Rights enforcement in the African Human Rights Court: Restrictiveness, progressivity and resistance

• DOI: https://doi.org/10.47348/AYIH/2020/a2
• Citation: (2020) African Yearbook on International Humanitarian Law 15
• Published date: 20 September 2021
• Pages: 15-43
• Author: Chenwi, L.
• Date: 20 September 2021

15

Rights enforcement in the African

Human Rights Court: Restrictiveness,

progressivity and resistance

Lilian Chenwi*

Abstract

Africa is cha racterised by, inter alia, oppressive political systems, a c ulture

of impunity of those who govern, a nd the use of state sovereignty m antra

in the face of gross and syste matic rights violations. Yet, Afric an states

have, through the establishme nt of the African Hum an Rights Cour t,

created an avenue for judicial scr utiny of their laws and exec utive action

that affect huma n rights. While the Court holds great promi se in relation

to ghting impunity a nd the provision of effect ive remedies for rights

violations, ensurin g respect for human r ights, and fostering Af rica’s

quest for good governance, development and regional i ntegration, it

operates amidst state resista nce and other complexities, which t hreaten

its effectiveness a nd existence. This article considers whethe r, against this

background, the Cou rt has shown restr ictiveness or progressiv ity in its

enforcement of rights.

Keywor ds: African Court; African C ommission; African Charter;

human rights in Afr ica; provisional measures; contentious jurisdiction;

advisory jurisdiction; advisory opinions; remedies and reparations

1 INTRODUCTION

Upholding human rights is critical for Africa’s development and

security, and especially at present, as the Covid-19 crisis continues

to have profound human rights implications, including exacerbating

human rights violations. Since the start of Cov id-19, allegations of

human rights violations have been made, some not necessarily caused

by the pande mic,1 but nevertheless exacerbated by it. The pandemic

* LLB, LLM, LL D, dip IPHU. Professor, School of Law, Universit y of the

Witwatersrand. Th is article is a re vised version of my inaug ural lectu re,

delivered at University of t he Witwatersrand on 18 August 2021.

1 African Union (AU) and United Nations Developme nt Programme (U NDP)

‘The Impact of the COVI D-19 Outbreak on Governa nce, Peace and Secur ity

in the Sahel’ Regiona l Brief (November 2 020) 22, available at < htt p s://

au.int/sites/default/fi les/documents/39871-do c-190121_impact_of _COVID_

on_governance_peace_security_in_sahel_version_9.pdf> (accessed on

24 August 2021).

https://doi.org/10.47348/AYIH/2020/a2

(2020) African Yearbook on International Humanitarian Law 15

© Juta and Company (Pty) Ltd

16 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a2

has also exposed the v ulnerability of institutions in efciently

carrying out their rights protection mandate.2 A fur ther concern is

that the pandemic risks reversing the development gains of Agenda

2063,3 which provides a picture of ‘The Africa We Want’.4 In terms of

Aspiration 3 of the Agenda, the African Union (AU) and African states

aspire to an Africa that has ‘a universal culture of good governance,

democratic values, gender equality, respect for human rights, justice

and the rule of law’.5 The aim is to have a continent where the

principles of ‘human rights’, ‘justice and rule of law are entrenched’;

‘capable institutions’ that ‘are at the service of African people and

transformative leadership’ exist ‘at all levels’; Africa’s ‘population

enjoy[s] affordable and timely access to independent courts and

judiciary that deliver justice without fear or favour’; and impunity is

‘a thing of the past’.6 It is evident from the aims that an effective

regional human rights court, a mong others, is critical to attaining ‘The

Africa We Want’. Realising Aspiration 3 might, however, be unlikely

for many, given the continent’s narrative of progressive human rights

commitments on ‘paper’ that do not often translate into concrete

benets for people, especially the poor, vulnerable and marginalised;

the prevalent and gross human rights violations that reveal systematic

or institutionalised patterns;7 oppressive political systems (including

dictatorships and entrenched undemocratic systems);8 the ‘upholding

[of] state sovereignty and the principles of non-interference even in

the face of grave human rights violations’;9 and a ‘chronic lack of

cooperation with’, and resistance to, bodies whose decisions have

2 The African Cour t on Human and Peoples’ Ri ghts (ACtHPR) is one of these

institutions. Se e ACtHPR ‘Activity Report of t he Africa n Court on Human

and Peoples’ Rights: 1 Janua ry–31 December 2 020’, AU Executive Council:

Thirt y-Eight Ordinary Session (3 –4 February 2021) Doc EX.CL/1258(X XXVIII)

para 47 (‘ACtHPR Activity Report 2 021’).

3 AU ‘Agenda 2063: The Af rica We Want’ (2015), available at

Agenda2063/popul ar_version> (accessed on 24 August 2021).

4 AU and UNDP op cit note 1 at 15.

5 AU op cit note 3 paras 8 and 27. Aspiration 3 is one of seven aspirations

(see para 8 for the other aspirat ions).

6 Ibid paras 28–31.

7 Frans Viljoen Internationa l Human Rights Law in Africa 2 ed (2012) 461; ‘Preface’

in Danwood M Chir wa and Lilian Chenwi (eds) The Protection of Economic, Social

and Cultural Rights in Africa : International, Reg ional and National Perspec tives

(2016 ) xix .

8 Chirwa and Chenwi op cit note 7 at xix .

9 Tom Gerald Daly and Micha Wiebusch ‘The A frican C ourt on Human and

Peoples’ Rights: Mapping Resist ance against a Young Cour t’ (2018) 14:2

International Jou rnal of Law inContext 294.

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