The ACHPR<\/a> is a quasi-judicial body that is empowered to make non-binding recommendations. It has three main functions:<\/p>\n\n\n\n Beyond the obligation to consider reports submitted by states, and shadow reports submitted by CSOs regarding states\u2019 compliance with the African Charter, the ACHPR is empowered to receive and consider communications, which are like complaints. Communications are the mechanism through which the ACHPR fulfils its function to protect the rights and freedoms guaranteed in the African Charter.<\/p>\n\n\n\n There are several stages involved in the communications process, which are governed by the Communication Procedure<\/a>.<\/p>\n\n\n\n The ACHPR has broad standing provisions. Anyone can register a communication, including CSOs. This includes a state claiming that another state party to the African Charter has violated one or more of the provisions in the African Charter; CSOs (which do not need to be registered with the AU or have observer status); victims of abuses; or interested individuals acting on behalf of victims of abuses.[footnote]For more on standing see Pedersen, \u2018Standing and the African Commission on Human and Peoples’ Rights\u2019 African Human Rights Law Journal (2006) (accessible at https:\/\/www.ahrlj.up.ac.za\/pedersen-m-p<\/a>) and Mayer, \u2018NGO Standing and Influence in Regional Human Rights Courts and Commissions\u2019 Notre Dame Law School (2011) (accessible at https:\/\/scholarship.law.nd.edu\/cgi\/viewcontent.cgi?article=1053&context=law_faculty_scholarship<\/a>).[\/footnote]<\/p>\n\n\n\n The matter can also be brought for the public good, as class or representative actions under the actio popularis<\/em> approach, which means that the author of a communication need not know or have any relationship with the victim. This is to enable victims of human rights violations on the continent to receive assistance from NGOs and individuals far removed from their locality.[footnote]For more on actio popularis<\/em>, see Article 19 v Eritrea <\/em>at the ACtHPR (2007) (accessible at: https:\/\/africanlii.org\/afu\/judgment\/african-commission-human-and-peoples-rights\/2007\/79<\/a>).[\/footnote] Furthermore, it is not necessary for cases to be submitted by lawyers, although legal representation can be helpful. Rule 99(16) of the Rules of Procedure provides for the ACHPR to receive amicus curiae<\/em> briefs on communications.<\/p>\n\n\n\n Once a communication has been successfully submitted, a decision by a simple majority of the eleven commissioners is needed for the ACHPR to be seized with a matter, and the ACHPR will then proceed to consider whether the communication is admissible in terms of article 56 of the African Charter, including that all local remedies were exhausted before submitting the communication.[footnote]For more on the criteria for exhausting local remedies, see Sir Dawda K. Jawara v The Gambia<\/em> (2000) (accessible at: http:\/\/hrlibrary.umn.edu\/africa\/comcases\/Comm147-95.pdf<\/a>) and SERAC v Nigeria<\/em> (2002) (accessible at: https:\/\/www.escr-net.org\/sites\/default\/files\/serac.pdf<\/a>).[\/footnote]<\/p>\n\n\n\n Following a confirmation of admissibility, the ACHPR will give the parties time to present their written arguments. The ACHPR tends to prefer deciding matters on the papers, and it is advisable to only insist on an oral hearing if there are exceptional circumstances to argue or an argument to make that is new to the ACHPR.<\/p>\n\n\n\n After an evaluation of the factual and legal arguments put forward, the ACHPR will make a determination on whether there has been a violation of the African Charter or not. If it finds a violation, a recommendation will then be made. The recommendations are not legally binding but can become binding if they are adopted by the African Union. The Secretariat of the ACHPR typically issues correspondence reminding states that have been found to have violated provisions of the African Charter and calling on them to honour their obligations.<\/p>\n\n\n\n Human Rights Watch shared various reflections<\/a> on the work of the Commission, commemorating its 35th anniversary:<\/p>\n\n\n\n For further information on litigating at the African Commission, see the relevant section of Module 6: Litigating Digital Rights in Africa<\/a> of Media Defence’s Advanced Modules on Digital Rights and Freedom of Expression Online<\/a>. <\/em><\/p>\n\n\n The African Court has a mandate to adjudicate matters dealing with states\u2019 compliance with the African Charter and other instruments on the protection of human rights ratified by that state. It became operational in 2009.