Abstract
This chapter critically analyses the jurisprudence of the African Commission and the Court on Human and Peoples’ Rights on provisional measures, as well as archival documents of the African Union. Next to the legal foundation of provisional measures in the African system, it discusses a range of situations that have been submitted by complainants as urgent, of extreme gravity and carrying the risk of irreparable harm to persons. It then deals with how the supervisory mechanisms have themselves decided upon the use of provisional measures. It examines the compliance situation and analyses it from the perspective of legitimacy. It shows that the users of the system and the adjudicators continue to play their roles in the cooperative tripod, but that African states have remained the weak point in their failure to implement most of the measures issued in cases involving them. The states do not question the legal foundation of provisional measures, but certain other legitimacy concerns can be detected. The chapter suggests some strategies for addressing such legitimacy concerns, which the adjudicators could employ to enhance the protective value of the system.
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Notes
- 1.
See for instance Ssenyonjo 2012, p. 6 (asserting that gross human rights abuses in Uganda, Equatorial Guinea and the Central African Republic forced the attention of the OAU to the need to protect human rights). The OAU was transformed into the African Union (AU) in May 2001 when the Constitutive Act of the AU entered into force.
- 2.
The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, OAU Doc OAU/LEG/MIN/AFCHPR/PROT(1) Rev.2 adopted 10 June 1998 and entered into force on 25 January 2004.
- 3.
For instance, see Muigai 2012, p. 271.
- 4.
Viljoen 2012, p. 417.
- 5.
The idea of a human rights court for the continent in the 1960s and later during the drafting of the African Charter on Human and Peoples Rights (African Charter).
- 6.
See for instance Mutua 1999, pp. 351–353, 357.
- 7.
As would become evident, different legal foundations apply for provisional measures by the African Commission and the African Court.
- 8.
See Pasqualucci 2005, p. 2.
- 9.
Article 30 of the African Charter.
- 10.
The African Charter requires that the Commission sends its Activity Report to the Assembly of Heads of State for authorisation before the recommendations which are the outcomes of its communications procedure become final.
- 11.
Also see Pasqualucci 2005, n 8 above, p. 12.
- 12.
Ssenyonjo 2012, note 1 above.
- 13.
Perhaps motivated by the location of these provisions in the article dealing with ‘findings’, Viljoen for instance argues that provisional orders are judgements under the Protocol and are therefore binding on State Parties. See Viljoen 2012, n 4 above, pp. 417–418.
- 14.
Rule 51 of the 2010 Rules of the African Court of Human and Peoples’ Rights. Pasqualucci 2005, n 8 above, p. 12 also notes that some enforcement bodies apply their own rules to supplement broad terms in the relevant treaty.
- 15.
Rule 51(1) of the 2010 Rules of Procedure of the African Court. Emphasis added.
- 16.
While in Johnson v Ghana, Application no 016/2017 at para 8 of the dissenting opinion in the Order for Provisional Measures, this is the interpretation suggested by the judges who dissented, these words could also mean that the Court may initiate the measures only if it considers it in the interest of the parties or in the interest of justice to do so.
- 17.
- 18.
For instance see the position of the Human Rights Committee in Dante Piandiong Jesus Morallos and Archie Bulan v The Philippines, Communication No 869/1999, CCPR/C/70/D/869/1999, 19 Oct 2000, Human Rights Committee; also see the European Court of Human Rights in Mamatkulov and Askarov v Turkey, App Not 46827/99; 46951/199, Judg. Of 4 Feb 2005, Reports 2005-1.
- 19.
In his interpretation of Rule 111 of the 1995 Rules, Naldi concluded that ‘the purpose of interim measures is clearly then to “avoid irreparable damage being caused to the victim’’ and/or to protect the interests of the parties or to ensure the proper conduct of the proceedings’. See Naldi 2002, p. 1. Naldi apparently finds no connection with urgency.
- 20.
Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, ICJ Reports 1991, p. 12 at para 23. Also see Duxbury 2000, pp. 141, 162.
