Is the African Court on Human and Peoples’ Rights in an Existential Crisis?
| DOI | 10.1177/09240519211072424 |
| Author | Ayyoub Jamali,Martin Faix |
| Date | 01 March 2022 |
| Published date | 01 March 2022 |
| Subject Matter | Articles |
Is the African Court on Human
and Peoples’Rights in an
Existential Crisis?
Martin Faix and Ayyoub Jamali
Department of International and European Law, Faculty of Law, Palacký University
Olomouc, Olomouc, Czech Republic
Abstract
Employing a sociological perspective on the law, this study explores instances of resistance against
the African Court on Human and Peoples’Rights, the African Union’s continental human rights
judicial body. This approach allows us to examine different forms of resistance that might not
necessarily be of a legal character, but which may still have profound implications for the
Court’s authority, legitimacy, and operation. Accordingly, the article identifies two forms of resist-
ance against the African Court: ‘pushback’and ‘backlash’. The former refers to an ordinary form of
critique directed against the overall development of an international court, while the latter is
understood as an extraordinary form of critique that puts the fundamental authority of a court
at stake. While pushback was mainly seen in the early stages of the Court’s establishment, backlash
started to emerge following its ground-breaking judgments that caused heated debates on contro-
versial topics. This article concludes that based on the identified and analysed forms of resistance,
it is doubtful that the African Court can maintain and fulfil the purpose for which it was estab-
lished: the protection and promotion of human rights in Africa.
Keywords
African Court on Human and Peoples’Rights, resistance, withdrawal, article 34 (6) of the Founding
Protocol, non-compliance, Malabo Protocol
Corresponding author:
Ayyoub Jamali, Department of International and European Law, Faculty of Law, Palacký University Olomouc, Olomouc,
Czech Republic.
E-mail: Hazhar.jamali@gmail.com
Article
Netherlands Quarterly of Human Rights
2022, Vol. 40(1) 56–74
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/09240519211072424
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1. INTRODUCTION
Despite the advancement of international human rights law, human rights and the system of its
international protection have come under increased pressure in recent years. In fact, a number of
international courts and institutions have faced different patterns and forms of resistance against
their development and authority.
1
The issue of resistance in the form of non-compliance with judgments exists in all regional
human rights courts, despite the fact that States’compliance with judgments of a judicial body
is a fundamental commitment when it enters such a mechanism.
2
This problem, compounded by
several other forms of resistance, poses a significant threat to the African continent’s future protec-
tion of human rights.
1. Within the African continent, a number of regional and sub-regional institutions have faced resistance from
Member States. In Southern Africa, the Southern African Development Community Tribunal (SADC Tribunal)
was de facto suspended in the aftermath of its ruling on the highly controversial case related to Zimbabwe’s
land reform programme. In East Africa, the Kenyan Government sought to shut down the East African Court
of Justice (EACJ) for its provisional order on a case related to the slate of candidates chosen by Kenya to sit in
the East African Legislative Assembly (EALA). In West Africa, the political leaders of Gambia sought to limit
the human rights jurisdiction of the Court of the Economic Community of West African States (ECOWAS) fol-
lowing its decision on cases involving the allegation of torture of a dissident journalist. It has also been argued that
the African Commission had faced the problem of resistance in a way that has caused it to struggle to use its
mandate and make a real impact on the protection of human rights in the continent. Not limited to Africa, a
similar trend can be observed in Europe, where the Russian Constitutional Court ruled that, because of the provi-
sions of Russian constitutional law, the decisions of the European Court of Human Rights (ECtHR) could not be
executed. The Inter-American Court of Human Rights (IACtHR) has also been a target of States’backlash, where
Venezuela and Trinidad and Tobago ended up withdrawing from the Court. See generally following sources:
Karen J. Alter, James T. Gathii and Laurence R. Helfer, ‘Backlash against International Courts in West, East
and Southern Africa: Causes and Consequences’(2016) 27 European Journal of International Law 293; Marten
Breuer, Principled Resistance to ECtHR Judgments - A New Paradigm? (Springer Berlin Heidelberg 2019);
Laurie Nathan, ‘The Disbanding of the SADC Tribunal: A Cautionary Tale’(2013) 35 Human Rights
Quarterly 870; Ximena Soley and Silvia Steininger, ‘Parting Ways or Lashing Back? Withdrawals, Backlash
and the Inter-American Court of Human Rights’(2018) 14 (2) International Journal of Law in Context 237;
Erik Voeten, ‘Populism and Backlashes against International Courts’(2019) 18 (2) American Political Science
Association 407; Simon Zschirnt, ‘Is the Inter-American Human Rights System Biased? A Quantitative
Analysis of Regional Human Rights Litigation in the Americas’(2017) 17 International and Comparative Law
Review 51; Andreas Follesdal, ‘Survey Article: The Legitimacy of International Courts’(2020) 28 The Journal
of Political Philosophy 476; Stiansen Øyvind and Erik Voeten, ‘Backlash and Judicial Restraint: Evidence
from the European Court of Human Rights’(2020) 64 International Studies Quarterly 770; Mikael Rask
Madsen, Pola Cebulak and Micha Wiebusch, ‘Backlash against International Courts: Explaining the Forms and
Patterns of Resistance to International Courts’(2018) 14 International Journal of Law in Context 197.
2. Dia Anagnostou and Alina Mungiu-Pippidi, ‘Domestic Implementation of Human Rights Judgments in Europe: Legal
Infrastructure and Government Effectiveness Matter’(2014) 25 European Journal of International Law 205, 208;
David C. Baluarte, ‘Strategizing for Compliance: The Evolution of a Compliance Phase of Inter-American Court
Litigation and the Strategic Imperative for Victims’Representatives’(2012) 27 (2) American University International
Law Review 263, 290-291; Daniel Abebe, ‘Does International Human Rights Law in African Courts Make a
Difference?’(2017) 56 Virginia Journal of International Law 527, 530, 532, 549-564; Cecilia M Bailliet, ‘Measuring
Compliance with the Inter-American Court of Human Rights: The Ongoing Challenge of Judicial Independence in
Latin America’(2013) 31 Nordic Journal of Human Rights 477; Klaas de Vries, ‘Implementation of Judgments of the
European Court of Human Rights’(PACE, Report, 9 September 2015, Doc 13864)
XRef/Xref-XML2HTML-en.asp?fileid=22005&lang=en> accessed 25 October 2021; Diana Panke, ‘The European
Court of Human Rights under scrutiny: explaining variation in non-compliance judgments’(2020) 18 Comparative
European Politics 151.
Faix and Jamali 57
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