[footnote]International Federation for Human Rights, \u2018Practical Guide: The African Court on Human and Peoples\u2019 Rights towards the Africa Court of Justice and Human Rights\u2019 (2010) (accessible at:https:\/\/www.fidh.org\/IMG\/pdf\/african_court_guide.pdf<\/a>).[\/footnote] It complements and reinforces the functions of the ACHPR, but has different procedures to the ACHPR, which are laid out in the African Court Protocol<\/a> and the Rules of Court<\/a>.<\/p>\n\n\n\n The relationship between the ACHPR and the African Court has been described as follows:<\/p>\n\n\n\n \u201cThe African Commission can bring cases to the Court for the latter\u2019s 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.\u201d[footnote]African Court on Human and People\u2019s Rights, \u2018Frequently Asked Questions\u2019 (accessible athttps:\/\/en.african-court.org\/index.php\/faqs\/frequent-questions<\/a>).[\/footnote]<\/p>\n<\/blockquote>\n\n\n\n The Practice Directions Guide to Litigants<\/a> provides guidance on filing a submission. Article 5 of the African Court Protocol indicates who can submit a case to the African Court, including state parties, African intergovernmental organisations, 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. In recent years, The Gambia, Niger and Guinea-Bissau have made the declarations necessary to allow NGOs and individuals to access the African Court directly.[footnote]African Court on Human and Peoples\u2019 Rights \u2018Declarations,\u2019 (accessible at: https:\/\/www.african-court.org\/wpafc\/declarations\/#:~:text=The%20Court%20shall%20not%20receive,institute%20cases%20directly%20before%20it%2C<\/a>).[\/footnote] However, since 2016, four states have withdrawn their declarations (Tanzania, Rwanda, Cote d\u2019Ivoire, and Benin), leaving only seven states who allow it.[footnote]Id<\/em>.[\/footnote]<\/p>\n\n\n\n In respect of legal representation, rule 22 of the Rules of Court provides that \u201c[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\u2019s choice.\u201d Amici curiae<\/em> are also permitted in the African Court in terms of rules 45(1) and 45(2) of the Rules of Court, and the process for doing so is contained in sections 42-47 of the Practice Directions of the African Court.<\/p>\n\n\n\n At the African Court, jurisdiction needs to be established alongside the determination of admissibility, which is different to the ACHPR. Article 3 of the African Court Protocol and rule 26 of the Rules of Court stipulate the rules regarding jurisdiction.[footnote]For more on jurisdiction, see Konat\u00e9 v. Burkina Faso<\/em> in the African Court (accessible at: https:\/\/africanlii.org\/afu\/judgement\/african-court\/2013\/10-0<\/a>).[\/footnote]<\/p>\n\n\n\n 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, and it may also hold extraordinary sessions. The African Court live streams and makes recordings of its hearings publicly available, which is an advantage for transparency as well as for potential litigants to understand its workings. The African Court consists of eleven judges, although a bench of seven judges constitutes a quorum.<\/p>\n\n\n\n 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.[footnote]For more on the African Court\u2019s deliberations on reparations, see the judgment from Norbert Zongo and Others v Burkina Faso<\/em> (2015) (accessible at: https:\/\/en.african-court.org\/images\/Cases\/Ruling%20on%20Reparation\/Application%20No%20013-2011%20-%20Beneficiaries%20of%20late%20Norbert%20%20Zongo-Ruling%20on%20Reparation.PDF<\/a>).[\/footnote]<\/p>\n\n\n\n The African Court Protocol provides that \u201c[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\u201d. Failures by states to comply with judgments are noted in the African Court\u2019s report to the Assembly of the African Union in terms of article 31 of African Court Protocol. However, persistent non-compliance by states with the Court\u2019s orders has become a serious issue, with research finding that 75% of states do not comply with its decisions.[footnote]Lilian Chenwi, \u2018Successes of African Human Rights Court undermined by resistance from states,\u2019 The Conversation (2021) (accessible at: https:\/\/theconversation.com\/successes-of-african-human-rights-court-undermined-by-resistance-from-states-166454<\/a>).[\/footnote]<\/p>\n\n\n\n Amnesty International echoed these concerns noting that limits on individual and NGO access is a major challenge, and that implementation is equally challenging.