- 21.
Pasqualucci 1993, pp. 803, 833.
- 22.
Pasqualucci 1993, as above, p. 812.
- 23.
Although there are more recent communications than those cited in this paper, in which provisional measures were requested, limited access to the full decisions has restricted my sample to earlier communications used in this chapter.
- 24.
Also see Rieter 2010, p. 163.
- 25.
Naldi 2004, n 17 above, p. 6.
- 26.
Rule 79 of the Commission’s Rules of Procedure 2010.
- 27.
Rule 80 of the Commission’s Rules of Procedure 2010.
- 28.
As above.
- 29.
Communications 137/94-139/94-154/96-161/9, 7 International Human Rights Reports 274.
- 30.
The tribunal comprised of military and civilian members and its legitimacy was challenged by the applicants.
- 31.
Para 7 of the decision in Communications 137/94-139/94-154/96-161/9.
- 32.
The military junta had agreed to the proposed visit. Copies of the note verbale were sent to the Nigerian Ministry of Foreign Affairs, the Nigerian Ministry of Justice, the Legal Advisor to the Head of State, the Nigerian High Commission in Banjul, the Gambia and the Secretary General of the OAU.
- 33.
Article 1 of the African Charter obligates state parties to ‘adopt legislative and other measures’ to give effect to the rights and freedoms in the Charter.
- 34.
By the Commission’s Rules, a complaint submitted only becomes a communication after the Commission has formally decided to be seized of it.
- 35.
Para 9 of Communications 137/94-139/94-154/96-161/94.
- 36.
In their joint statement issued in May 2009, the Institute for Human Rights and Development in Africa (IHRDA), the International Centre for the Legal Protection of Human Rights (INTERIGHTS) and the Zimbabwe Lawyers for Human Rights (ZLHR) decried what they termed ‘undue delay in the consideration of communications by the African Commission. Also see Ssenyonjo 2018, p. 479, on the delays associated with the process of going through the Commission.
- 37.
On the concept of jus commune, see De Schutter 2005, pp. 16, 20.
- 38.
As Viljoen 2012, n 4 above, p. 307 notes, this aspect was a ‘departure from prevailing international law’ in the sense of ‘pre-empting the approach of the International Court of Justice … in 2001 and subsequent findings of the European Court of Human Rights and the UN Human Rights Committee …’.
- 39.
As will shortly be shown, the Commission moved away from this position in at least one of its subsequent communications.
- 40.
Communications 140/94, 141/94,145/95, reported in the Thirteenth Activity Report of the African Commission.
- 41.
Para 17 of the decision in Communications 140/94, 141/94,145/95. The decision is silent on the request made so that this is deduced from the measure requested by the Commission. For the Commission’s approach see the next section, accompanying text with footnotes 71–73.
- 42.
See para 16 of Communications 140/94, 141/94,145/95 in no 35 above.
- 43.
Para 17 of Communications 140/94, 141/94,145/95.
- 44.
Communication 133/94.
- 45.
Again, the actual request made is not available to this author therefore reliance has been made on the measure requested by the Commission. Amicable settlement was reached in this matter, leading to the termination of the request for provisional measures.
- 46.
Communication 212/98.
- 47.
Para 47 of Communication 212/98.
- 48.
As above.
- 49.
Communication 240/01.
- 50.
Para 49 of Communication 240/01.
- 51.
Para 51 of Communication 240/01.
- 52.
Communication 250/02.
- 53.
Para 9 of Communication 250/02.
- 54.
Para 10 of Communication 250/02.
- 55.
Since only a handful of African states have made the Article 34(6) declaration required for non-state actors to access the Court directly against a state, the Commission acts as the channel for cases to be brought against states that have ratified the Court’s Protocol but have not made the declaration.
- 56.
Application no. 004/2011 reported in (2011) African Court Law Report (AfCLR) 17. This is the first case referred to the Court by the Commission.
- 57.
