The African Court on Human and Peoples’ Rights’ power to review its decisions

2.1 Triggering the review process

Under Rule 78(1), the review process can only commence upon the application of ‘a party’. Rule 1(p) of the Rules of the Court defines ‘parties’ to mean ‘an applicant, respondent state and intervener’. A combined and strict reading of Rules 78(1) and 1(p) reveals that the Court cannot review its decision ex mero motu. Differently put, without an application from one of the parties, the Court has no jurisdiction to review its decision. As a result, and as the discussion below illustrates, all the review applications have been filed by natural and juristic persons. That is why the Court held that an ‘applicant must’ meet the requirements under Rule 78(1) for it to review the decision.17 It also held that ‘the onus is on the applicant to demonstrate, in his application, the discovery of new evidence of which he had no knowledge of at the time of the Court’s judgment and the exact time when he came to know of this evidence’.18

However, Rule 90 provides that ‘[n]othing in these Rules shall limit or otherwise affect the inherent power of the Court to adopt such procedure or decisions as may be necessary to meet the ends of justice’. As mentioned above, article 28(3) of the Court Protocol empowers the Court to ‘review its decision in the light of new evidence under conditions to be set out in the Rules of Procedure’. It does not provide that the Court can only review its decision on the basis of an application by one of the parties. Thus, it is the Court, through its Rules, that attempted to limit the scope of the Court’s review powers. Therefore, nothing prevents the Court from invoking its inherent powers to review its decision ex mero motu if doing so ‘is necessary to meet the ends of justice’. Otherwise, Rule 78 may have to be amended to expressly provide for the circumstances in which the Court can review its decision ex mero motu.

As mentioned above, Rule 78(1) provides that for new evidence to be admissible, it must have been ‘unknown to the party’ at the time the decision was delivered. There are suggestions that the Rule 78(1) should be interpreted to provide that apart from the party, the Court should also not have been aware of the new evidence. For example, in his separate opinion in Urban Mkandawire v Malawi19 Judge Ouguergouz referred to both the French and English texts of the Protocol and held that there was a discrepancy between article 28(3) in the French and English tests. He explained that

[t]he Court should have clearly spelt out the three conditions for admissibility of an application for review as provided for by the Protocol and the Rules, that is to say that the application 1) must contain new evidence 2) which the Court ‘or’ the Applicant had no knowledge of when the judgment was being rendered, and 3) to be submitted within six months of the date the said party discovered the new evidence. The discrepancy between the English and French versions of paragraph 3 of Article 28 of the Protocol could indeed explain why one of the three conditions which it poses is not identical to that of paragraph 1 of Rule 67 of the Rules. The French version of paragraph 3 of Article 28 of the Protocol makes it possible for the Court to review its judgment in the light of new evidence ‘which was not within its knowledge at the time of its decision’; for its part, the English version of this paragraph does not contain such a condition.20

The judge added that both the French and English versions of the Rules provide that it is the ‘party’ that files an application for review. According to him, this is attributable to the fact that the English version of article 28(3) is silent on the fact that the Court should also be unaware of the new evidence at the time the decision was delivered. He added that the instruments establishing several regional and international tribunals or courts deal with the issue of review or revision and ‘require that both the Court and the party requesting the review must have been unaware of the new fact’ at the time the decision was delivered.21 The Court appears to be moving towards this interpretation. For example, in Kouadio Kobena Fory v Cote d’Ivoire,22 the Court held:23

The Court reiterates that for a decision to be reviewed, it must be established that at the time of rendering the decision, new facts have come to light of which the Court and the parties were unaware and which are of such a nature as to have a decisive influence on the decision already rendered.

In this case, the Court suggests that the new facts should have been unknown to both the applicant and the Court. This additional requirement, that the Court should also be unaware of the new evidence at the time it delivered its decision, is not contemplated under Rule 78(1). However, nothing prevents the Court from amending Rule 78 to include that requirement. In doing so, the Rule should provide that either the Court or the party should have been unaware of the new evidence. It is not necessary to require that both the Court and the party should have been unaware of the new evidence. In light of the above discussion, it is possible for the Court to review its decision ex mero motu by invoking its inherent powers provided that the applicant was unaware of the new evidence at the time when the court delivered its decision.

