Embedding regional human rights in adverse times: The judgments of the African Court on Human and Peoples’ Rights as interpretive precedents for national actors

 Frans Viljoen
 LLB MA LLM (Cambridge) LLD (Pretoria)
 Professor of International Human Rights Law, National Research Foundation SARChI Chair in International Constitutional Law, Department of Public Law, University of Pretoria, South Africa
 https://orcid.org/0000-0003-0551-0109
 This email address is being protected from spambots. You need JavaScript enabled to view it..

 This paper is based on a presentation made by the author at the Conference on the Implementation of Decisions of the African Court on Human and Peoples’ Rights organised by the Centre for Human Rights, University of Pretoria, on 21 and 22 June 2024 in Arusha, Tanzania.

 Edition: AHRLJ Volume 25 No 2 2025
 Pages: 1082 - 1115
 Citation: F Viljoen ‘Embedding regional human rights in adverse times: The judgments of the African Court on Human and Peoples’ Rights as interpretive precedents for national actors’ (2025) 25 African Human Rights Law Journal 1082-1115
 http://dx.doi.org/10.17159/1996-2096/2025/v25n2a27
 Download article in PDF

Summary

This article argues that the impact of the African Court on Human and Peoples’ Rights should not be measured solely by direct compliance with its contentious judgments, which remains weak and is undermined by withdrawals of individual-access declarations. Instead, it builds on the concept of res interpretata as a theory of authority: The idea that the Court’s judgments and advisory opinions serve as interpretive precedents that generate general principles that, while not formally binding erga omnes, provide heightened persuasive guidance for all state parties facing analogous issues. Grounded in treaty obligations, good-faith commitments and the Court’s mandate to interpret and apply AU and other human rights treaties, these precedents can orient domestic courts, legislatures, policy makers and administrators towards convergent standards on matters as diverse as form of punishment, criminal procedure, election management and the protection of indigenous peoples. The article compares European and Inter-American approaches, proposing a hybrid model for Africa that is sensitive to legal pluralism and the domestic context. It calls for deliberate diffusion of the Court’s jurisprudence through constitutional incorporation of AU treaties, an explicit requirement that courts consider the Court’s case law, possibilities for advisory references, and systematic use of Court principles in law reform, policy design and parliamentary oversight. AU organs, in particular the African Court itself, the Pan-African Parliament and the AU Commission on International Law, are urged to coordinate efforts, create accessible case law tools, and develop model laws. Ultimately, embedding the Court’s jurisprudence via res interpretata, supported by informed elites, active civil society and reoriented legal education, offers a pragmatic path to constructing a nascent pan-African human rights common law even in adverse political conditions.

Key words: African Court; judgments; res interpretata; interpretive precedents; general principles; embeddedness

1 Introduction

So far, the overriding impression is that the judgments of the African Court on Human and Peoples’ Rights (African Court) have had little effect on the lives of ordinary Africans. This view stems from a focus on the African Court’s decisions in contentious cases. Disillusionment with the very low implementation rates with respect to these judgments seems to have overshadowed other possible ways of evaluating the Court’s impact. By shifting the analytical gaze from implementation by respondent states in contentious cases (viewed as adherence to the Court’s case-specific orders) to the broader impact (or influence) of the Court’s judgments in all state parties, this article interrogates the legal basis and the potential of conceptualising and using the Court’s judgments as interpretive precedents (res interpretata). It also considers the related role of the Court’s advisory opinions.

Distinguishing between a state party to a particular case, on the one hand, and all other state parties to the relevant treaty that were not party to the case proceedings (third states), on the other, this article contends that the more indirect effects of the Court’s judgments should be brought into the spotlight. Although the orders in a particular contentious case by virtue of binding country-specific precedents (res judicata or ‘already judged’) require obedience only by the respondent state, a purposive interpretation of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court (African Court Protocol) supports an understanding of the Court’s judgments as res interpretata. This means that the Court’s authoritative interpretations in a given case should, in substantially similar circumstances, serve as strongly persuasive normative guidance for third states. In this way, the individual case serves as a stimulus for legal, policy and administrative change beyond the case and contributes to prevent similar violations, thereby reducing the number of cases submitted to the Court. To be clear, neither the Court nor any African Union (AU) body has expressed a view on the res interpretata effect of the Court’s judgments.

This article draws from and builds on scholarly contributions that have explored the notion of res interpretata as a theory of authority in the African,1 European2 and Inter-Americana human rights systems,3 and aims to contribute to its further theorisation.4 While much of the scholarly discussions and policy debates have focused on the role of courts, this article takes a closer look at legislatures and policy makers.5 By locating the discussion firmly in the Court’s jurisprudence, it adopts a practical solutions-oriented approach. The African Court depends on national authorities and other domestic actors to implement its decisions.

In the social sciences, generally, ‘embeddedness’ refers to – among other elements – the shaping of social institutions by their context.6 Applying the ordinary meaning of the word to international human rights, ‘embed’ entails establishing international norms ‘very strongly within’ as an ‘integral part’ of the municipal system.7 ‘Embeddedness’, therefore, lies at the heart of the relationship between any international human rights treaty and municipal law. In the context of international human rights courts, ‘embeddedness’ captures the idea that international courts exercise authority within, and are shaped by, the various national political and institutional ecosystems within which their judgments need to be implemented. Under the principle of subsidiarity, it is the primary task of the state to give effect to (to ‘embed’) the rights guaranteed in the treaty; supranational oversight enters into the fray only to fill national gaps or rectify national shortcomings.8 In this article, embeddedness is understood as a mechanism of national reception of international human rights law. It is aimed at diffusing international norms in a broad, organic and gradual process through which norms spread across countries in the region, towards the ideal of eventual norm internalisation.

In the context of the article, ‘diffusion’ is a process that increases the probability that a norm adopted by the Court in respect of one country (or countries) would steer norm evolution in a non-adopting country (or countries).9 These processes are enabled by ‘translating’ supranational norms into local languages and – more importantly – by situating them within ‘local contexts of power and meaning’.10

Following this introduction, the article proceeds to contextualise the Court’s merits judgments against the backdrop of increasing non-compliance and in light of comparative regional practice. It then turns to the concept of res interpretata, examining its rationale, legal foundations and persuasive authority. Building on this analysis, it explores how general principles of law may be derived from the Court’s interpretive jurisprudence and offers an illustrative list of such principles. Shifting the focus to domestic adjudication, the article assesses the limited extent to which national courts have drawn interpretive guidance from principles emanating from the Court’s case law and proposes avenues for strengthening judicial dialogue between the African Court and domestic courts. It broadens the lens to consider how the Court’s interpretive precedents may serve as the basis of law reform, highlighting the role of multiple stakeholders. A conclusion situates the article’s core insights within a broader analytical framework.

