Litigating at the African Court on Human and Peoples’ Rights
Module 6: Litigating Digital Rights Cases in Africa
Snapshot of the types of cases before the African Court on Human and Peoples’ Rights
Ingabire Victoire Umuhoza was charged by the Rwandan government with:
- Spreading ideology of genocide.
- Aiding and abetting terrorism, sectarianism and divisionism.
- Undermining the internal security of a state, spreading of rumours likely to incite the population against political authorities and mount citizens against one another.
- Establishing an armed branch of a rebel movement.
- Attempting recourse to terrorism, force of arms and such other forms of violence to destabilise established authority and violate constitutional principles.
In 2012, the High Court of Kigali found the applicant guilty. This was appealed to the Rwandan Supreme Court, which in 2018 found Ms Umuhoza guilty of conspiracy to undermine the government and the Constitution through acts of terrorism, war or other violent means, of downplaying genocide, and of spreading rumours with the intent to incite the population against the existing authorities. She was sentenced to 15 years’ imprisonment by the Supreme Court.
After exhausting all internal remedies, Ms Umuhoza approached the African Court on Human and Peoples’ Rights (African Court) alleging an array of rights violations, including a violation of her right to freedom of expression.
Ms Umuhoza was found guilty at the domestic level for minimisation of genocide for remarks she made during a speech at the Kigali Genocide Memorial regarding the crimes against humanity committed against the Hutus. The state respondent argued that “right to express one’s opinion is subject to limitations and that considering the social context, the history of and environment in Rwanda, there was reason to enact laws to penalise the minimisation of genocide.” The State Respondent urged the African Court to not to view free expression in vacuum and give due regard to the context within the remarks were made.
The National Commission for the Fight against Genocide (CNLG) intervened as amicus curiae and argued that that the remarks made by Ms Umuhoza regarding the argument that “double genocide” was essentially a way in which to deny the genocide against the Tutsis in Rwanda. They explained that this denial sows the seed of confusion regarding the genocide, creating the allusion that the Tutsis were as guilty as their executioners. The CNLG argued that Ms Umuhoza’s remarks were a “revisionist manoeuvre with the peculiar feature of using partial and dishonest methodology to select, disguise, divert or destroy information that corroborates the existence of genocide against the Tutsis.”
The African Court recognised the importance of the right to freedom of expression but noted further that this right can be subject to limitations. The Africa Court confirmed that the conviction was a limitation of Ms Umuhoza’s free speech. The African Court sought to establish if it was a legitimate, necessary and proportional restriction.
The African Court found that the laws that criminalise certain speech satisfied the legal leg of the test. On legitimacy, the African Court found that the restrictions on Ms Umuhoza’s free speech served the legitimate interest of protecting national security and public order. In terms of necessity and proportionality, the African Court recognised the particular context of the Rwandan genocide, which warranted measures to be adopted by the government to promote social cohesion and concordance among the people. The African Court found that it was “entirely legitimate for the state to have introduced laws on the ‘minimisation’, ‘propagation’, or ‘negation’ of genocide.” According to the African Court, statements that “deny or minimise the magnitude or effects of the genocide or that unequivocally insinuate the same fall outside the domain of the legitimate exercise of the right to freedom of expression and should be prohibited by law”. After consideration of these specific remarks, the African Court found that the remarks made by Ms Umuhoza did not deny or undermine the genocide committed against the Tutsis. Accordingly, Ms Umuhoza’s conviction was found to violate her right to freedom of expression, and it was ordered that the respondent state take all necessary measures to restore her rights and submit a report on the measures within 6 months.
Overview of the African Court on Human and Peoples’ Rights
The African Court became operational in 2009. Its mandate is to adjudicate matters dealing with states’ compliance with the African Charter and other instruments on the protection of human rights ratified by that state.(1) The African Court was established by African countries to ensure the protection of human and peoples’ rights in Africa. It complements and reinforces the functions of the ACHPR. The African Court has different procedures to the ACHPR, which are laid out in the African Court Protocol and the Rules of Court.
