Fashioning rights in the African Court on Human and Peoples’ Rights: understanding the proceduralisation of substantive rights

2.1 Applying the proceduralisation to qualified substantives rights

Cases decided thus far by the Court have concerned qualified rights. The most common paradigm of the concretisation of rights by deepening the requirement of their protection and widening the scope of obligations is the requirement of an effective investigation into the infringement of a substantive right guaranteed by article 7 of the African Charter.

In its landmark judgment issued in the case of Nobert Zongo and Others v Burkina Faso,33 the African Court assessed the procedural requirements found in the substantive right to a fair trial guaranteed in article 7 of the African Charter. This case was about the murder of Norbert Zongo, an investigative journalist and editor of the Burkinabe magazine L’Indépendant, his younger brother Ernest Zongo and two co-workers.34 They were all killed in Burkina Faso on 13 December 1998 in particularly suspicious circumstances. The case was brought by the families of Zongo and his colleagues and by the NGO Mouvement Burkinabé des Droits de l’Homme et des Peuples. The applicants alleged that the killings of Zongo and his colleagues were not the result of a random act of violence, but related to their investigations they were carrying out into various political scandals, including those taking place at the highest levels of the Burkinabe government.35 Besides, the applicants claimed that Burkina Faso officials failed to investigate the case properly, and deliberately impeded the investigation, leaving them unable to bring to justice those responsible for the murders.36 By its judgment rendered on 28 March 2014, the Court ruled unanimously that Burkina Faso had violated articles 1 and 7 of the African Charter.37

The Court’s legal reasoning in this regard is of particular interest. It outlines the Court’s path in shaping the trajectory of article 7 of the Charter to broaden the scope of states’ obligations and strengthen the substance of the right to a fair trial. The African Court found that Burkina Faso failed to act ‘with due diligence in seeking out, prosecuting and placing on trial those responsible for the murder of Norbert Zongo and his three companions’.38 Therefore, the Court noted that, in that aspect, Burkina Faso ‘had violated the rights of the Applicants to have their case heard by competent national courts as guaranteed under Article 7 of the Charter’.39

The Court’s reading is entirely novel. Indeed, the procedural obligations to investigate, prosecute and bring to justice those responsible for serious crimes are not expressly set out in article 7 of the Charter. The Court’s ruling essentially introduced a new ‘rule’ that the procedural obligation to investigate the infringement of the right to life is an essential component of the right secured by this provision.40 In the Nobert Zongo case, applicants contended that ‘by failing to initiate an effective inquiry to determine the circumstances surrounding the death of Nobert Zongo and ensuring that those responsible were identified, prosecuted and convicted, Burkina Faso violated Norbert Zongo’s right to life as guaranteed under Articles 4 of the Charter on Human and Peoples’ Rights’.41 The Court’s reasoning would perhaps draw little attention if these procedural obligations stemmed from article 4 of the African Charter.42

The fact that the African Court found these procedural requirements as embedded within the substantive right to a fair trial under article 7(1) of the African Charter, perfectly illustrates the extent to which the African Court is capable of fashioning the trajectory of a right.

So far, many of the cases brought before the African Commission on Human and Peoples’ Rights (African Commission) have been revolving around allegations of violations of the right to a fair trial under article 7.43 However, the African Commission had not yet discovered such procedural obligations in article 7 of the Charter. Yet, in the same vein, numerous resolutions have been adopted,44 and declarations from other workshops and conferences endorsed, including the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa.45 Reflecting this continued need to examine this right, the African Commission established a Working Group on Fair Trial in November 1999 with the mission to ‘prepare a draft of general principles and guidelines on the right to a fair trial and legal assistance under the African Charter’.46 As Murray highlights, the results of this Working Group’s endeavours include contributions to the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa adopted in 2003.47 Surprisingly, however, both the communications and the resolutions of the African Commission, as well as all these other instruments mentioned above do not refer to procedural requirements to investigate, prosecute and judge as intrinsic to article 7 of the Charter. For instance, the African Commission in Mamboleo M Itundamilamba v Democratic Republic of Congo48 observed that states might choose to use ‘means peculiar to their judicial system to meet the requirements of Article 7’.49 However, it was noted that such discretionary power should be exercised