2 Context

2.1 Ongoing non-compliance

On 13 June 2013 the African Court for the first time found an African state in violation of its commitments under AU human rights law.11 In the 12 years since then, the Court found violations in a further 97 cases.12 As the number of decisions grew, scholarly and popular interest increasingly turned to questions about the implementation of these decisions.13 Reduced to an assessment based on a narrow compliance optic focused on state adherence to orders in contentious case ‘to which they are parties’,14 the Court’s impact has indeed been rather bleak.15 The two most celebrated instances of ‘full’ compliance, Konaté v Burkina Faso16 and Zongo v Burkina Faso,17 were decided in the Court’s early years. In line with Konaté, Burkina Faso decriminalised defamation in the print and online media.18 In Zongo, the state complied with all elements set out in the Court’s order.19 In at least four other instances, partial compliance can be identified: Actions pour la Protection des Droits de l’Homme v Côte d’Ivoire;20 Alex Thomas v Tanzania and other cases dealing with the right to free legal aid;21 Ajavon v Benin;22 and Wangwe v Tanzania.23

The withdrawal of direct access declarations by the states against which the majority of cases were brought has led to a marked decrease in submitted applications, thereby significantly diminishing the prospects of the Court issuing merits decisions.24 This is unlikely to change in the near future. In respect of four of the eight states that have such a declaration in place, the Court has so far found no violations.25 Of the remaining four, two are under military rule,26 a factor that may constrain the prospects of cases being submitted – and eventually implemented – in respect of those countries. Indirect access, through the African Commission on Human and Peoples’ Rights (African Commission), has yielded only two merits decisions.27

2.2 Inter-regional trialogue

While also contending with the cross-system reach of Court judgments in contentious cases, the two other well-established regional human rights systems have taken divergent paths, thereby positioning the African system as a potential hybrid between the two.

An example from the early years of the European Court of Human Rights (European Court) illustrates the need for a principled approach to its judgments radiating beyond the parties to the case. Although the European Court held that criminalising consensual homosexual acts between consenting adults violated the European Convention on Human Rights,28 it took more than a decade, involving litigation in near-identical cases, to get Ireland and Cyprus to reform their laws.29 Today, there seems to be agreement that the effect of res interpretata is to endow the judgments of the European Court with strong persuasive interpretive authority,30 but that it falls short of a binding (erga omnes) obligation in respect of all state parties.31 The leeway allowed to domestic courts to depart from the European Court’s ruling, provided that detailed reasons are provided,32 aims to uphold the principle of subsidiarity, as captured in the European Court’s use of the ‘margin of appreciation’.

The approach of the Inter-American Court of Human Rights (Inter-American Court) is different. The Inter-American Court requires all domestic courts to exercise ‘conventionality control’.33 They must, within their legal and constitutional competences,34 and even if litigants do not raise the issue,35 interpret national law not only in line with the American Convention on Human Rights but also in line with the Court’s relevant case law.36 This requires that the national court must either interpret domestic law in line with inter-American norms or, if that is not possible, invalidate or decline to enforce the relevant domestic law.37 Commentators have criticised the ‘doctrine’ as an overbearing ‘top-down’ approach through which the Inter-American Court dictates national interpretation and undermines democracy.38 The Inter-American Court clarified that the responsibility lies not only on courts, but on all other national authorities, including law makers.39 Arguably, this approach also serves the principle of subsidiarity by making domestic judges ‘the first line’ of Inter-American Court judges, thereby pre-empting the role of the actual inter-American system.40

Africa’s plural legal landscape makes the Inter-American model normatively attractive but institutionally unrealistic; hence, diffusion through persuasive authority along the lines of the European system seems to be preferable.

3 Res interpretata as a sui generis form of embeddedness

This part of the article discusses embeddedness as the rationale of res interpretata, and elaborates on the sui generis legal basis and persuasive value of the African Court’s judgments.

3.1 Its rationale

The res interpretata effect of the Court’s judgments is to embed African regional human rights and to potentially shape municipal law towards greater regional cohesion.

The national embedding of the African Court’s judgments is based on the premise that the African human rights system, of which the Court is part, is not autonomous or detached from and external to the national legal system, but is rooted within, and shaped by domestic normative or institutional frameworks. Because they are embedded in national law, regional norms no longer serve as a source for reactive recourse to the supranational Court, but – inspired by the concrete cases resulting from other state parties – as a proactive national norm on which reliance can be placed to anticipate and prevent similar violations. By allowing the Court’s judgments to take root in all state parties, thereby reducing the need for regional recourse, the res interpretata effect serves the principle of subsidiarity.

Res interpretata reliance also promotes coherence and harmonisation by advancing the consistent interpretation of relevant norms across states,41 turning the Arusha Court’s jurisprudence into a shared interpretive framework for all states. The rationale for diffusing the African Court’s jurisprudence rests, in part, on the aspiration toward legal harmonisation and the presupposition of a community of shared – or at least cultivatable – articulated values. It anticipates a standard of protection of an African public order,42 or emerging pan-African ius commune (or African common law) through gradual convergence of national, sub-regional and continental legal norms, institutions and practices around shared African values and treaty commitments.