The relationship between the ACHPR and the African Court has been described as follows:
“Pursuant to Article 2 of the Protocol, the Court is established to complement the protective mandate of the Commission. The African Commission can bring cases to the Court for the latter’s consideration. In certain circumstances, the Court may also refer cases to the Commission, and may request the opinion of the latter when dealing with the admissibility of a case. The Court and the Commission have met and harmonised their respective rules of procedure, and institutionalised their relationship. In terms of their Rules, the Commission and the Court shall meet at least once a year, to discuss questions relating to their relationship.”(2)
Article 5(3) of the African Court Protocol provides that: “The Court may entitle relevant Non-Governmental Organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34(6) of this Protocol.” In November 2018, The Gambia became the ninth country to allow non-governmental organisations and individuals to access the African Court directly.(3) However, in 2019, Tanzania withdrew the right of individuals and NGOs to directly file cases against it.(4)
Stage 1: Filing a case
For applications by individuals and NGOs, the application must:
- Disclose the identity of the applicant, even where the applicant has requested anonymity.
- Comply with the Constitutive Act of the African Union and the African Charter.
- Not contain any disparaging or insulting language.
- Not be based exclusively on news disseminated through the mass media
- Be filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged.
- Be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter.
- Not raise any matter or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the African Charter or of any legal instrument of the African Union.(5)
The Practice Directions Guide to Litigants provides some useful guidance on filing a submission.
The submissions must be a made in writing and submitted to the at the seat of the African Court, which is at Arusha, Tanzania, and can be submitted by post, email, fax or courier. Only one copy needs to be submitted. This copy must be in one of the official languages of the Court (Arabic, English, French and Portuguese). The copy needs to be signed by the applicant or representative and needs to give the details of the parties and indicate the alleged violations as well as the order sought. The submission needs to be accompanied by proof of exhaustion of local remedies. Submissions should be filed within a reasonable time of from the date when local remedies were exhausted.
Stage 2: Standing
Article 5 of the Protocol indicates who can submit a case to the African Court:
- The ACHPR.
- The state party which had lodged a complaint to the ACHPR.
- The state party against which the complaint has been lodged at the ACHPR.
- The state party whose citizen is a victim of human rights violation.
- African intergovernmental organisations.
- A state party with an interest in a case, on submission of a request to the African Court to be permitted to join.
- NGOs with observer status before the ACHPR and individuals, but only against states that have made a declaration accepting the competence of the African Court to receive such cases in accordance with Article 34(6) of the African Court Protocol.
The standing provisions are relatively straightforward save for the complications and challenges presented by article 34(6), which make it difficult for individuals or NGOs to rely on this forum if the state alleged to have committed violations has not made the necessary declaration.
In respect of legal representation, rule 22 provides that “[e]very party to a case shall be entitled to be represented or to be assisted by legal counsel and/or by any other person of the party’s choice.”
Note on amicus curiae
Amici curiae are permitted in the African Court. Rule 45(1) of the African Court Rules provides that the African Court may decide to hear “as a witness or expert or in any other capacity any person whose evidence, assertions or statements it deems likely to assist it in carrying out its task”. The African Court is also empowered in terms of rule 45(2) to ask any person or institution to obtain information, express an opinion or submit a report to it at any point. In addition to providing written submissions, amici curiae may also be invited to make oral submissions at the hearing of the matter.
The procedure for making a request to act as amicus curiae is contained in section 42 to section 47 of the Practice Directions of the African Court. An individual or organisation wishing to act as amicus curiae must submit a request to the African Court, specifying the contribution that they would like to make with regard to the matter. If the African Court decides to grant the request, the person or organisation making the request will be notified by the Registrar and invited to make submissions and provided with all pleadings. The Practice Directions make clear that the decision on whether or not to grant a request to act as amicus curiae is at the discretion of the African Court.
Stage 3: Jurisdiction
At the African Court, jurisdiction needs to be established alongside the determination of admissibility. This is different to the ACHPR. The African Court’s jurisdiction is contained in article 3 of the African Court Protocol, which provides as follows:
“(1) The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.
(2) In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide.”
Article 26 of the Rules of Court stipulates that the African Court shall have jurisdiction over the following:
- To deal with all cases and all disputes submitted to it concerning interpretation and application of the Charter, the Protocol and any other relevant human rights instrument ratified by the States concerned.
- To render an advisory opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject of the opinion is not related to a matter being examined by the Commission.
- To promote amicable settlement in cases pending before it in accordance with the provisions of the Charter.
- To interpret a judgment rendered by itself.
- To review its own judgment in light of new evidence in conformity with rule 67 of these Rules.