[footnote]Amnesty International, \u2018Why the African Court should matter to you\u2019 (2023) (accessible at https:\/\/www.amnesty.org\/en\/latest\/campaigns\/2023\/06\/why-the-african-court-should-matter-to-you\/).[\/footnote] Of further concern Amnesty noted that\u2014<\/p>\n\n\n\n \u201cSome States unfortunately went as far as withdrawing their 34(6) declarations in reaction to Court\u2019s decisions that displeased them. Rwanda withdrew its 34(6) declaration in 2016, Tanzania in 2019, and Benin and Cote d\u2019Ivoire in 2020. These attacks to the Court itself were real steps backwards for the protection of human rights on the continent and for the concerned people who were deprived of a justice avenue that they had already been granted. Hopefully the future trend will on the contrary show more and more States valuing the building of a strong African human rights system.\u201d<\/p>\n<\/blockquote>\n\n\n\n The Court itself has also noted some challenges. In her 2023 speech Lady justice Aboud, President Court noted that while the Court has delivered several landmark judgments on a wide range of issues, \u201ca quick look at the African legal and legislative landscape reveals that most African countries still adopt, maintain and implement laws contrary to the spirit and letter of the judgments already delivered by the Court.\u201d[footnote]Speech By Hon. Lady Justice Aboud, President of the African Court on Human and Peoples\u2019 Rights on the Occasion of the opening of the 2023 Judicial Year Of The African Court (2023) (accessible at https:\/\/www.african-court.org\/wpafc\/speech-by-hon-lady-justice-imani-d-aboud-president-of-the-african-court-on-human-and-peoples-rights-on-the-occasion-of-the-opening-of-the-2023-judicial-year-of-the-afric\/).[\/footnote] That she, she went further to share positive examples of the Courts reach:<\/p>\n\n\n\n \u201cThe Court is pleased to note that the impact of its case law has found some form of expression in the recent adjudication in some domestic fora. For example, the High Court of Lesotho and the High Court of Kenya have referred to the case of Konat\u00e9 v Burkina Faso in dealing with freedom of expression. As none of these two countries was a party to the freedom of expression cases adjudicated by the Court, the practice portrays a trend to preventive and pre-emptive implementation, that is, to avoid being condemned by the Court in a potential similar case.\u201d<\/p>\n<\/blockquote>\n<\/div><\/div>\n\n\n\n For further information on litigating at the African Commission, see the relevant section of Module 6: Litigating Digital Rights in Africa<\/a> of Media Defence’s Advanced Modules on Digital Rights and Freedom of Expression Online<\/a>.<\/em><\/p>\n\n\n The East African Court of Justice (EACJ<\/a>) is a sub-regional court that is mandated to resolve disputes involving the East African Community and its member states. The EACJ was established by article 9 of the Treaty for the Establishment of the East African Community<\/a> and is tasked with interpreting and enforcing it.[footnote]For more see International Justice Resource Center \u2018East African Court of Justice\u2019 (accessible at: https:\/\/ijrcenter.org\/regional-communities\/east-african-court-of-justice\/<\/a>).[\/footnote] The East African Court of Justice Rules of Procedure (EACJ Rules<\/a>) govern its functioning. The EACJ serves the East African Community (EAC<\/a>), namely Burundi; Kenya; Rwanda; South Sudan; United Republic of Tanzania; and Uganda. It has a First Instance Division and an Appellate Division. The former administers justice and applies relevant law, while the latter confirms, denies or changes decisions taken by the former.<\/p>\n\n\n\n At the EACJ, a statement of reference is the equivalent of a claim or complaint in domestic litigation and includes allegations of a human rights violation made by a Partner State, the Secretary-General, or a legal or natural person. Articles 24 and 25 of the EACJ Rules provide for the lodging of a statement of reference.[footnote]See the EACJ User Guide for more information: https:\/\/eacj.org\/wp-content\/uploads\/2014\/05\/User-Guide.pdf<\/a>.[\/footnote]<\/p>\n\n\n\n Rule 30(1) of the EACJ Rules provides that any legal or natural person who is resident in a partner state may bring a case to the EACJ to challenge the legality of any Act, regulation, directive, decision, and action of a Partner State or an institution of the Community on whether it is an infringement of the EAC Treaty. Cases could fall within the temporal jurisdiction of the EACJ if they occurred after the EAC Treaty came into force. Further jurisdictional requirements are set out in articles 27 and 30 of the EAC Treaty.