This aspiration animates the broader project of regional integration embodied in the AU.43 It finds expression in the AU Constitutive Act and continental governance and human rights frameworks, and is confirmed by the near-universal ratification of the three core AU human rights treaties – the African Charter on Human and Peoples’ Rights (African Charter); the African Charter on the Rights and Welfare of the Child (African Children’s Charter); and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol). These core treaties articulate Africa’s core shared values: democratic governance, popular participation, the rule of law, human and peoples’ rights and sustainable socio-economic development.44 When the African Court interprets and applies the open-ended treaty norms in concrete cases before it, it guides actors’ potentially divergent normative expectations towards a predictable horizon of expected legal behaviour.45 Its authoritative guidance provides certainty and predictability, thereby ‘stabilising normative expectations’ of states and other actors.46

While some regard this process as a form of ‘law making’, in this article the Court’s role is rather viewed as law shaping.47 Within a democratic structure, law making, as such, should remain the task of the legislature, whose democratic election legitimates this power. The Court’s interpretive precedents may have an ‘orientation’ or ‘fine-tuning’ effect on national legislation and policy, but should not bypass democratic processes. The argument that unelected national judges lack the democratic legitimacy to review the decisions of the people’s representatives is even more pertinent at the regional level, where there is a much greater distance between the electorate and the African Court judges. Rather, the Court’s interpretive precedents should stimulate dialogue, debate and deliberation, and serve as a frame of reference to guide national law-making processes.

3.2 Its basis

Firmly rooted in states’ treaty commitments voluntarily undertaken under treaty law, the legal basis of the res interpretata of the Court’s judgments is state consent.48 Ensuring that the Court’s interpretive precedents are applied domestically to analogous cases, however, is not only rooted in specific treaties, but also serves to define the content of states’ good faith commitment under general treaty law.49

A distinction should, however, be drawn between the Court’s advisory and contentious jurisdiction. While the Court’s advisory jurisdiction applies to all AU member states, the contentious jurisdiction applies only to state parties to the African Court Protocol. By allowing all AU member states to request advisory opinions,50 the Court Protocol extends the potential reach of this part of its jurisdiction beyond the states that are party to the Court Protocol. The Court’s Rules confirm this widening by requiring all AU member states to be informed of advisory requests and allowing them to make ‘observations’.51

This broadening in reach, in the first place, can be explained by the non-binding nature of the Court’s advisory opinions, from which no res judicata precedent of course emerges. For these states, the obligation to – at the very least – take the advice of the Court into account, derives from their commitment, under the AU Constitutive Act, to ‘protect’ human rights.52 The requirement under the Court Protocol that the Court’s judgments be disseminated to all AU member states also suggests the wider cross-country relevance of the Court’s decisions.53 In its Vagrancy Opinion, the Court confirmed that it has advisory jurisdiction over treaties that enjoy a ‘high’ (rather than ‘universal’) ratification status among AU member states.54 Since the three core AU treaties on which the Court relied have all been ratified or acceded to by most AU member states,55 it is unclear if, and at what point, the Court would consider that the extent of ratification falls short of grounding its advisory jurisdiction. In the operative part of the Opinion, the Court seems to suggest that its guidance to states is based on their ratification of the Charter.56 A distinction may be needed between the Court’s extended jurisdiction over AU treaties and United Nations (UN) treaties. Because the Court’s advisory jurisdiction derives from AU membership, it may confine advisory jurisdiction over UN treaties to states that are parties to the Court Protocol, as only those states have expressly accepted the Court’s expanded jurisdiction.

While the Court’s advisory opinions ‘provide guidance’ to all AU member states,57 the same cannot be said for its judgments in contentious cases. The Court’s interpretive precedents emanating from contentious cases have enhanced persuasive authority only for state parties to the core human rights treaties and the Court Protocol. All 34 state parties to the Court Protocol have ratified both the African Charter and African Children’s Charter.58 The res interpretata principle is derived from the overarching obligation of state parties to the African Charter and African Children’s Charter to adopt legislative and other measures ‘to give effect’ to treaty rights.59 In both treaties, the ‘measures’ not only relate to the implementation of specific cases, but also to ‘giving effect’ to the treaty provisions more broadly, including through the Court’s interpretative precedents.

In addition, state parties to the Court Protocol agree to the jurisdiction of the Court as the ‘independent body that was established specifically to supervise’ the Charter,60 with the exclusive and final judicial power to autonomously ‘interpret’ and ‘apply’ the Charter and other relevant human rights treaties ratified by the concerned states.61 The underlying aim of the Court’s power to make ‘appropriate orders’, namely, to remedy violations,62 can also on a purposive reading of the Protocol be extrapolated beyond inter partes disputes. Although the Court Protocol specifically obliges states to comply with the Court’s judgment in cases to which ‘they are parties’,63 nothing in the wording of the provision excludes the ‘general validity’ of this obligation (for example, beyond the parties in the specific case).64

By including the interpretation and application of a wide array of other ‘human rights’ treaties within its jurisdiction, the Court’s material jurisdiction goes beyond the three core AU treaties. Although there are some differences in treaty acceptance among the 34 states, their obligations largely converge. Although the ratification of the Court Protocol closely matches the ratification of the core AU treaties, treaties such as the African Charter on Democracy, Elections and Governance (African Democracy Charter) reveal larger discrepancies.65 As far as UN human rights treaties are concerned, all states under the Court’s jurisdiction have accepted the Convention on the Rights of the Child (CRC) and almost all have accepted the two Covenants,66 with the level of acceptance of other treaties varying more.

Taking ratification status as a strict yardstick, and as far as the Court’s judgments are based on treaties other than the two core treaties, a ‘variable geometry’ of observing differing standards may evolve even among the 34 states. The possibility of variable standards applicable to different states within the pool of 34 further arises because the African Court also finds violations of sub-regional treaties, such as the Economic Community of West African States (ECOWAS) Democracy Charter. To the extent that a the African Court’s judgment may be based exclusively on such a treaty, the resulting interpretive precedent should, from the strict perspective of state consent, only be applicable to ECOWAS member states that have also become party to that treaty.67

3.3 Its authority

Res interpretata has sui generis persuasive authority. Neither the term ‘legally binding’ nor ‘legally non-binding’ accurately captures its legal authority.68 Depending on a set of complex contextual legal, political and normative factors, the persuasiveness of a particular interpretive precedent will be located on a continuum of normativity,69 ranging from limited to highly persuasive weight.

