It is time for it to make use of it.

In recent years, we have witnessed a trend – initiated by Rwanda, and again last year with Tunisia – whereby States that had previously granted their citizens direct access to the Court are now withdrawing that access. Isn’t that worrying?

That’s true. Over the past 20 years, 12 states have made this declaration allowing access. Of those 12, five have withdrawn: first Rwanda, in 2016; then Tanzania in 2019; Benin and Côte d’Ivoire in 2020; and, indeed, Tunisia in 2025. So, yes, some of the States that had made the declaration – and there weren’t very many to begin with – have withdrawn.

Why is that?

The common thread running through all these decisions to withdraw is quite simply that these States were unhappy with certain decisions taken by the African Court.

If we take the example of Rwanda, the declaration of withdrawal explicitly says it was because Rwanda could not have imagined that certain individuals convicted of genocide could use this avenue of appeal and bring their cases before the Court. This directly echoed a particular case where no decision had yet been made. It was really about the principle of access. It was a reaction to the fact that the complaint had been filed.

What about Tunisia, the most recent withdrawal?

Tunisia explicitly stated that they withdrew because the decisions were, in their view, politically motivated. Cases had been brought by members of civil society or political opponents, in particular against presidential decrees which granted the president full powers. There was also a case concerning the conditions of detention of certain political opponents.

Doesn’t the Court then become a barometer of a regime’s authoritarianism?

I think it is a very negative sign to see countries either refusing to make this declaration or withdrawing it. Why would a State refuse to be brought before the Court by its own citizens? If you are genuinely committed to respecting human rights, you are not afraid of being taken before the African Court.

"It is true that current trends are not very reassuring. States’ support for the Court and for the African human rights system is slow in coming. On the other hand, when it comes to the use of the Court by individuals and NGOs, we are seeing a positive trend."

With these withdrawals [of declarations under Article 34.6], is the Court not a victim of a global trend to roll back the rule of law?

It is true that current trends are not very reassuring. In terms of States’ behaviour towards the Court – whether in terms of the very low number of new ratifications, the withdrawals of declarations, or implementation, which frankly is still not being much followed up – States’ support for the Court and for the African human rights system is slow in coming.

On the other hand, when it comes to the use of the Court by individuals and NGOs, we are seeing a positive trend. During the first decade, the Court was establishing itself and drawing up its rules of procedure. People were not yet familiar with it, so not many complaints were filed. Then we saw that it was catching on. Suddenly individuals and NGOs were bringing cases before the Court, the Court was delivering judgments, and some of these judgments were very progressive, ordering increasingly detailed measures against States. We have judgments where the nature of the reparations is set out in detail, and which are very proactive with regard to States’ obligations on specific issues. There is a very recent judgment, handed down last year against Tanzania, on the rights of people with albinism. I believe this is the first judgment by an international court concerning people with albinism, across all continents.

Does the African Court deal with issues specific to the African continent?

In a way, yes. An interesting aspect of the African Charter on Human and Peoples’ Rights is that it sets out individual rights, and then there is a list of collective rights. This is a distinctive feature of the African system. There are rights of peoples, groups or communities, such as the right of peoples to freely dispose of their natural resources, to economic, social and cultural development, and so on. Consequently, we are seeing judgments on these collective rights that are relatively new within the global landscape of human rights case law.

With regard to groups and individuals, we also find the protection of nature, because there are the rights of people and individuals to a “satisfactory environment conducive to their development”, as set out in the Charter. There are also more specific issues. For example, the issue of toxic waste affects Africa far more than any other continent, because European companies come there to dump their waste.

On people with albinism, the Court has ruled that States have far-reaching positive obligations, including the distribution of sun cream and sunglasses – as this is a matter of survival for these individuals –, ensuring that children at school have the necessary aids to keep up with lessons despite their visual impairments, the obligation to carry out investigations as soon as there is an attack on them, and to take specific measures to ensure these people are properly cared for in public hospitals.

"Over the past 20 years, the Court has demonstrated that it is an independent institution, unafraid to hand down progressive rulings, even if this does not please States. That is precisely why there is a backlash from States."

In your view, is there any doubt about the Court’s political independence?

For me, this is one of its great strengths, in what it manages to achieve, within its limitations. There may well have been concerns on this matter prior to its establishment. But the judges have so far demonstrated their independence and shown that they truly fulfil their role as judges rather than as representatives of any particular State.

Moreover, if a case is brought before the Court against a State, the judge from that State recuses themselves from the case. Over the past 20 years, the Court has demonstrated that it is an independent institution, unafraid to hand down progressive rulings, even if this does not please States. That is precisely why there is a backlash from States.

Let’s conclude with a topical issue. The Democratic Republic of Congo (DRC) has just filed a complaint against Rwanda before the International Court of Justice (ICJ). Does this mean it lacks confidence in the African Court? How should we interpret this?

I may be mistaken, but I get the impression that the DRC is stepping up its attempts to address its numerous cases and grievances against Rwanda through various international forums. We see this in New York, we see it at the ICJ, we see it in Arusha. We see it, perhaps, all over the place at regional and international levels. If they are taking their cases to these courts, it is in my view because they trust them and hope to achieve something.

In Arusha, regarding this case, we are now in the second phase. We have moved beyond the admissibility issues. We are now in the written proceedings, dealing with the merits of the case. It is difficult to say when the decision will be handed down. But it is an interesting case because it is, after all, the first case in 20 years to be brought before the African Court by a State.

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