in the light of the objectives of the Charter, namely taking all appropriate measures to ensure that justice is delivered by a competent, independent and impartial court or tribunal; that justice should be fair and adversarial. This is an obligation to produce a result, non-compliance with which cannot be justified by any reason whatsoever, and if the result is not achieved, the state is at fault. It is not enough for the state to prove its passivity in the occurrence of a situation which violates the provisions of article 7 of the African Charter.50

Interestingly, the African Court’s reasoning in shaping the trajectory of this provision is quite different from the African Commission’s, and is perhaps more elaborated, as illustrated in Nobert Zongo case. The Court did not question the state’s discretion, as to how the state should comply with the procedural requirements in article 7(1) of the African Charter. Instead, it found that the procedural obligation to carry out effective investigations leading to the trial of the perpetrators is a ‘measure of cessation of a violation already established’51 and a ‘legitimate measure likely to forestall the continued violation of

Article 7’.52 How the state should do so was within its discretion,53 but the Court ordered that it should ‘reopen investigations with a view to seek out, prosecute and bring to justice the perpetrators of the assassination of Norbert Zongo and his three companions’.54 It follows that the proceduralisation of article 7 of the African Charter through criminal prosecution has brought to light the transformation of the classic relationship between human rights and criminal law. Human rights are not only considered as a shield against the criminal law but also a driving force for its deployment in order to give full effect to the substantive right. The literal reading of article 7 is that it vests any person suspected or accused of a criminal offence with legal rights shielding him or her from state repression in the investigation and prosecution of crime. Thus, the function of human rights law is to neutralise the application of criminal law mechanisms against an individual.55

Apart from this ‘shield function’ of human rights law, the legal reasoning of the African Court in the Nobert Zongo case draws the instances where human rights law mandates the state to investigate, prosecute and, if appropriate, punish criminal attacks on human rights. Human rights law plays, in this sense, a sword function that leads to triggering the application of criminal law mechanisms rather than neutralising their effects.56 The African Court now seems to recognise that only effective and efficient criminal proceedings can protect individuals from particularly unbearable violations of their rights granted by the Charter. The idea is, therefore, that certain violations of the fundamental rights of the person, whether caused by a state agent or by an individual, lead to a criminal response and its absence constitutes an autonomous violation by the state of its obligation to protect treaty rights. The procedural obligation of instituting criminal prosecution in the competent courts, and thus penalising the acts breaching substantive rights, is then imposed on a state as part of the criminal protection of a value deemed essential.

Another relevant case to the proceduralisation of article 7 of the African Charter is one of Anudo v Tanzania (Anudo case).57 In this case, the African Court considered that the procedural safeguards of article 7 require Tanzania to enact new legislation providing individuals with judicial remedies in the event of a dispute over their citizenship. In this case, Anudo Ochieng Anudo’s (applicant) Tanzanian nationality was withdrawn and, as a result, was deported to Kenya; which, in turn, expelled him back to Tanzania. As he could not enter Tanzania, he was stranded in no man’s land at the border.