It is clear what res interpretata effect is not. It does not bind states in the same way as treaty provisions. It does not have the immediate binding effect of a judgment concluding a contentious case between the parties.70 It does not constitute binding precedent. In hierarchical judicial systems, mostly in the Anglo-American legal tradition, that follow the rule of precedent (stare decisis), the legal principles on which a decision of a superior court is based constitute a binding precedent that has to be followed by inferior and equally-ranked courts.71 Even if the African Court’s judgments do not set a binding precedent for states not party to the decided case, its judgments have some precedential value for those states. However, the precedential value must allow states the flexibility to depart from the established legal principle if they offer reasonably persuasive grounds to do so. Interpretive precedents can therefore be understood as not giving rise to an expectation of rigid obedience, but rather to a rebuttal presumption of adherence.72

The res interpretata effect is also different from ‘ordinary’ interpretative reliance that domestic courts routinely place on the decisions of international tribunals or foreign courts. For state parties to the African Charter, African Children’s Charter and the African Court Protocol, res interpretata provides a special enhanced form of interpretive reliance, which prioritises the African Court’s case law. ‘Prioritisation’ can take the form of a routine consideration (or taking judicial notice) (as opposed to application), or according presumptive weight to all relevant African Court case law. The African Court’s judgments are qualitatively different: Among all international and foreign judicial decisions on which national courts may rely, they are the only ones originating from a judicial body whose binding human rights jurisdiction the state has expressly accepted.73

The interpretive precedents derived from contentious cases are akin to – but also different from – advisory opinions. While merits decisions are ‘binding’ (between the parties), advisory opinions are not binding, since there is no dispute and no parties. Advisory opinions do not give rise to a formal expectation of compliance. At the same time, since the opinion signals how the Court would likely rule if a similar question arose in a contentious case, a good faith commitment on the part of all relevant states can be assumed. In the Inter-American system, advisory opinions have often been regarded as highly persuasive.74

Although not necessarily constituting ‘soft law’, as such, the place of res interpretata between binding and non-binding makes it akin to ‘soft law’ standards such the ‘views’ and ‘recommendations’ of human rights treaty bodies. The International Court of Justice (ICJ) attached ‘great weight’ to the findings of the UN Human Rights Committee (HRC), even if it is not obliged to do so.75 It did so on the basis that relying on the case law of the HRC, the independent supervisory body of the relevant treaty, would provide the clarity, consistency and legal security ‘to which both the individuals with guaranteed rights and the states obliged to comply with treaty obligations are entitled’.76 The same arguments apply to the Court’s interpretive precedents.

4 From specific judgments to generalised principles

In this part, the contours of a process to distil principles from the Court’s case law are explored, followed by indicative examples drawn from a few of the Court’s contentious decisions and one of its advisory opinions.

4.1 The process

General principles are derived from a close reading of the Court’s judgments. As the unit of analysis, ‘judgment’ refers to the operative paragraph (the finding on merits and the reparation orders) and the core reasoning supporting these findings in merits decisions, and the answer and reasons provided to the question(s) posed in a request for an advisory opinion.77 The challenge is to infer an accurate and substantiated statement of principle from the specifics, without putting words in the Court’s mouth by drawing inferences that go beyond the Court’s collective finding and reasoning. One of the major factors relevant to identifying a ‘general principle’ is the clarity and quality of the Court’s reasoning.78 A general principle is most likely to emerge from a sufficiently detailed factual basis cogently linked to a reasoned legal conclusion,79 and the specificity of the Court’s remedial orders. Although it offers flexibility, ambiguity tends to impede the articulation of a general rule or principle. Obiter dicta and separate concurring opinions are distinguished from the Court’s core reasoning and not made part of the analysis. While separate dissenting opinions do not generate general principles, a lack of unanimity may detract from the persuasive authority – and the res interpretata effect – of the Court’s judgment.80

Given the Court’s expansive remedial mandate,81 a single judgment may give rise to multiple ‘general principles’. From among the diverse range of reparations that the Court may order in a single case, guarantees of non-repetition are most likely to generate general principles because they are more readily suited to the inductive exercise of distilling the general from the specific. Judgments covering an ‘objective sphere of application that exceeds the parties to the litigation’82 lend themselves to generalisation. Judgments more firmly rooted in the specific facts and country context of the case, however, would be less suited to such a process.83 While repetition of a line of reasoning in multiple judgments contributes to the emergence of a stable general principle, due to the limited number of judgments delivered by the African Court, it should be possible for such a principle to also emerge from a single judgment.

General principles emerge from the Court’s jurisprudence that goes beyond what is already self-evident. A judgment that simply reaffirms an existing legal obligation, without substantially elaborating on its content when applying it to the facts, offers little by way of clarity beyond what is already well established. When the Court in its evolutive interpretation of particularly open-ended treaty norms, such as the right to dignity, the potential for extracting general principles useful to guide third states increases.84

General principles have a particular role when the Court’s reasoning is located at the intersection between overlapping yet distinguishable treaty provisions. Because of its expansive substantive jurisdiction, the African Court is competent to find violations not only of AU human rights treaties, but also of the African sub-regional treaties and UN human rights treaties.85 However, the Court has tended to find violations primarily of the Charter, often using other treaties – and soft law instruments – to inform and steer its interpretation.86 However, in a very limited number of cases, the Court found violations of UN treaties – either together with AU human rights treaties,87 or as a self-standing basis of violation.88 These judgments invite the formulation of general principles because they clarify to states the entitlements of rights holders that go beyond the text of the Charter.

4.2 A first look: General principles derived fom the Court judgments in contentious cases

The Court’s judgments across a variety of domains hold the potential for rich normative guidance. The general principles identified below, therefore, do not constitute an exhaustive list, but are illustrative of the sizable number and wide range of matters on which the Court has already provided – or at the very least implied – guidance to specific states.89 The discussion aims to distil general, synthesised guidance from individual judgments that may potentially be applicable to national stakeholders in all concerned states. While some examples are provided here, compiling all the Court’s interpretive precedents in a single source demands further research and effort.