Based on the requirement for states parties to the African Court Protocol to make a declaration in accordance with Article 34(6) of the Protocol as a precondition for individuals and NGOs to submit cases directly to the court, actions by non-state actors can only currently be brought against the eight states that have made the declaration. By Article 5(1)(a), the African Commission is authorised to bring actions against states parties to the Protocol that have not made the Article 34(6) declaration. Non-state actors first bring a communication to the Commission, which then makes the decision to bring an action to the Court on the basis of the communication originally submitted to it.
- 58.
Para 8 of the Order in the Libya 1 case.
- 59.
As above.
- 60.
Article 27(2) of Court’s Protocol and Rule 51(1) of the Rules are invoked.
- 61.
For instance, see para 11 of the Order in the Libya 1 case.
- 62.
In relation to the ICJ on this point, see Pasqualucci 1993, n 21 above, 814.
- 63.
On the criteria applied by the ICJ, see Duxbury 2000, n 20 above, 162.
- 64.
Paras 21–23 of the Order in Libya 1 case.
- 65.
Para 25 of the Order in Libya 1. The order contained the timeframe within which the state was required to report back to the Court on the measures taken.
- 66.
(2013) 1 AfCLR 193.
- 67.
The eviction notice terminated a ban on land transactions which was based on a 1995 order of the High Court of Kenya. The African Commission itself had issued provisional measures which Kenya apparently disregarded. At para 8 of the Provisional Measures Order, the Court had decided not to order provisional measures proprio motu in view of the order by the Commission.
- 68.
Para 8 of the Order of Provisional Measures, Kenya case.
- 69.
Para 9 of the Order for Provisional Measures, Kenya case.
- 70.
Para 22 of the Order for Provisional Measure Kenya case.
- 71.
As above.
- 72.
Keller and Marti 2013, pp. 326–327.
- 73.
Paras 23–24 of the Order for Provisional Measures.
- 74.
Para 25 of the Order for Provisional Measures.
- 75.
(2013) 1 AfCLR 145.
- 76.
Para 3 of the Libya 2 Order for Provisional Measures.
- 77.
Para 4 of the Libya 2 Order for Provisional Measures.
- 78.
Para 7 of the Libya 2 Order for Provisional Measures.
- 79.
Paras 15–16 of the Libya 2 Order for Provisional Measures.
- 80.
Paras 16–17 of the Libya 2 Order for Provisional Measures.
- 81.
See para 19 of the Libya 2 Order for Provisional Measures.
- 82.
Paras 2–4 of Judge Ouguergouz’s separate opinion in Libya 2.
- 83.
Para 4 of Judge Ouguergouz’s separate opinion in Libya 2.
- 84.
(2013) 1 AfCLR 310.
- 85.
Para 19 Konaté v Burkina Faso, Order for Provisional Measures, 4 October 2013.
- 86.
Paras 1–3 of the Joint dissenting opinion of Judges Ramadhani, Tambala and Thompson in the Konaté case.
- 87.
Para 4 of the Joint dissenting opinion of Judges Ramadhani, Tambala and Thompson in the Konaté case.
- 88.
Para 22 of the Order for Provisional Measures in the Konaté case.
- 89.
(2016) 1 AfCLR, 587 Order for Provisional Measures, 18 March 2016.
- 90.
Paras 15–16 of the Order for Provisional Measures in the Guehi case.
- 91.
Para 23 of the Order for Provisional Measures in the Guehi case.
- 92.
Ally Rajabu & Others v Tanzania, Order, 18 March 2016/007/2015 (2016), 1AfCLR 590.
- 93.
Paras 17–19 of the Order for Provisional Measures in the Rajabu case.
- 94.
Para 22 of the Order for Provisional Measures in the Rajabu case.
- 95.
Application no 001/2017, Order for Provisional Measures of 24 November 2017.
- 96.
Para 5 of the Order for Provisional Measure in the Woyome case.
- 97.
Para 27 of the Order for Provisional Measures in the Woyome case.
- 98.
In order for a rights protection system to be functional, aggrieved persons must approach and invoke the processes of the mechanism, the mechanism must be responsive and active while the states must be willing to participate and comply even when an adverse decision is reached against them.