The Applicant alleged, amongst other things, that his right to nationality as guaranteed under the Universal Declaration of Human Rights (UDHR) had been violated.58 The Court held that neither the African Charter nor the ICCPR explicitly deals with the right to a nationality. However, the withdrawal of nationality by making a stateless person violates article 15 UDHR,59 which reflects customary international law.60 Thus, the Court ruled that the deprivation of the Applicant’s nationality was arbitrary under article 15 of the UDHR. His expulsion was therefore also arbitrary and in violation of article 12 of the African Charter and article 13 of the ICCPR. Further, the applicant’s right to due process protections had been violated, including the right to be heard before an impartial tribunal, under article 7 of the African Charter and article 14 of the ICCPR.61

As far as the right to a nationality is concerned, the African Court has adjudicated two cases only. The Anudo case was the first decided by the Court in 2018. In 2019, the African Court issued its ruling in the Robert John Penessis v Tanzania case (Penessis case).62 One notable difference between the two cases is that the Court departed from its earlier Ruling in the Anudo case where it held that the African Charter does not deal with the right to a nationality and, for this reason, applied article 15 of the UDHR as customary international law. However, in the Penessis case, while acknowledging that the Charter does not directly regulate this issue of the right to nationality, the Court infers it from article 5 of the Charter guaranteeing the right to dignity.63

The African Commission appears to have decided over several communications relating to the violation of the right to a nationality.64 As Bronwen Manby highlights in her comment,65 although the African Court does not mention the right to a nationality, the African Commission has accumulated a significant jurisprudence on the subject.66 Manby also states that ‘the number of cases brought to the African Commission reflects the fact that contested rights to belong to the national community have been at the basis of many of the most intractable political and military conflicts in the continent’.67

The most important of the Court’s contribution to the current discussion on proceduralisation in the Anudo case was its ruling on the burden of proof that shifts to the respondent state and the enactment of legislation. Indeed, the Court held that if a person already holds official documents attesting citizenship the state must prove (to the satisfaction of an independent tribunal) that he or she is not a citizen. The Court ordered Tanzania to amend its legislation to allow for court review of administrative decisions.68 In other words, the African Court’s reasoning regarding the infringement of the right to a nationality guaranteed in article 15 of the UDHR is that, in case of withdrawal of nationality, one has the right to be heard under article 7(1)(a) of the African Charter. This implies a procedural obligation to, by all means, avail a judge for the right holder, including by creating through legislation a competent tribunal where it does not exist.

The Nobert Zongo case and Anudo cases perfectly illustrate the proceduralisation of substantive rights. Fundamentally, the obligation of an effective investigation, as a general requirement, creates further requirements such as where applicable, the obligation of instituting criminal prosecution in the competent courts and thus penalising the acts breaching substantive rights. Besides, there is an obligation to enact the legislation and to create a competent Court capable of securing the enforcement of a substantive right.

While these two cases relate to the qualified substantive right under article 7 of the African Charter, African Court has also used the technique of proceduralisation to fashion ‘implied’ substantive rights whose content and scope are controversial.

2.2 Proceduralising implied substantive rights

The proceduralisation did not only help the African Court to fashion the trajectory of ‘statutory’ substantive rights. The ruling on the effects of Rwanda’s withdrawal of the Declaration under article 34(6) of the African Court Protocol delivered in the Ingabire Umuhiza v Rwanda (Ingabire case)69 is of great interest to the issue of proceduralisation. Indeed, the Ingabire case reveals a fascinating and troubling aspect of the proceduralisation of substantive rights. Not only did the African Court infer a procedural obligation from a substantive right that seems itself to be an underlying right, but it also used the proceduralisation to retain room for manoeuvre in future cases.

The Ingabire case was relating to the jurisdiction of the African Court to continue hearing a case given that Rwanda had submitted a notice of withdrawal of its declaration made under article 34(6) of the Court Protocol allowing direct access to the Court by individuals and NGOs. On 2 March 2016, the government of Rwanda notified the African Court of its decision to withdraw the right of individuals and suitably qualified NGOs to submit complaints directly to the African Court. This right was granted in 2013 when it deposited a special declaration with the Court following article 34(6) of its Protocol.70 The notification letter further stated that ‘[t]he Republic of Rwanda requests that after deposition of the same, the Court suspends hearings involving the Republic of Rwanda, including the [Ingabire] case [...] until review is made to the Declaration and the Court is notified in due course’.71