Among the Court’s considerable case law dealing with criminal justice, general principles may potentially be derived from judgments dealing with amnesties,90 the nature of criminal offences91 and forms of criminal punishment. An example of a general principle that has emerged in this domain may be formulated as follows: States should abolish corporal punishment in criminal settings. The issue of corporal punishment in criminal settings came before the Court in three cases concerning Tanzania.92 The Court found that Tanzanian law violated the right to dignity and the prohibition against torture and against cruel and inhuman punishment guaranteed under article 5 of the Charter.93 Tanzania was ordered to ‘expunge’ corporal punishment from its national laws.94 Even if the Court’s orders allow for legal reform beyond the criminal setting, the general principle derived from these cases is limited to the criminal sphere.95 As it is formulated, the rule is firmly rooted in three cases; it is clear; it has a comprehensive scope; and is of general application in African criminal justice systems. Another general principle pertaining to criminal justice, namely, that states should abolish the mandatory death penalty, can also be distilled from a series of cases against Tanzania in which the Court found that the mandatory imposition of the death penalty constituted an arbitrary deprivation of the right to life.96 The Court ordered Tanzania to take all necessary measures to remove the mandatory imposition of the death penalty from its Penal Code.97 In both instances, the emergent principle is based not only on the Court’s judgment, but also reinforces the position expressed by the African Commission.98

General principles may also be derived from the Court’s judgments on several aspects of criminal procedure.99 The Court’s most frequent violations finding relates to the state’s failure to provide legal assistance at its own expense to accused persons.100 Although the Charter does not expressly provide for a right to free legal aid, by relying on the International Covenant on Civil and Political Rights (ICCPR), the Court developed the following standard:101 Legal representation at state expense has to be provided to accused persons as a matter of course, without the need for their request, in all serious criminal cases, that is, all offences for which lengthy custodial sentences can be imposed.102 The emergent rule can in abbreviated form be stated as follows: Accused persons charged with serious offences should, as a matter of course, be granted free legal assistance.

Cases brought before the Court have also required it to rule on key governance issues, in particular the management of elections. A principle that has emerged is: The government should not be over-represented in the composition of the national electoral oversight body. In APDH, the Court found Côte d’Ivoire in violation of the African Charter, the African Democracy Charter and the ECOWAS Protocol on Democracy and ordered it to amend the relevant legislation to provide for a more balanced composition of its Independent Electoral Commission, to guarantee the independence and impartiality of the electoral body.103 A more complete picture of the legislative expectations of state parties in respect of legislation on electoral oversight bodies emerge from a cumulative reading of APDH and Suy Gohore, in which amendments to the Ivoirian legislation were subsequently challenged: The composition of the electoral body cannot be ‘overly dominated by any political group’,104 and the representation of government and opposition must meet the test of ‘balanced’ representation.105 However, the mere representation of political parties does not, as such, undermine the body’s independence or impartiality.106 Other possible general principles emerging from this much litigated area are that (i) candidates who are not affiliated to political parties should be eligible to stand for elected office (at presidential, parliamentary and local government level);107 and (ii) states should ensure that national consensus is observed when amending or revising their constitutions.108

The Court has handed down only a handful of judgments concerning vulnerable groups. In Ogiek109 the Court found Kenya in violation of the African Charter for evicting the Ogiek people from the Mau forest without their free, prior and informed consent. Kenya was required to take ‘all necessary legislative, administrative or other measures’ to ensure the effective consultation of the Ogiek, ‘with the right to give or withhold their free, prior and informed consent’.110 Although based on a single case, the following general principle – based on the shared core characteristics and challenges faced by indigenous peoples across Africa – can be postulated: In states where ‘indigenous peoples’ are present, they should be accorded official recognition and their effective consultation in matters affecting them should be ensured.

4.3 Principles derived from advisory opinions

As a means of assisting states ‘in fulfilling their international human rights obligations’, advisory opinions may potentially contribute to shaping public policy.111 Of the Court’s four advisory opinions, its Vagrancy Opinion has the greatest potential to steer states towards legal reform.112 In this opinion, the Court held that the ‘vagrancy’ laws, starkly reflected as part of legal coloniality across Africa, violate multiple rights in the African Charter, the African Children’s Charter and the African Women’s Protocol. It expressed particular concern that these laws are often overly broad and allow for abuse, and are disproportionately directed against poor people. Consequently, the Court affirmed that states should repeal or amend laws that criminalise ‘being idle and disorderly, begging, being without a fixed abode, being a rogue and vagabond, being a reputed thief and being homeless or a wanderer’.113 From this, the following principle can be formulated: States should repeal vagrancy offences, especially those targeting vulnerable people exposed to homelessness, poverty or unemployment.

5 Role of domestic courts in diffusing the Court’s case law

This part looks at the role of domestic judiciaries in aligning their interpretations of human rights with the interpretive precedents of the Court.

5.1 Emerging practice

Domestic courts in Africa have only to a very limited extent drawn on the Court’s decisions to resolve issues at the national level that are similar to those decided by the African Court in respect of other states. Domestic courts’ reliance on the Court’s judgments in Konaté and Mtikila, along with its Vagrancy Law Advisory Opinion, provide a few examples.

The most pertinent example is the Court’s December 2014 ruling in Konaté, which found criminal defamation laws under the law of Burkina Faso incompatible with the state’s obligations under the Charter and ICCPR. Domestic courts in three African states (Kenya, Lesotho and Malawi)114 have subsequently made at least some reference to, and decided analogous cases in line with Konaté. However, these examples are few and far between and have so far been limited to countries following the common law tradition in which reliance on judicial precedent is more common than in civil law jurisdictions. Not only the scope, but also the extent of reliance has been limited. The three courts have made little effort to integrate the Court’s decisions into their reasoning, leaving the impression that these courts’ judgments largely mention the Konaté judgment when restating the content of counsel’s arguments, rather than engaging in a thorough analysis of its persuasive weight as an analogous case with a particular status under international law.

In the first of these decisions, Jacqueline Okuta & Another v Attorney General & 2 Others,115 the High Court of Kenya in 2017 declared unconstitutional the offence of criminal defamation under section 194 of the Kenyan Penal Code. In its reasoning, the Court directly mentions Konaté twice, but conducts no analysis of the judgment.116 The Court more extensively quotes the African Commission’s Resolution 169, which provides more detailed guidance to state parties to repeal defamation laws,117 but also does not engage it in its reasoning. It seems fair to conclude that the Kenya High Court gives a cumulative reading of the various international law sources (which extends beyond the African sources mentioned here) and does not seek to highlight the relevance or persuasiveness of any particular source.