In 2014, the African Court in Konaté v. Burkina Faso developed its jurisdictional scope as follows:
- Ratione personae: The African Court must have jurisdiction over both the complainant and the respondent state. This only arises if the case is brought by an entity contemplated in article 5 of the African Court Protocol, or by an African organisation seeking an advisory opinion.
- Ratione materiae: This requires the African Court to consider whether the acts complained of violate the African Charter and other international human rights treaties ratified by the respondent state.
- Ratione temporis: This requires the African Court to consider whether the violation occurred after the state concerned had ratified the African Court Protocol or the human rights treaty that it is claimed to have violated. Importantly, the African Court has expressly recognised that violations may be of a continuous nature, which opens its jurisdiction to cases where violations began before the African Court Protocol came into force for any state.
- Ratione loci: This requires the African Court to consider whether the violations occurred within the territory of a state party.
Stage 4: Admissibility
Once jurisdiction is established, the African Court will determine if the matter passes the admissibility threshold. After jurisdiction is confirmed, wider questions regarding the admissibility of the case will be considered. The three main admissibility requirements are as follows:
- Cases brought by the ACHPR: Rule 118 of the Rules of Procedure of the African Court allows the ACHPR to bring a case to the African Court if it has taken a decision with respect to a communication submitted under articles 48, 49 or 55 of the African Charter and it considers that the state has not complied or is unwilling to comply with its recommendations within 180 days.(6)
- Cases brought by an individual or NGO: Rule 40 of the Rules of Procedure sets out that the requirements for admissibility contained in article 56 of the African Charter must all be met in order for a case to be deemed admissible.
- Cases brought by an African organisation for an advisory opinion: Article 4 of the African Court Protocol allows any member state of the AU, the AU itself or any of its organs, or any African organisation recognised by the AU to request the African Court to provide an opinion on any legal matter relating to the African Charter or any other relevant human rights instruments.
Stage 5: Proceedings
The ordinary sessions of the African Court are held every year in March, June, September and December, or at any other period as it may deem fit. It may also hold extraordinary sessions. The hearing is conducted by the Presiding Judge, who prescribes the order in which the representatives of the parties are heard. As the African Court live streams and makes recordings of its hearings publicly available, prospective litigants may consider viewing such recordings beforehand to get a general sense of the way in which the African Court operates and engages with litigants.
The African Court consists of eleven judges, although seven judges hearing a matter is sufficient for there to be quorum. Rule 47(1) of the African Court Rules provides that the Presiding Judge or any Judge may put questions to the representatives of the parties. In practice, each of the main parties is allocated time to present arguments on admissibility and the merits (usually approximately 45 minutes), whereafter each judge has the opportunity to question the legal representatives. The legal representatives are then given the opportunity to prepare overnight and return the next day to respond to the questions posed and reply to the other side’s arguments.
Rule 47(1) of the African Court Rules also provides that where there are witnesses, experts and other persons appearing before the African Court, the judges are permitted to ask them any questions relating to the matter. Further, the representatives of the parties are entitled to examine, cross-examine and re-examine the witnesses, experts and other persons who appear before the African Court, as the case may be.
Stage 6: Measures and Remedies
When reaching its decision, the Africa Court will take into account various sources of law. Article 7 of the African Court Protocol provides that the African Court “shall apply the provisions of the [African] Charter and any other relevant human rights instruments ratified by the States concerned”. Other sources of law, may, however, also be considered.
Article 28(1) of the African Court Protocol stipulates that the African Court will render its judgment within 90 days of having completed its deliberations. Parties will be notified of when the judgment is expected to be handed down, and judgments are read in open court. The decision is made by a majority of the members of the panel, with the presiding judge having a casting vote in the event of a tie. Any member of the panel that heard the case may deliver a separate or dissenting opinion.
Article 27(2) of the African Court Protocol provides that “[i]n cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the [African] Court shall adopt such provisional measures it deems necessary.” The procedure for making a request for interim measures is contained in the Practice Directions. Any request for interim measures must state the reasons and must specify in detail the extreme gravity and urgency, as well as the irreparable harm that is likely to be caused. The request must be accompanied by all supporting documents that could substantiate the applicant’s allegations, including any relevant domestic court or other decisions. The Practice Directions provide that requests for interim measures must be filed within a reasonable time.
The African Court, as a full judicial body with binding decision-making authority, is likely to grant more effective remedies than the ACHPR. It can order specific amounts of damages, give supervisory interdicts that require the state party to report on implementation of the remedy, and require positive action to guarantee non-repetition.