The African Court held that in terms of article 3(1) and (2) of the Court Protocol it had jurisdiction to entertain all disputes relating to the Court Protocol, including the issue of withdrawal of article 34(6) declaration.72 The ruling on the effects of Rwanda’s withdrawal of its declaration articulates around three main issues: the validity of the withdrawal,73 the conditions that apply to it74 and the legal effects of the withdrawal.75 These three issues resulted in some outstanding comments among scholars.76

The most relevant point to the question of proceduralisation is relating to the conditions of the withdrawal and its legal effects. The Court held that even though Rwanda was entitled to withdraw its declaration, this could not be done arbitrarily as it conferred rights on ‘third parties, the enjoyment of which require legal certainty’.77 The African Court’s reasoning is that withdrawal should be preceded by a minimum of one-year prior notice: ‘The provision of a notice period is essential to ensure juridical security by preventing abrupt suspension of rights, which inevitably impact on third parties, in this case, individuals and groups who are rights holders’.78

In other words, the African Court considered that such a declaration once made creates subjective rights to the benefit of individuals and groups. Therefore, ‘the suddenness of withdrawal without prior notice has the potential to weaken the protection regime provided for in the Charter’.79 Thus, the Court imposes a procedural requirement of one year’s notice to give effect to the subjective rights of individuals and groups.

Unlike the Nobert Zongo case and Anudo case whereby substantive rights are uniquely identified, the judgment on the Effects of Withdrawal in Ingabire case does not determine the rights that the African Court intended to safeguard. It is challenging to know to which specific right the Court refers. Also, it is not possible to specify its exact content and scope. The Court has just considered that there are subjective rights for individuals whose states have accepted its jurisdiction under article 34(6) of the Court’s Protocol.

Therefore, proceduralising these rights by imposing on the Rwandan authorities the requirement of one year’s notice before the withdrawal takes effect poses a methodological problem in the Court’s reasoning. Perhaps the understatement is that the Court appeared to give effect to a general right to justice, including the right to remedy, for victims of human rights infringements. The African Court seems to proceduralise a right for victims whose cases are under consideration to have standing before it regardless of the withdrawal of the declaration under 34(6) of the Charter. Moreover, the African Court seems to leave the door open for potential victims who might seize it during the notice period. The Court’s decision does not say that the notice period has the effect of allowing the Court to complete its consideration of the case. Instead, such a notice period intends to prevent an abrupt withdrawal from violating the individual rights arising from the state’s acceptance of the Court’s jurisdiction. In so doing the Court has tried to shape the trajectory of an implied substantive right. From this perspective, it is understandable why it stated that the suddenness of withdrawal without prior notice has the potential to weaken the protection regime provided for in the African Charter.

The troubling issue with the Court’s approach is that it has inferred a procedural obligation from a substantive right that seems itself to be an underlying right. While article 34(6) of the Court’s Protocol has hitherto been considered as the basis of the Court’s jurisdiction to hear individual and NGO complaints, the Court’s judgment in the Ingabire case demonstrates that it also contains a substantive right. Proceduralisation has thus enabled the Court to bring back to the debate the existence of this substantive right and, subsequently, to impose a procedural requirement of a notice period on Rwanda to ensure that its abrupt withdrawal does not infringe it. Perhaps the complexity of proceduralisation lies at this point.

Overall, this phenomenon demonstrates that, as an interpretative tool resulting from judicial activism, the proceduralisation can serve other purposes than the effectiveness of a statutory substantive right. The Court can also use proceduralisation as a tool to maintain more flexibility for future cases. Proceduralising an implied substantive right that derives from article 34(6) of the Court’s Protocol has a prima facie reading. It can be seen as a means by which the ACHPR intended to manage future withdrawals of the declaration enshrined in article 34(6) of its Protocol. Indeed, since the Rwandan withdrawal, three other countries have withdrawn their declarations in only six months.80