The Makings of Remedies: The (R)evolution of the African Court on Human and Peoples’ Rights' Remedies Regime in Fair Trial Cases

Published date01 November 2020
Date01 November 2020

Human rights systems are often assessed on the substantive rights they provide, rather than the remedies available when those rights are violated.1 This article reflects on the (r)evolution of the remedies regime of the African Court on Human and Peoples’ Rights (African Court or Court) for violations of the right to a fair trial. The article traces these developments starting with the cases of Alex Thomas v. Tanzania,2 decided in late 2015, and Mohamed Abubakari v. Tanzania,3 decided in mid-2016. These two cases are significant to the jurisprudence of the African Court for a number of reasons. First, they marked the initial instance in which a state party to the African Charter on Human and Peoples’ Rights (African Charter) requested the interpretation of a judgment by the Court. Second, as is argued here, the requests for interpretation4 in both cases triggered an evolution, and perhaps even a revolution, between 2015 and 2018 in terms of the kinds of remedies the African Court provides in fair trial cases. As an area that requires more study in general, and in particular in relation to the African Court, this article traces the metamorphosis of the remedies regime of the African Court during a time when its approach evolved immensely.

The African Court is not the only international human rights court (IHRC) that provides remedies to victims of human rights violations. The European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) have also been prolific actors in their own regions. As one of the youngest courts of its kind, the African Court has also drawn on the work of these other IHRCs to help establish its own case law.5 While the remedies regimes of the ECtHR and IACtHR have received attention, the remedies regime of the African Court has remained relatively under-studied. This article helps to fill that gap by focusing on the changes that took place in the remedies regime of the African Court between 2015 and 2018 for fair trial violations. The question to be answered is, therefore; how has the African Court interpreted its power to provide remedies for violations of the right to a fair trial over time?

The impetus for this question emerged from a series of events related to two of the African Court's leading cases. In both Alex Thomas and Mohamed Abubakari the African Court ordered Tanzania to take all necessary/appropriate measures within a reasonable time frame to remedy the violations found, but excluded the option of a retrial.6 Both subsequent requests for interpretation by Tanzania related to the same core issue: what did the African Court mean by ‘all necessary/appropriate measures’ and how should it go about remedying the violations found?

From these early cases to the more recent set of cases decided in late 2018, a trend can be identified in the African Court's jurisprudence: It has become more precise, as well as bolder in terms of the types of remedies it provides for fair trial violations. This shift in the Court's behaviour illustrates the evolving approach to its remedies regime.

The article starts with setting out the wider discussion on how IHRCs provide remedies for rights violations (section II), to embed the work of the African Court in a wider discourse. It then follows the chronology of the jurisprudence of the African Court between 2015 and 2018 to illustrate how the jurisprudence has developed over time (section III). The relatively large number of fair trial cases7 provide a rich illustration of how the African Court has matured in terms of its remedies regime. It also elucidates how the Court has repositioned itself vis-à-vis states, with special attention given to its most prolific respondent: Tanzania. The final section reflects on the three typologies of remedies provided in fair trial cases and analyses the developing practice of the African Court in light of the broader discussion on remedies at IHRCs (section IV), before concluding.

The aim is to explore the work of the African Court and bring to light the important changes that are taking place in terms of its practice. As the newest IHRC of its kind, the African Court is often neglected in larger comparative studies of IHRCs. The article demonstrates how the jurisprudence of the Court, when it comes to remedies in fair trial cases, has gone through three periods of evolution, each providing the victims with progressively more access to various types of reparations. Most importantly, it illustrates that the young Court is starting to develop a robust body of work which provides more legal security to victims and clearer instructions to states.


IHRCs have the ability to provide remedies when violations of the rights contained in the respective treaties they have jurisdiction over are violated.8 As part of the international legal system, to which the African Court, for example, has made reference, it is pertinent to first address how remedies are dealt with in international law in general. The core principle of remedies in international law was set out in the Chorzow Factory9 case, according to which: ‘[R]eparation must, as far as possible, wipe out the consequences of the illegal act and re[-]establish the situation which would, in all probability, have existed if that act had not been committed.’10 The ideal remedy is ‘[r]estitution in kind, or if this is not possible, payment of a sum corresponding to the value which restitution in kind would bear.’11 This principle was further expanded upon in the LaGrand12 case ‘to include assurances of non-repetition, and in Avena[13] to the power to order restitution’.14 The International Law Commission's (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ILC Articles) have also laid out the various types of remedies available.15

The link between general international law, the lex specialis regimes of IHRCs and the relationship between IHRCs is discussed by Gray:

In human rights tribunals, in cases brought by individuals, [actual restitution] has grown in importance in recent years. But where other tribunals have quoted the Chorzow principle, they have generally done so simply in support of the principle of full reparation. The international tribunals under consideration make little if any reference to each other's jurisprudence on remedies. It seems that there may be many special regimes on remedies rather than one universal regime.16

While there might not be a universal regime of remedies,17 the African Court18 has not viewed its remedies regime in isolation of the practice of other IHRCs or general international law. For example, in the first case concerning reparations, the African Court referred directly to international law:

One of the fundamental principles of contemporary international law on State responsibility, that constitutes a customary norm of international law, is that, any violation of an international obligation that has caused harm entails the obligation to provide adequate reparation. The locus classicus in this regard is the Germany v. Poland (Factory at Chorzów) Case […].19

In another example, in the case of Alex Thomas, the African Court used the case of Loayza-Tamayo v. Peru20 as a benchmark to establish the criteria for what constituted ‘very specific and/or compelling circumstances’, which would warrant the African Court to order the release of the applicant from prison.21 In fact, the test of ‘specific and/or compelling circumstances’ became the foundation on which the African Court built its remedies regime in fair trial cases

Treaties provide a great variety of powers to tribunals with regards to remedies. Many tribunals ‘have been given express powers to decide on reparation. Some constituent instruments specify which remedies may be awarded; some do not. Some provide only for the award of compensation; others are more wide-ranging.’22 Under the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol)23 the African Court has the express power to provide remedies under Article 27(1): ‘If the Court finds that there has been [a] violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.’ Under the ILC Articles, reparation is defined as ‘restitution, compensation and satisfaction, either singly or in combination’.24 The United Nations Declaration of Basic Principles on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UN Basic Principles)25 also supports a broad array of reparations and points to five main options: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.26 In addition to the Court's power under Article 27, it also has the possibility to grant provisional measures, in cases of ‘extreme gravity and urgency’.27 Like the Protocol, the Rules of Court28 further specify that the African Court can issue a judgment on reparations, and also discusses the possibility of amicable settlement.29

As the African Court has reflected on how other IHRCs have provided remedies, an overview of the two other prominent lex specialis regimes to which the African Court often refers are imperative to better understand the regime adopted by the African Court.

First, Article 41 of the European Charter on Human Rights (ECHR)30 is central to the operation of the ECtHR, as are the Practice Direction on Just Satisfaction Claims31 and Rule 60 of the Rules of Court.32 Pilot judgments, which were adopted as a tool to manage the case load of the ECtHR due to the large number of repetitive cases, have also played an important role in elucidating the types of remedies available.33 As a result...

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