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The Judicial Power of Africa's Supranational Courts: Introduction

Document Cited in Related
Vincent
DOI10.3366/ajicl.2020.0328
Pages1-9
Published date01 November 2020
Date01 November 2020
INTRODUCTION

Africa boasts an exceptionally high number of international courts, most of them relatively young.1 The continent is home to a variety of regional integration courts, multiple institutions exercising a supranational human rights jurisdiction and a new continental free trade agreement with its own dispute settlement system. These institutions attract increasing attention from scholars,2 providing novel insights into the factors that determine the establishment, success and failure of international courts. This Special Issue seeks to contribute to this scholarship by discussing a variety of institutions and their jurisprudence in light of their socio-political context. The different contributions seek to analyse the judicial power exercised by these courts, investigating how they perceive and exercise their mandate, and how states react to their judgments. Some contributions analyse specific institutions, including the African Court on Human and Peoples’ Rights (ACtHPR), the Court of Justice of the Economic Community of West African States (ECOWAS), the Tribunal of the Southern African Development Community (SADC) and the dispute settlement mechanism of the African Continental Free Trade Area (AfCFTA). Other contributions provide general perspectives on the role of supranational courts in Africa, addressing dynamics that are potentially common to supranational institutions operating in different fields of law. In this way, the Special Issue analyses the legitimate role of Africa's international judiciary as envisaged by contracting states, civil society and the institutions themselves, and the extent to which the courts are able to fulfil this role in practice.

 TOWARD A TYPOLOGY OF AFRICA'S SUPRANATIONAL COURTS

Africa's international courts form part of a complex network of regional cooperation mechanisms, with partly overlapping jurisdiction and membership.3 The Oxford Handbook on International Adjudication lists the following operative international judicial bodies in Africa:4 the African Court on Human and Peoples’ Rights (ACtHPR),5 the Arab Investment Court (AIC),6 the ECOWAS Court of Justice,7 the East African Community Court of Justice (EACJ),8 the Court of Justice of the Central African Monetary Community, the Southern Africa Development Community Tribunal (meanwhile suspended),9 the Court of Justice of the Common Market for Eastern and Southern Africa (COMESA Court),10 the Common Court of Justice and Arbitration (CCJA) of the Organisation for the Harmonisation of African Business Laws (OHADA),11 and the Court of Justice of the West African Economic and Monetary Union (WAEMU Court).12

The majority of these institutions were originally established as regional economic integration courts, but several of them acquired different functions in practice.13 For instance, both the COMESA Court and the WAEMU Court deal mostly with employment disputes between the organisation and employees. In the case of the COMESA Court, this has been explained by reference to the Court's location (first Lusaka, now Khartoum), its restrictive and formalistic approach to legal interpretation, the absence of a regional civil society intent on litigating before the Court, and a general hostility towards judicial oversight prevalent in the region when the Court started its work.14 In the case of the WAEMU Court, the lack of cases other than employment disputes has been related to overlaps in jurisdiction with other regional institutions, the limited access to the Court for parties other than the Commission and member states, and the reluctance of the latter to bring cases against each other.15

Several other regional integration courts have risen to prominence because of their human rights jurisdiction.16 In 2005, the ECOWAS member states gave the Court jurisdiction over human rights violations,17 while in 2007, the EACJ recognised its own human...

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