In 2018, the Constitutional Court of Lesotho in Peta v the Minister of Law, Constitutional Affairs and Human Rights & Others118 also made reference to Konaté. However, the Lesotho Constitutional Court merely mentions the Konaté decision in a brief two-sentence paragraph, without indicating its relevance or assessing the persuasiveness of the African Court’s ruling. While it mentions the earlier Kenyan case of Okuta, it does not link that decision to the Konaté judgment. Drawing inferences from the more expansive reference to Resolution 169 of the African Commission, it would appear that the normative clarity of this soft law source was more influential in the Court’s arriving at its decision than the Konaté judgment. However, it is beyond dispute that the Court was, at least indirectly, influenced by the Konaté case and the Resolution – among other considerations – in declaring unconstitutional the offence of criminal defamation under Lesotho’s Penal Code. 

In 2022 Malawi brought a criminal defamation (‘libel’) case under section 200 of the Malawi Criminal Code against Chisa Mbele over a Facebook post alleging that former defence force General Vincent Nundwe had received funds from a businessman implicated in corruption. Seeking to challenge the constitutionality of section 200, Mbele first had to persuade the Lilongwe High Court to refer the issue to the chief justice for certification as a constitutional matter.119 The Konaté judgment featured prominently before this Court: The legal challenge was framed in terms mirroring its reasoning,120 and the Court drew heavily on it in reaching its substantive finding in this case.121 Once the matter had been certified, the Constitutional Court was convened, and concluded that section 200 was unconstitutional.122 While Konaté was one among several precedents cited by the Malawi Constitutional Court, it did receive prominence in the Court’s reasoning.123

A second example relates to the African’s Court’s decision on independent candidates, Mtikila, handed down in 2013, which has been cited by the South African Constitutional Court in New Nation Movement v President of RSA (New National Movement).124 In 2020 the Court declared the South African Electoral Act 73 of 1998 unconstitutional to the extent that it required that adult citizens may be elected to national and provincial legislatures only through their membership of political parties.125 Madlanga J, who wrote the Court’s ‘first unanimous judgment’, did not apply the ‘rule’ established in Mtikila, but rather explored the relevance of the African Court’s judgment in so far as it deals with freedom of association, as provided for in article 10 of the African Charter. Despite noting the textual difference between the African Charter and the South African Constitution,126 Madlanga J found the African Court’s reasoning to be helpful in arriving at the conclusion that the freedom to associate also includes the freedom not to associate.127 This particular finding – supported by Mtikila – played an important part in the South African Constitutional Court’s conclusion in New Nation Movement.

The Court’s Vagrancy Opinion provides a third example. Although the Malawi High Court did not, in S v Henry Banda,128 strike down section 184(1)(b) of the Penal Code,129 it nonetheless criticised this provision130 and, in the process, made extensive reference to the Court’s Vagrancy Opinion. In an obiter dictum, it ‘strongly urge[d] the Executive and Legislature to urgently review the said provision’.131

The narrative of vertical judicial dialogue remains incomplete without acknowledging the extent to which domestic courts have turned a deaf ear to the African Court. The very dearth of illustrative cases of domestic judicial reliance on the African Court illustrates this point. This breakdown in communication is particularly striking in a country such as Benin, where the African Charter has been incorporated as an integral part of the law. Since the African Court’s establishment, Benin’s judiciary has shown little receptiveness to the Charter or the Court’s jurisprudence, often ignoring, bypassing or deliberately declining to engage with relevant precedents even when cited by counsel.132

The reasons for the general avoidance or disregard are varied. Some of the reasons are structural. The question of the form and extent of reliance on the African Court’s case law by domestic courts in African states arises in the course of the exercise of their usual and ordinary routine function of interpreting the law. Structural factors detracting from reliance include a lack of legal entrenchment of the treaties; a legal culture suspicious of international law; the status within the ‘constitutional bloc’ of international law as inferior to the Constitution;133 and low levels of awareness of and rare reliance by counsel on AU human rights law, including the Cour,t and its case law. In many African states, domestic courts can simply explain that the relevant treaty is not ratified, has not been incorporated or enjoys infra-constitutional status. Factors may also be more case-specific. Domestic courts may contend that they are allowed to resist applying the Court’s case law. Grounds for exemption or justification could be that the Court’s judgment is against national sovereignty because it undermines the public interest or is ‘against public policy’; that it misunderstands or is ignorant of local circumstances; that it represents an external imposition that undermines democratic legitimacy; or that it risks displacing detailed and developed national catalogues of human rights.

Clearly, national reliance on supranational principles is sensitive and complex. To overcome such tensions, it is suggested that an approach is adopted that accommodates this paradox – that it is accepted that the Court has been entrusted with the authoritative interpretation of the Convention and, at the same time, that domestic courts cannot be reduced to mere agents of Arusha, stripped of any discretion. The judicial conversation should not be a monologue. Interpretive authority cannot be unconditional and absolute, especially since it emanates from a source – such as res interpretata – that is not formally legally binding.134

5.2 Enhancing domestic judicial practice to better embed the African Court’s decisions

The jurisprudential survey above reveals that there is little indication of an awareness or understanding among national judges of the uniqueness or importance of the African Court’s judgments. On the rare occasions when its judgments are mentioned, they often appear as an indistinguishable part of the domestic court’s reasoning, absorbed into a list of diverse sources. Domestic courts seem to view the African Court’s judgments through the same prism through which they view the judgments of all other international tribunals and foreign domestic courts.

The argument is that the Court’s res interpretata findings should in all state parties be afforded a heightened level of persuasive authority, as they represent judgments rendered by a regional court expressly empowered by the ratifying states to interpret a treaty to which they have all bound themselves. The underlying ethos and logic of this framework is the pursuit of interpretive coherence and the realisation of shared normative values among the state parties.

At present, judicial practice is governed by municipal law. Two possibilities of adjusting municipal law to improve the dialogic relationship between the African Court and domestic courts in Africa are outlined below.

