Reading List: An introduction to litigating at regional mechanisms in Africa

At Media Defence, we’ve created a Training Resource Hub with lots of great resources on digital rights. The Hub covers ten digital rights themes, such as defamation, privacy and restrictions to online content. In this blog, we’ve put together some resources to help you learn more about litigating at regional mechanisms in Africa. Take a look at our suggestions below to learn more.

Overview of Regional Mechanisms in Africa

There are currently four operational regional and sub-regional mechanisms where you can litigate freedom of expression and digital rights cases.

Regional mechanisms:

1. The African Commission on Human and Peoples’ Rights
2. The African Court on Human and Peoples’ Rights

Sub-regional mechanisms:

1. The East African Court of Justice
2. The Economic Community of West African States Court of Justice
3. The Southern African Development Community Tribunal (inactive)

The African Commission on Human and People’s Rights (ACHPR)

Beyond the obligation to consider reports submitted by states, and shadow reports submitted by CSOs regarding states’ compliance with the African Charter, the ACHPR is empowered to receive and consider communications. The communications process comprises several stages.

Reading list

• Read the Summary Module section on the ACHPR for an overview of the ACHPR.
• To learn more about admissibility, and what to do in emergency situations, check out the  Advanced Module section on the ACHPR.
• Visit the ACHPR website for the  Communications Procedure.
• See Sir Dawda K. Jawara v The Gambia (2000) where the ACHPR addresses the requirement of exhaustion of local remedies, as well as what constitutes an effective domestic remedy (§32-43).
• Finally, see SERAC v Nigeria (1996) where the ACHPR demonstrated its willingness to deal with non-state actors, state obligations, and to engage with NGOs. As a result, the ACHPR noted that states have a duty to protect their citizens. States not only need to afford this through appropriate legislation and effective enforcement, but also by shielding citizens from damaging acts that may be perpetrated by private parties.

African Court on Human and Peoples’ Rights

The African Court has a mandate to adjudicate matters regarding states’ compliance with the African Charter and other instruments on the protection of human rights ratified by that state. It complements and reinforces the functions of the ACHPR, but has different procedures.

Reading list

• For an overview, see the Summary Module on the African Court of Human and Peoples’ Rights.
• Take a look at the Advanced Module on litigating at the African Court which includes how to file a case, standing and jurisdiction.
• Learn the rules and procedures in the African Court Protocol and the Rules of Court.
• The Court’s Practice Directions Guide for Potential Litigants provides guidance on filing a submission.
• Finally, read the judgment in Norbert Zongo and Others v Burkina Faso (2014). In this case, the Court found that when dealing with the issue of damages, one could make a distinction between material damages and moral damages.

East African Court of Justice (EACJ)

The East African Court of Justice (EACJ) 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 the Treaty for the Establishment of the East African Community and is tasked with interpreting and enforcing it. It serves the East African Community (EAC) and has a First Instance Division as well as an Appellate Division. The former administers justice and applies relevant law, while the latter confirms, denies or changes decisions taken by the former.

Reading list

• Get started with the Summary Module section on the EACJ as an introduction.
• Learn more about the EACJ’s statements of reference, standing, admissibility and remedies in the Advanced Module on the EACJ.
• Furthermore, read the EACJ section in the Manual on Litigating Freedom of Expression Cases in East Africa. This Manual includes further guidance, such as the advantages and disadvantages of taking a case to the EACJ rather than other available mechanisms.
• See Chapters VII and XII of the EACJ Rules and the User Guide for the procedures on hearing cases.
• For a judgment on a case involving freedom of expression, check out Media Council of Tanzania v Attorney-General of the United Republic of Tanzania (2019). The EACJ ruled in favour of upholding the fundamental right to freedom of expression. It also called for the repeal of vague and broad provisions that seek to stifle freedom of expression.

Economic Community of West African States Court of Justice (ECOWAS Court)

The ECOWAS Community Court of Justice (ECOWAS Court) is the judicial body of the Economic Community of West African States (ECOWAS). The mandate of the ECOWAS Court includes ensuring the observance of law, as well as of the principles of equity in the interpretation and application of the provisions of the Revised Treaty. The mandate also covers all other subsidiary legal instruments adopted by ECOWAS.

Reading list

• Begin with the Summary Module section on litigating at the ECOWAS Court.
• Follow up with the Advanced Module on ECOWAS covering applications, standing and proceedings.
• See the section on the ECOWAS Court in the Manual on Litigation and Freedom of Expression in West Africa. In particular, the section on advantages and disadvantages may help you assess whether this is the best mechanism to approach for your case.
• For more on the rules and procedures, visit the Court’s site for the ECOWAS Protocol, the ECOWAS Supplementary Protocol, and, finally, the Rules of the Community Court of Justice.
• Read Federation of African Journalists v The Gambia (2018) in which the Court delivered a landmark judgment. It found that state authorities had violated the rights of four journalists. This occurred when security agents arbitrarily arrested, harassed and detained them under inhumane conditions, and forced them into exile for fear of persecution.

Southern African Development Community Tribunal (SADC Tribunal)

The SADC established the currently inactive SADC Tribunal in 2005. Its mandate was to ensure adherence to, and proper interpretation of the provisions of the SADC Treaty and subsidiary instruments. Following several rulings against the Zimbabwean government, the Tribunal was suspended in 2010.  In 2014, a Protocol was adopted which sought to remove the Tribunal’s power to adjudicate individual disputes against state parties.

• Read the Advanced Module section for domestic case law condemning governments’ support for the suspension of the Tribunal.

We hope this provides a useful overview of litigating at regional mechanisms in Africa. You can find more about litigating digital rights in Africa, however, on Media Defence’s Training Resource Hub. Moreover, you can learn about Media Defence’s strategic litigation, including cases at these regional mechanisms, on our website. Click here to read about our most recent strategic cases.