Tom Gerald Daly
University of Melbourne
In September 2017 I was engaged by the African Court on Human and Peoples’ Rights (‘African Court’) to propose a design for an African Judicial Network, to create a platform for formal collaboration between courts and other judicial bodies across the African Union (AU). The African Court has now permitted the final version of the report to be made public. Titled ‘An African Judicial Network: Building Community, Delivering Justice’ (December 2017), it can be accessed on the website of the Constitution Transformation Network (ConTransNet) at Melbourne Law School.
This blog post discusses three key aspects of this report, of interest to constitutional lawyers: (i) the growing ‘constitutional’ role of the African Court; (ii) the proposed design of the African Judicial Network; and (iii) selected insights on the nature of domestic constitutional systems in the AU, relevant to the Network’s design and development.
The growing ‘constitutional’ role of the African Court
In recent years the African Court has developed a robust jurisprudence, signalling its aim to serve as a form of pan-regional ‘constitutional court’ for the 55 member states of the African Union (AU). Based in Arusha, Tanzania, it is the first continental court with human rights jurisdiction at the AU level, charged with interpreting the almost-uniformly ratified African Charter on Human and Peoples’ Rights (and other human rights treaties ratified by respondent states). 30 of the 55 AU member states have accepted its jurisdiction, and 9 states have extended access by individuals and NGO to the Court by making a special declaration under the Court’s founding treaty (although Rwanda withdrew this declaration in 2016).
The Court has taken an energetic approach to its mandate since its first judgment in 2009, finding violations of the African Charter (and other rights treaties) in every merits judgment it has issued (12 at the time the report was finalised). These include the rights to free association, to participate freely in government, freedom of expression, fair trial and equal protection of the law, as well as the rights to non-discrimination, culture, religion, property, natural resources and development. While the Court has faced resistance from various state actors (e.g. the Rwandan and Tanzanian governments), its docket and profile continue to grow. Its future impact across the AU could be significant.
Developing an African Judicial Network
The proposal to establish an African Judicial Network reflects the perceived need for enhanced communication, understanding, and co-operation among courts at different levels of the AU. It also builds on pre-existing efforts spearheaded by the African Court to enhance communication, including the Court’s visits to AU states (‘sensitisation missions’) and the biennial African Judicial Dialogue (AJD), first held in Arusha in 2013.
The proposed design for the Network, set out in Section 13 of the report, is based on extensive analysis of international judicial networks in Latin America, Europe, and the AU. The report reveals a remarkable proliferation of such networks, with some 20 networks operating within the AU in the area of constitutional and human rights alone. None of these networks links domestic courts, regional community courts, and the African Court: most are based on regional ties (e.g. Southern African Chief Justices Forum), linguistic ties (e.g. the Francophone ACCPUF) or shared legal tradition.
The report was presented at the Third AJD convened by the African Court in Arusha, Tanzania, in November 2017, and adopted by the delegates, including judges from the African Court, regional community courts, and highest domestic courts across the AU, among others. It was subsequently revised to incorporate a separate proposal to establish an African Centre for Judicial Excellence (ACJE). The proposal can be summarised as follows:
- The Network will be established on a pilot basis, and will develop in planned phases;
- Full members will include the African Court, courts of Regional Economic Communities (e.g. ECOWAS, SADC), and highest domestic courts of AU member states;
- Observer members may include selected highest domestic courts and international human rights courts outside the AU, and selected courts operating within the AU, e.g. international criminal courts;
- Four key organs will be the Congress, Management Committee, Cross-Network Advisory Group, and Judicial Training Advisory Group;
- The Network would begin by focussing on enhancing understanding of the African Charter, producing a user-friendly bibliography of African human rights law, focused on judges’ needs; and ‘mapping’ judicial systems across the African Union;
- Activities at a later stage may include production of model training guides and judicial handbooks; and a judicial exchange programme to provide a useful way of increasing cross-system knowledge among judges.
Selected insights on the nature of domestic constitutional systems in the AU
A key aim in drawing up the proposals above was to design a network tailored to the AU context. Drawing on existing research – including Charles Fombad’s latest collection – and taking a comparative perspective, the following are key factors taken into account in designing the African Judicial Network:
- Diversity: A clear barrier to AU-wide judicial communication and understanding is the very significant diversity of languages, legal traditions, and governance systems. This is a clear difference compared to Latin America, for instance, where most states belong to the civil law tradition; share a language (Brazil being the key exception); share a common 200-year-old constitutional heritage; have ratified the American Convention on Human Rights (ACHR); and have accepted the jurisdiction of the Inter-American Court of Human Rights.
- Limited penetration of international law at the domestic level: Even in monist constitutional systems, reference to international law and jurisprudence is rare. The African Charter is not accorded any special status in domestic law, and courts seem to very rarely cite the decisions of international courts within the AU, including the African Court. 25 AU member states have yet to accept the African Court’s jurisdiction. Only 8 permit petitions by individuals and NGOs.
- A rapidly changing constitutional landscape: States across the AU have been engaging in profound constitutional, judicial and political reforms in recent years. In the past decade new constitutions have been adopted in states as diverse as Angola, Côte d’Ivoire, Egypt, Guinea, Kenya, Madagascar, Morocco, Niger, Somalia, South Sudan, Tunisia, and Zimbabwe.Constitution drafting processes are taking place in Burkina Faso and Libya. Constitutional revisions have also been widespread (e.g. Namibia 2010; South Sudan 2013; Rwanda 2015). This may raise a challenge (e.g. for the African Court to understand domestic systems in a state of significant flux) or an opportunity (e.g. domestic courts may prove more open to using the African Charter and African Court jurisprudence in interpreting new constitutional texts).
- Practical and political challenges: Courts across all spheres of the multi-level AU governance framework face a raft of challenges in pursuing their functions, which echo challenges faced by courts in other world regions (although they are far from universal). These include practical challenges: insufficient resources in terms of budgets and staffing levels; inadequate courtroom facilities; and IT deficiencies (e.g. electronic case-management systems). More widely, courts face the challenges of low visibility and often low public support, which is particularly acute in the case of international courts. Courts of all stripes face the threat of political backlash against assertive adjudication, in the context of inconsistent or insufficient acceptance of the formal authority conferred on courts by constitutions and international treaties, as well as serious political crises.
These are just some key aspects of the report, which is over 130 pages long (not counting appendices, which include a Draft Statute for the Network). Feedback concerning the report is welcome and may be sent to email@example.com.
This report was produced by Tom Gerald Daly in his individual capacity under a consultancy contract with the African Court on Human and Peoples’ Rights. Copyright rests with the African Court.
Tom Gerald Daly is Associate Director of the Edinburgh Centre for Constitutional Law (ECCL), a Fellow at Melbourne Law School, Co-Convenor of the Constitution Transformation Network (ConTransNet) and a consultant in public law, human rights, and democracy-building.