The first is legally entrenching interpretive reliance by domestic courts on AU human rights treaties – including the Court’s case law. To ensure consistent domestic application of the Court’s jurisprudence, national judiciaries’ competence – and duty – to apply international law, particularly AU treaties and the African Court’s case law, should be entrenched in municipal law. Without such entrenchment, reliance on the Court’s case law will be left to the capriciousness of judicial discretion. While this discretion may be effectively guided in legislation,135 anchoring it in the Constitution guarantees greater stability.136 By far the most comprehensive in this respect, the Constitution of the Seychelles requires domestic courts to take judicial notice of decisions and recommendations of UN and AU human rights treaty bodies.137

The second way of strengthening the African Court’s relationship with national judiciaries is for domestic courts to be granted the explicit competence to request interpretive guidance from the African Court. While African states have the competence to submit such requests, only two states have to date done so.138 Although not specifically mentioned in the African Court Protocol, the Court’s mandate to hear ‘any legal matter’ encompasses requests concerning the ‘compatibility of domestic laws’.139 The question arises whether an apex court of an AU member state could under this competence direct a request for an advisory opinion to the African Court. Given the small number of requests submitted to the African Court, a generous interpretation of article 4(1) of the Court Protocol is called for. Allowing also courts – rather than only the executive – to make such a request on a politically sensitive matter may minimise overt national-level politicisation of an issue.140 Since there is nothing in the Court Protocol to exclude this interpretation, and since ‘courts are ordinarily part of the state structure’, such an interpretation should extend the meaning of ‘state’, in this context, to include all organs of state.141 However, arriving at such an outcome would require that the Court adopt a generous and purposive interpretive approach, which is not what it has consistently done.142

One way in which to strengthen the argument for the domestic judiciary’s competence to make such requests under the Court Protocol is for national legal systems to explicitly allow domestic courts to make advisory requests to the African Court.143 The idea is to enhance the interaction between the African Court and national courts, thereby reinforcing the implementation of the Charter at the national level – without cases actually reaching the African Court. Domestic legislation should, therefore, be developed and adopted to spell out the circumstances and conditions under which such requests may be made. In this regard, the criteria in Protocol 16 to the European Convention,144 which allows national apex courts to refer requests to the Grand Chamber of the European Court, may be a useful guide.145 Aimed at preventing Convention violations already on the national level, and at raising awareness of the importance of the Convention among lower courts, these criteria capture the European human rights system’s spirit of subsidiarity. By stipulating that the Court’s opinions are advisory, Protocol 16 underscores that the primary interpretive responsibility remains with national courts. Such a possibility also exists in the ECOWAS Court of Justice,146 but the criteria for referral are not developed, and the procedure, to date, has seen limited use in practice.

At the level of the Court, it is disappointing that a related procedure – allowing respondent states, ‘for the purpose of executing a judgment’, to request the African Court for an interpretation of a judgment against them – has not yielded much fruit.147 The potential of this procedure as a channel of communication between the African Court and domestic courts has been constrained by the 12-month period within which states must make requests, the limitation of the request to the judgment’s ‘execution’, and uncertainty about when ‘the interest of justice’ allows for exceptions.

6 Diffusing the Court judgments into legislation and policy

While much of the discussion so far has focused on the judiciary’s role, reliance on judicial embeddedness has clear limitations. Its case-by-case nature – dependent upon access to justice and the initiation of litigation – makes it ad hoc and unpredictable and, in many African contexts, the absence of formal legal disputes precludes judicial redress altogether. Limited strategic litigation capacity, low public trust, and barriers faced by marginalised groups further diminish its effectiveness. Therefore, embeddedness must extend beyond judicial decisions to legislation, policy making, administrative and other executive action, which can provide more proactive, accessible and systemic protection. Domestic actors – law reform commissions, legislatures,148 and academics – need to debate and consider the general principles derived from the Court’s judgments.

6.1 Applying generalised rules at the national level

Assuming that the guidance outlined above can inform legislatures and policy makers in states beyond the parties to the case, questions arise regarding the applicability of these norms within the municipal laws and policies of other African states. Generalised rules should not be imposed on third states, but should be part of a contextual, participatory and dialogic process that is sensitive to legal, socio-political and other national peculiarities. The Court itself has highlighted the value of plurality and diversity when it underlined in Suy Bi Gohore that its judgment in APDH case does not dictate ‘a one-size-fits-all solution on the structure and composition of electoral bodies across the continent, since there is a variety of possibilities that may potentially meet the Court’s muster’.149

Several factors may shape the potential to transpose the generalised rule to different contexts. Applicability depends on the role of the rule in third states. On the one hand, if most states have already resolved the subject matter of the Court’s judgment, the broader continental relevance of the Court’s judgment diminishes. On the other hand, where an identified principle is still widely ignored or overridden, its domestic application is potentially more relevant. There are, for example, numerous examples of ‘vagrancy offences’ inherited from colonial times that still persist in present-day African legislation and by-laws.150 The persuasive force of the Court’s Vagrancy Opinion could therefore potentially be brought to bear on all corners of the continent.

The question may be posed as to what the role of divergence or convergence in continental practice (an ‘African consensus’) should be in assessing applicability. While superimposing a crystallised rule on a society where conflicting values mitigate against its application would curtail diffusion in that country, allowing a state to contradict a core human rights principle would detract from the norm-setting goal of the African human rights system. A distinction may in this regard be drawn between a rule calling for the abolition of the mandatory death penalty, on the one hand, and for the abolition of the death penalty as such, on the other. Between 2007 and 2017, national courts in three of Tanzania’s common law neighbours (Malawi,151 Uganda152 and Kenya)153 declared unconstitutional the mandatory imposition of the death penalty. In Rajabu154 the African Court extended this emerging sub-regional practice to Tanzania – at that time an outlier state in the region on this issue. Although this was not explicitly stated in the Court’s reasoning, Rajabu can be read as an implicit application of the ‘consensus’ element of the European ‘margin of appreciation’ doctrine: Because a (sub-regional) consensus had emerged, Tanzania was not allowed much of a ‘margin’ to deviate. Arguably, the emergent sub-regional practice on the mandatory death penalty should find continental – and not just sub-regional – application. However, should the Court find that the imposition of the death penalty, as such, violates the African Charter, a number of factors may militate against the application of the resulting interpretive precedent to all states.155

The extent of domestic application of a distilled principle will depend on a combination of action on the part of an informed legislature, often requiring the backing of the executive, and the existence of local constituencies and communities of practice evolving in support of the Court-inspired legal reform. Highlighting the role of government suggests a top-down approach. It may well be that such an approach is not inappropriate in much of Africa, where states and state institutions dominate decision making. Involving the relevant government ministries and parliamentarians in the embedding process, through elite learning and elite socialisation, is crucial to shifting the elites towards adopting ‘new logics of appropriateness’.156 In this ‘new logic’, the Court’s case law is viewed as an authoritative source to societal transformation. As much as such a shift requires elite socialisation, this has to be complemented by domestic diffusion of international norms, supported by popularisation and societal pressure in the form of mobilised domestic constituencies. Popular support sometimes is a formal requirement, for example, when referenda have to precede constitutional amendment but, more fundamentally, only genuine popular support can legitimate legislative reforms.

