Human Rights Litigation in Africa Under Attack - Analysis of Backlash against Regional and Sub-Regional Courts

• Author: Ayyoub Jamali, Martin Faix
• Position: University of Zurich/Palacký University, Olomouc
• Pages: 9-30

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

HUMAN RIGHTS LITIGATION IN AFRICA UNDER ATTACK:

ANALYSIS OF BACKLASH AGAINST REGIONAL

AND SUB-REGIONAL COURTS / Ayyoub Jamali, Martin Faix

Mgr. Ayyoub Jamali, PhD., BA

Postdoctoral Researcher

Institute for International Law and

Comparative Constitutional Law,

University of Zurich

Rämistrasse 74/36

8001 Zürich, Switzerland

hazhar.jamali@gmail.com

ORCID: 0000-0002-3756-3718

JUDr. Martin Faix, PhD., MJI

Senior Lecturer and Head of the

Centre for International Humanitarian

and Operational Law

Palacký University Olomouc

Faculty of Law

17. listopadu 8, 779 00 Olomouc,

Czech Republic

martin.faix@upol.cz

ORCID: 0000-0003-2333-9341

The authors received financial support

from the Operational Programme

Research, Development and Education

project "Improving schematics of

Doctoral student grant competition

and their pilot implementation", Reg.

No.CZ.02.2.69/0.0/0.0/19_073/00167

13 via Palacký University Olomouc for

the research relating to this

contribution within student grant

research No. DSGC-2021-0208.

Submitted:

28 January 2023

Accepted:

16 November 2023

Published:

29 December 2023

Abstract:

Human rights values, to which international

organisations adhere, serve not only as the working premise for

achieving their goals but also constitute an inherent part of their

legal framework and judicial decisions. Established by States that

claim to share a fundamental set of values from the outset and

are committed to reflecting these values throughout their

activities, the African Union is no exception. The organisation

articulated its fundamental principles and values in its founding

Treaties, which include, among others, ‘respect for democratic

principles, human rights, th e rule of law, and good governance.’

Over time, various preventive, monitoring, and enforcement

mechanisms have been developed to realise these human rights

objectives in the continent. This progress includes the

establishment of the African Commission in 1987 and the

creation of the African Court in 1998, as well as the expansion of

human rights jurisdiction of sub-regional courts over time. This

article delves into the resistance faced by the judicial

mechanisms used to enforce human rights in Africa. As

demonstrated, in all cases under discussion, a State subject to an

adverse ruling of the court responded by questioning its

legitimacy and authority, advocating for institutional reforms to

weaken the fledgling human rights system on the continent. The

article highlights the similarities and differences between all

cases, illustrating that the impact of political reaction in the case

of the continental African Court and the SADC Tribunal has been

much more severe than the ECOWAS and the EACJ court. It is

argued that the institutional design of the courts, the scale of the

community, relative State power, the subject matter of the

judgment, the requirement to obtain consensus to revise the

founding treaty of the courts, and the engagement of civil

societies played crucial roles in determining the type and

outcome of backlash in the cases under discussion.

Key words: Human Rights Courts; Resistance; African Court on

Human and Peoples’ Rights; African Sub-Regional Courts; SADC;

ECOWAS; EACJ

Suggested citation:

Jamali, A., Faix, M. (2023). Human Rights Litigation in Africa Under

Attack: Analysis of Backlash against Regional and Sub-Regional

Courts. Bratislava Law Review, 7(2), 9-30.

https://doi.org/10.46282/blr.2023.7.2.337

10

A. JAMALI & M. FAIX

BRATISLAVA LAW REVIEW

Vol. 7 No 2 (2023)

1. INTRODUCTION

Human rights values to which international organisations adhere have been not

only the working premise for achieving their goals but also an inherent part of their legal

framework and judicial decisions (Buchanan, 2008; S cheppele, Kochenov and

Grabowska-Moroz, 2020). Founded by States, which claim to share a set of fundamental

values to begin with, and which they are keen on reflecting throughout their activities, the

African Union (AU) is no different. The organisation laid its fundamental principles and

values in its founding Treaties,1 which among others include ‘respect for democratic

principles, human rights, the rule of law, and good governance’.2 Over time, different

preventive, monitoring, and enforcement mechanisms have been developed to realise

these human rights objectives in the continent. This in cludes from the establishment of

the African Commission on Human and Peoples Rights in 1987 and the creation of the

African Court on Human and Peoples Rights (ACtHPR) in 19 98 to the expansion of the

human rights jurisdiction of subregional courts over time.

However, in the exercise of their jurisdiction over human rights disputes, all these

judicial bodies have come under increasing pressure and resistance from member

states. At the continental level, the African Court of Human and Peoples Rights (ACtHPR)

has faced a new form of backlash where several of its member states decided to partially

withdraw from the Court and thus limit its jurisdiction in individual communication (Faix

and Jamali, 2022). In South Africa, the Southern African Development Community (the

SADC Tribunal or the Tribunal) was de facto suspended in the aftermath of its decision

on a highly controversial case related to Zimbabwe’s land reform program (Nathan,

2013). In East Africa, the Kenyan government sought to eliminate the East African Court

of Justice (EACJ) after a decision challenging an election to a subregional legislature, the

East African Legislative Assembly (EALA) (Alter, Gathii and Helfer, 2016). A similar trend

can be observed in West Africa where the political leaders of Gambia tried to limit the

human rights jurisdiction of the Court of the Economic Community of West African

States (ECOWAS) following its decision on a case upholding the allegation of torture of

a dissident journalist (Alter, Helfer and McAllister, 2013). All these examples illustrate a

pattern of resistance against international courts in Africa that threaten to undermine the

foundation of the human rights legal system in this continent.

Although the challenges and issues of human rights law enforcement in Africa

are a common theme that run through literature and discussed by stakeholders and

academics (Cole, 2010; Daly and Wiebusch, 2018; Faix and Jamali, 2022; Murray et al.,

2017; Pityana, 2004; Ssenyonjo, 2012; Viljoen, 2018), less scholarly attention has been

paid to the comparative study of resistance to those courts in Africa that have jurisdiction

on human rights disputes. This contribution, therefore, aims to conduct a comparative

study analysing the aforesaid case of resistance to the four African regional and

subregional courts and shed light upon the causes and consequences of each case of

backlash.

The article draws on empirical, analytical, and descriptive methods. The first

substantial part of the study elaborates on the four cases of backlash against the regional

and subregional courts highlighting those case-laws which have led to the instigation of

backlash against them; section three discusses the similarities and differences across

the four cases, arguing that the variation in institutional settings explains why the

continental African Court has faced a different form of backlash compared to the

1 The EU values are enshrined in Article 2 of the Treaty on the European Union whereas the CoE values are

listed in Article 3 of its Statute.

2 Organisation of African Unity (OAU), Constitutive Act of the African Union, 1 July 2000, art. 4 (m).