[footnote]It is necessary to note that the EACJ does not explicitly have jurisdiction over human rights matters. However, articles 6(d) and 7(2) of the EAC Treaty create scope for human rights matters to be brought before the EACJ. For more, see Burundi Journalists\u2019 Union v Attorney General of the Republic of Burundi<\/em> (2015) (accessible at: https:\/\/www.eacj.org\/?cases=burundi-journalists-union-vs-the-attorney-general-of-the-republic-of-burundi<\/a>)[\/footnote] In terms of rule 36 of the EACJ Rules, amici curiae<\/em> are allowed to apply to be involved in a matter.<\/p>\n\n\n\n In terms of admissibility, article 30(2) of the EAC Treaty requires references to be filed with the EACJ within two months of the alleged violation.[footnote]In Attorney General of Uganda and Another v Awadh and Others<\/em> (2011), the EACJ held that it would not be flexible on this requirement (accessible at: https:\/\/www.eacj.org\/?cases=omar-awadh-and-6-others-vs-attorney-general-of-uganda<\/a>).[\/footnote] There is also no provision in the EAC Treaty that recognises the concept of continuing violations, but there is no requirement that all domestic remedies must be exhausted first before approaching the EACJ.[footnote]In Democratic Party v Secretary-General and the Attorneys General of the Republics of Uganda, Kenya, Rwanda and Burundi <\/em>(2013), the EACJ held that this jurisdiction is not voluntary and that once an applicant can show an alleged violation of the EAC Treaty, the EACJ must exercise jurisdiction (accessible at: https:\/\/www.eacj.org\/?cases=democratic-party-vs-the-secretary-general-east-african-community-and-the-attorney-general-of-the-republic-of-uganda-and-the-attorney-general-of-the-republic-of-kenya-and-the-attorney-general-of-the-r<\/a>).[\/footnote]<\/p>\n\n\n\n Article 37 of the EAC Treaty allows for parties to be represented when they appear before the EACJ. Parties can be represented by an advocate entitled to appear before a superior court of any of the Partner States. Chapters VII and XII of the EACJ Rules<\/a> and the User Guide<\/a> provide for the procedures for hearing cases.<\/p>\n\n\n\n In terms of enforcement, article 44 provides, among others, that the rules of civil procedure applicable in the state in question will govern the execution of a judgment of the EACJ that imposes a pecuniary obligation.<\/p>\n\n\n\n For more information, see Media Defence\u2019s Manual on Litigating Freedom of Expression Cases in East Africa<\/a> and the relevant section<\/em> of Module 6: Litigating Digital Rights in Africa<\/a> of Media Defence’s Advanced Modules on Digital Rights and Freedom of Expression Online<\/a>.<\/em><\/p>\n\n\n The ECOWAS Community Court of Justice (ECOWAS Court<\/a>) is the judicial body of the Economic Community of West African States (ECOWAS<\/a>). The ECOWAS Court was established in terms of the Revised Treaty of the ECOWAS (Revised Treaty<\/a>). Article 9(4) of the ECOWAS <\/a>P<\/a>rotocol<\/a>, as amended by the ECOWAS Supplementary Protocol<\/a>, formally recognises that the ECOWAS Court \u201chas jurisdiction to determine cases of violation of human rights that occur in any Member State.\u201d<\/p>\n\n\n\n The mandate of the ECOWAS Court includes ensuring the observance of law and of the principles of equity in the interpretation and application of the provisions of the Revised Treaty and all other subsidiary legal instruments adopted by ECOWAS. It serves the ECOWAS member states: Benin, Burkina Faso, Cape Verde, Cote d\u2019Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Sierra Leone, Senegal, and Togo. The ECOWAS Protocol<\/a>, the ECOWAS Supplementary Protocol<\/a>, and the Rules of the Community Court of Justice<\/a> provide guidance on the procedures of the ECOWAS Court.<\/p>\n\n\n\n Article 11 of the ECOWAS Protocol sets out how cases may be filed to the ECOWAS Court. It has fairly broad standing provisions detailed in article 10 of the Revised Treaty, including that community institutions or their staff, individuals, corporate bodies, member states and the national courts of ECOWAS countries may approach it.[footnote]See Ocean King v Senegal<\/em> for more on how strictly adherence to the standing provision is applied by the ECOWAS Court (accessible at: http:\/\/www.worldcourts.com\/ecowasccj\/eng\/decisions\/2011.07.08_Ocean_King_Nigeria_Ltd_v_Senegal.pdf<\/a>).[\/footnote] Applications from organisations acting on behalf of a group of people whose rights have been violated are also accepted.