- 99.
Juma 2012, pp. 344, 366.
- 100.
- 101.
Paras 87–88 of the decision in the Saro-Wiwa communication.
- 102.
See n 49 above.
- 103.
Para 11 of the Bosch communication, n 49 above.
- 104.
See n 46 above.
- 105.
See n 52 above.
- 106.
Para 12 of the Zegveld and Ephrem communication, n 52 above.
- 107.
See n 40 above.
- 108.
Para 14 in n 40 above.
- 109.
Due to space constraints, only the more recent activity reports (40th–47th) are considered here.
- 110.
The Activity Report is for the period from 15 December 2015 to April 2016 and covers the 19th extra-ordinary session and the 58th ordinary session.
- 111.
40th Activity Report, December 2015–April 2016, paras 18–19 at p. 6.
- 112.
The 41st Activity Report is for the period May–November 2016 and covers the 20th extra-ordinary session and the 59th ordinary session. See pp 7 and 10.
- 113.
Para 11 of the 41st Activity Report.
- 114.
See para 29 of the 43rd Activity Report, covering the 22nd extraordinary session and the 61st ordinary session of the Commission.
- 115.
Communication 507/15.
- 116.
The 44th Activity Report is for the period 15 November 2017–9 May 2018, covering the 23rd extraordinary session and the 62nd ordinary session of the Commission.
- 117.
See para 36 of the 45th Activity Report. The report is for May–November 2018 and covers the 24th extraordinary session and the 63rd ordinary session.
- 118.
This report is for 14 November to 14 May 2019 and covers the 25th extraordinary session and the 64th ordinary session.
- 119.
See para 32 of the report.
- 120.
See para 34 of the 47th activity Report, for the period 14 May–10 November 2019, covering the 26th extraordinary session and the 65th ordinary session.
- 121.
In fact, the Reports show that some states actually respond positively to some of the urgent appeals made by the Commission.
- 122.
The Executive Council is the second organ in the AU’s hierarchy and is comprised of the Ministers of Foreign Affairs or other such Ministers designated by the governments of member states. See Article 10 of the Constitutive Act of the AU. In practice, the Executive Council acts on behalf of the heads of state.
- 123.
EX.CL/Dec. 887 (xxvii).
- 124.
Para 12 of EX.CL/Dec. 887 (xxvii).
- 125.
Para 4 of the Executive Council Document, EX-CL/Dec. 948 (XXX).
- 126.
Para 6 of EX-CL/Dec. 948 (XXX).
- 127.
As above.
- 128.
Para 9 in each Council Document EX.CL/Dec. 995(xxxii) and para 9 of Council Document EX.CL/Dec. 1013 (xxxiii).
- 129.
In its Decision on the 37th Activity Report of the Commission, EX.CL/Dec. 864 (xxvi), the Council requested the Commission to expunge reports on two communications involving Rwanda in order to give Rwanda opportunity to make oral presentation ‘as requested through various correspondence’ to the Commission. See para 8.
- 130.
African Court Activity Report 2017, EX.CL/1057(XXXII), 22–26 January 2018, pp. 12–13.
- 131.
As above.
- 132.
See n 95 above.
- 133.
See n 95 above.
- 134.
See for instance Pasqualucci 2005, n 8 above, p. 7.
- 135.
I make this claim fully aware of the fact that states have previously challenged the bindingness of the Commission’s outputs. See Viljoen 2012, n 4, 339.
- 136.
See, for instance, Tanzania’s communication to the African Court, n 130 above. The EXCO in respect of Rwanda.
- 137.
See n 130 above.
- 138.
Generally see Cohen 2015, p. 506.
- 139.
Also see Pasqualucci 1993, n 21 above, p 823.
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Ebobrah, S.T. (2021). Provisional Measures in the African Human Rights System: Lingering Questions of Legitimacy. In: Rieter, E., Zwaan, K. (eds) Urgency and Human Rights. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-415-0_5
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