6.2 Shared and specific responsibilities

Domestic action has to be supported regionally. Marching under the umbrella of their ‘shared responsibility’ for advancing human rights in Africa, all AU organs, but in particular the Court, the Pan-African Parliament (PAP) and the AU Commission on International Law (AUCIL), should strengthen their coordination to ensure that the Court’s judgments are embedded at the national level. Political decision making should support the process. Policy organs have an important role to play in resource allocation, and in their decisions on the Court’s activities.157

To allow users to readily grasp the legal significance and implications of its case law, the Court should develop an analytical case law guide in the form of a comprehensive, accessible and regularly updated knowledge-sharing platform of all its decisions.158 The Court should also systematically and consistently report on its consolidated case law to all relevant AU organs, including the PAP. Diffusion of the Court’s interpretive precedents should be integrated into its advocacy missions, its networks and platforms for dialogue. Visits should be used as opportunities to engage with national authorities and domestic stakeholders with a view to infusing all of its relevant case law into the national legal system. Similarly, the Court’s National Judicial Dialogues should primarily serve as informational and educational opportunities to reflect on how national judges could better understand and more frequently apply the salient principles emerging from the Court’s case law.159 The Court’s reasoning should be more robust, detailed and consistent. The protracted nature of the process in APDH begs questions about the desired level of specificity in the Court’s remedial orders. A strong case can be made that, if the Court’s order was more detailed and precise, much of the back-and-forth could have been avoided.

The PAP is empowered to work towards the harmonisation and coordination of the laws of AU member states.160 It is therefore well placed to derive legislative measures from the Court’s work by adopting model laws or recommendations. It should under a standing item discuss the legislative implications of the Court’s decisions at all its sessions.

The AUCIL is mandated to conduct research and take action towards the ‘codification and progressive development of international law’ in Africa, with specific ‘attention’ to AU treaties and the decisions of AU organs.161 To this end, it may also propose ‘model regulations’ emanating from ‘emerging trends in states’ practice’.162 The AUCIL, therefore, appears very well placed to guide policy and legislative development across African states though researching and deliberating on the concrete content of the emerging practice emerging from the Court’s judgments.

7 Conclusion

Even where direct compliance with the African Court’s judgments is limited, its jurisprudence can, based on the principle of res interpretata, shape domestic law indirectly in third states when national constitutional, legislative and policy actors draw context-specific guidance from the Court’s interpretative precedents. Important principles of law in areas as diverse as the imposition of the mandatory imposition of the death penalty, the provision of free legal aid, election management and official recognition of indigenous peoples can be generalised from the Court’s relatively modest jurisprudence. For a court under the weight of challenge against its authority and legitimacy, this could be a timely boost.163 While not legally binding on states beyond the dispute, the African Court’s interpretive precedents have considerable persuasive weight. Where exactly their authority is located on a continuum of persuasion depends on factors such as the nature of the judgment (contentious or advisory) and treaty ratification by the relevant states.

To enhance the domestic effects of the Court’s judgments, considerable legal reform is required. In most countries, the African Charter and other AU treaties need to be made an integral part of, and be accorded constitutional status under municipal law.164 In addition, national law should expressly require domestic courts to take interpretive cognisance of AU human rights law, including the Court’s case law, and should enable domestic apex courts to request interpretive guidance from the African Court.

Of course, embeddedness needs to go wider than the African Court. Beyond enforcing or diffusing the Court’s judgments, states should adopt national legislation implementing regional decisions, integrate regional jurisprudence into legal education, and promote the Court’s case law in law school curricula to foster the ‘Africanisation’ of legal culture. Civil society engagement, accessible information, reoriented legal education and an informed media remain essential to embed the African Court’s jurisprudence within national legal and societal consciousness.

To be clear, the argument in favour of the third party effect of the Court’s judgments is not a call for its prioritisation as ‘continental constitutional court’ at the expense of providing individual remedial redress.165 Rather, the argument builds on the Court’s practice of addressing both the victim’s immediate distress and the need for longer term transformative reform.

The guiding role of the African Court’s judgments, which is the focus of this article, should not be considered in isolation from the complementary and mutually reinforcing standard setting by the African Commission and African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee).166 The obvious difference is that the principles emanating from the Court are derived from binding judgments, while the other two bodies are quasi-judicial in nature. However, experience shows that such a distinction is not decisive, as the persuasive authority of a court’s judgment (and soft law generally) depends on a complex network of context-dependent factors.

Although this article focuses on the African Court, it should be recalled that the ECOWAS Court of Justice is also empowered to interpret the African Charter, and has done so in hundreds of cases.167 Despite its historically narrow remedial approach, the ECOWAS Court has broadened its reparations to include guarantees of non-repetition and orders for legislative alignment with the Charter.168 A comprehensive review of its judgments is needed to distil complementary general principles to guide national actors in those states that fall under the jurisdiction of both the African and ECOWAS Court.169

The question may be posed as to whether it is not wishful thinking to invest in the prospect of cross-country diffusion of the Court’s judgments when its orders in specific cases have not been widely complied with. While scepticism is understandable given low compliance rates and state resistance to supranational oversight, a distinction must be drawn between contentious judgments, which are often politicised and resisted, and general principles derived from other cases or advisory opinions, which may face less opposition. Effective diffusion, therefore, requires a context-sensitive, dialogic approach that balances flexibility with the broader goal of building a pan-African human rights ius commune in human rights, grounded in convergent national laws and practices shaped by the Court’s jurisprudence. As African states increasingly come to repeal and reform colonially-inherited laws, they are likely to look inward, for example, at their local customary laws, but they may also seek guidance from outside. In this process, the judgments of the only African binding judicial institution – the African Court – may serve as a catalyst for continent-wide deliberative engagement on the meaning of an authentic African legal culture based on human dignity.