Reparations at the African Court
In Norbert Zongo and Others v Burkina Faso the African Court found that the respondent state had violated articles 1, 7 and 9(2) of the African Charter but deferred its ruling on the issues of damages, calling on the parties to make submissions on that point.
In June 2015, after consideration of the submissions the African Court issued its judgment on reparations. In its reasoning, the African Court relied on the trite legal position that states which violate international human rights provisions are required to make full reparation for the damage caused, and relied on its remedial powers in terms of article 27(1) of the Protocol – which enjoins the Court to make an appropriate order to remedy the violation, including the payment of fair compensation or reparation.
There is a difference between material damages and moral damages: the former can be addressed in monetary terms, while the latter affects the reputation, sentiment or affection of a natural person. In this instance, the applicants sought both material and monetary damages. Here are some key observations and findings of the African Court regarding moral prejudice:
- The notion of victim: A victim does is not necessarily limited to the first-line heirs of a deceased person; other close relatives may also suffer moral prejudice. In this case, the spouses, children, and fathers and mothers of the deceased were found to suffer the most. The Court dismissed the claim by stepmothers, uterine sisters and brothers and step-sisters and step-brothers.
- The type of evidence required to establish victim status: Marriage and birth certificates as well as attestations of paternity or maternity, or any other equivalent proof should be produced.
- Proof of causal link between the wrongful act and the moral prejudice suffered: Such a link may result from the violation of a human rights, as an automatic consequence, without any need to prove otherwise.
- The amount of reparation: This determination should be done equitably and on a case by case basis.
On material prejudice, the Court considered the expenditure and costs incurred by the beneficiaries, which included the lawyer’s fees, and the transport and sojourn expenses.
Ultimately, the Court awarded damages to the family members affected by the violations of the state. The state respondent was ordered to pay 25 million CFA per spouse (approximately 43 500 USD), 15 million CFA per child (approximately 26,000 USD), and 10 million CFA per mother or father (approximately 17,400 USD).
Stage 7: Enforcement
It is important to remember that the ACHPR can refer matters to the African Court when it considers that a state (who has signed the Protocol) has not complied or is unwilling to comply with its recommendations. Despite the clear need for strong enforcement mechanisms, the African Court Protocol provides that “[t]he State Parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution”. Failures by states to comply with judgments are noted in the African Court’s report to the Assembly per article 31 of Protocol.
Commentary on the African Court
International Human Rights Law Review (2018)
Manisuli Ssenyonjo has taken the following view in relation to the impact of the African Court as well as some of the challenges it faces:
“First, the limited direct access by individuals and NGOs to the Court due to a limited number of States that have accepted the Court’s jurisdiction and allowed individuals and NGOs direct access to the Court. Thus, there is a need for more States to ratify the Court’s Protocol and to allow individuals and NGOs direct access to the Court. This will help to consolidate a pan-African judicial system for the protection of human rights which applies to over 1.2 billion people in Africa. In addition, an amendment of Article 34(6) the African Court Protocol by a decision of the au Assembly of Heads of State and Government to allow individuals and NGOs direct access to the Court would make the Court more accessible to victims of human rights violations in Africa. Until this is achieved, the African Commission should submit more cases to the Court in accordance with Rule 118 discussed above, particularly those cases in which States have failed to implement the Commission’s decisions.
Second, the non-implementation of the Court’s decisions, including refusals to implement, failure to inform the Court of what measures have been taken, and the slow pace or ‘reluctance’ to comply limits the Court’s effectiveness. In 2013, for example, the Court adopted an Interim Report noting that ‘Libya has failed to comply with a judgment of the Court’. It called on the au Assembly of Heads of State to take such other measures as it deems appropriate to ensure that Libya fully complies with the Court Order. However, the Assembly did not take any action. This shows that non-compliance and non-enforcement applies to both the Commission’s recommendations as well as the Court’s orders. Thus, the ability of the au organs to impose sanctions consistently on non-complying States is necessary in order to strengthen the credibility of the African Court’s orders and judgments.”
Practicalities of litigating before the African Court
Currently, the most notable practical consideration with litigating at the Africa Court is that states are either failing to engage with the declaration required under article 34(6) or withdrawing their declaration.(7) The Centre for Human Rights has noted that this is “gravely hampering access to remedy for many victims of human rights violations across the continent.”(8) This is presently a considerable challenge to potential litigants who seek redress and to hold states accountable for human rights violations.