<\/p>\n\n\n\n Human rights cases must be brought within three years of the cause of action arising. In instances where violations are ongoing, it will give rise to a cause of action die in diem<\/em> (day in and out) and postpones the running of time.<\/p>\n\n\n\n The ECOWAS Protocol and the Rules of the Community Court of Justice do not explicitly provide for amicus curiae<\/em> briefs. However, in Federation of African Journalists and Others v The Gambia<\/a><\/em>,[footnote]ECOWAS Court Suit No. ECW\/CCJ\/APP\/36\/15 (2018) (accessible at: http:\/\/prod.courtecowas.org\/wp-content\/uploads\/2019\/02\/ECW_CCJ_JUD_04_18.pdf<\/a>).[\/footnote] interveners were accepted as amici curiae<\/em>. In that matter, the Court granted an application in terms of article 89 of the Rules of the Community Court of Justice, allowing the CSOs to join the suit as amici curiae<\/em> interveners. It seems that this has opened the door to amici<\/em> applications at the Court going forward, and amici<\/em> have been successfully admitted in later cases including Amnesty International Togo v The Togolese Republic<\/em><\/a> and SERAP v Federal Republic of Nigeria<\/em><\/a>.<\/p>\n\n\n\n Admissibility at the ECOWAS Court is not as strictly applied as it is in the other courts; however, it is important to note that applications that are brought cannot be pending before another court of similar status. The ECOWAS Court does not require the exhaustion of domestic remedies but will neither hear matters that have been determined on the merits by domestic courts nor hold appellate jurisdiction over domestic courts.<\/p>\n\n\n\n The remedies available to the ECOWAS Court are similar to those offered at a domestic level. Remedies can include declarations and mandatory orders, but the ECOWAS Court does not have scope to create remedies and is accordingly limited to base the remedy on what was put before it by the parties.<\/p>\n\n\n\n The judgments of the ECOWAS Court are binding: the Member States are required to take immediate steps to comply with the remedy. Despite this, concerns have arisen regarding the legitimacy of the enforceability of the ECOWAS Court, as the power given by the ECOWAS Revised Treaty to heads of state and governments to impose sanctions has yet to be exercised.[footnote]For more, see Olisa Agbakoba Legal \u2018Enforcement of the Judgments of the ECOWAS Court\u2019 (2018) (accessible at: https:\/\/oal.law\/enforcement-of-the-judgments-of-the-ecowas-court\/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration<\/a>).[\/footnote]<\/p>\n\n\n\n The ECOWAS Court has recently demonstrated its willingness to progressively address digital rights issues placed before it. In two prominent cases, it recently ruled against states who had shut down access to the internet and\/or social media in violation of the right to freedom of expression. In June 2020, the Court ruled that the September 2017 internet shutdown ordered by the Togolese government during ongoing protests in that country was illegal and an affront to the applicants\u2019 right to freedom of expression.[footnote]Economic Community of West African States Community Court of Justice, Suit no. ECW\/CCJ\/APP\/61\/18 (2020) (accessible at: https:\/\/www.accessnow.org\/cms\/assets\/uploads\/2020\/07\/ECOWAS_Togo_Judgement_2020.pdf<\/a>).[\/footnote] In a similar case in 2022, the Court held that the government of Nigeria\u2019s banning of social media platform Twitter was also illegal.[footnote]SERAP v. Federal Republic of Nigeria (2022) (accessible at: https:\/\/globalfreedomofexpression.columbia.edu\/cases\/serap-v-federal-republic-of-nigeria\/<\/a>.)[\/footnote]<\/p>\n\n\n\n For more information, see Media Defence\u2019s Training Manual on Litigation of Freedom of Expression in West Africa<\/a>. and the relevant section<\/em> of Module 6: Litigating Digital Rights in Africa<\/a> of Media Defence’s Advanced Modules on Digital Rights and Freedom of Expression Online<\/a>.<\/em><\/p>\n\n\n\n\n
Challenges at the Africa Commission<\/strong><\/strong><\/h5>\n\n\n\n
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Litigating at the African Court on Human and Peoples\u2019 Rights<\/h3>\n\n\n\n
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Commentary on the African Court<\/strong><\/h5>\n\n\n\n
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Litigating at the East African Court of Justice<\/h3>\n\n\n\n
Litigating at the ECOWAS Community Court of Justice<\/h3>\n\n\n\n
The practicalities of litigating digital rights<\/h5>\n\n\n\n
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