2.2 Ground(s) for review

Under Rule 78(1), the Court can review its decision on one of the two grounds: (i) the discovery of a new fact; or (ii) the discovery of new evidence. Although the two concepts are closely related, the Rules draw a distinction between ‘facts’, on the one hand, and ‘evidence’, on the other.24 Evidence or probative material is what is needed to prove a fact.25 Thus, Rule 55(1) provides that ‘[t]he Court may, of its own accord or at the request of a party, obtain any evidence which in its opinion may provide clarification of the facts of a case’. Ouguergouz J also emphasised the fact that there is a difference between ‘facts’ and ‘evidence’.26 As mentioned above, article 28(4) of the Protocol empowers the Court to review its decision on one ground - ‘in the light of new evidence’. In most of the cases, the Court has referred to the new materials submitted by the parties in their review applications as ‘evidence’ as opposed to ‘facts’. Thus, it is required that before any information is admitted, it should be both ‘new’ and ‘evidence’.27 However, in one case, it held that for an application for review to be admitted, ‘[t]he applicant must also prove the existence of facts or evidence that he or she considers to be new’.28 This implies that the Court is open to reviewing its decision based on a new fact, which is contrary to article 28(3). Thus, by empowering the Court to review its decision based on the discovery of a new fact, Rule 78(1) extends the jurisdiction of the Court beyond what was conferred upon it under article 28(3). This invalidates that part of the Rule.

For the Court to review its decision, the new evidence should, first, have a decisive influence on the decision; and, second, it should have been unknown to the party and could not, with due diligence, have been known to that party. These two conditions have to be read conjunctively. Thus, if the new evidence would have had a decisive influence on the decision but was known to the party at the time the decision was delivered, the Court will not review its decision. Likewise, if the evidence would have had a decisive influence on the decision and was not known to the party but could have, with due diligence, been known to that party, the Court will not review its decision. This requirement perhaps is meant to ensure that the parties conduct their cases with due diligence and that they do not ‘benefit’ from concealing evidence or neglecting relevant evidence. In Frank David Omary,29 the Court held that ‘the requirements for admissibility for an application for review are cumulative; the absence of any one of them is sufficient to engender the inadmissibility of the application’.30 The Court’s jurisprudence demonstrates that it has understood ‘decisive’ evidence to mean evidence of ‘the nature to exert influence on its initial decision’.31 In other words, it must have a ‘bearing’ on the evidence in the decision sought to be reviewed.32 In Kouadio Kobena Fory,33 the Court held that the discovered new fact or evidence must have existed before the judgment was delivered. In other words, the events that take place after the judgment has been delivered are not considered new facts or evidence within the meaning of Rule 78(1).34 The Court held that the evidence is not ‘new’ for the purposes of article 28(3) if it was submitted to the Court at the time of the initial decision that the applicant would like to be reviewed;35 if it was ‘genetically similar’ to the evidence that was submitted to the Court to make its initial decision;36 if it was the ‘same in form and substance’ as that earlier considered by the Court in the initial judgment sought to be reviewed;37 if it was just a ‘substantiation’ of the evidence considered on merits;38 or if the Court was ‘aware’ of it ‘at the time of the judgment’.39 The evidence must not have been in ‘foreknowledge’ of the applicant at the time the judgment was delivered.40 The jurisprudence also shows that the Court will assume that the party was aware of the new evidence if it was published in media, that is, ‘available in the public domain’, at the time the judgment was delivered.41 The presumption is that if the evidence was in the public domain, the applicant was aware of it, especially when it ‘was so vital to their cause’.42 The jurisprudence of the Court appears to create the impression that this presumption is irrebuttable. Thus, if the evidence was available in the public domain at the time the decision was delivered, the Court assumes that the applicant was aware of it. It is argued that that should be the general rule. However, the applicant should be allowed to adduce evidence to the contrary. In other words, they should be allowed to rebut the presumption. If they convince the Court that they were unaware of the evidence although it was available in the public domain, the Court may admit the evidence. However, there should be stringent conditions for rebutting the presumption.

Related to the above is the question of what the new evidence is likely to prove for the Court to review its judgment. Such evidence could prove a fact that impacts the Court’s conclusion in the judgment or the integrity of the judgment itself. In the first category, the example that comes to mind is where the Court invoked or relied on a wrong treaty or treaty provision to decide the case. In other words, the Court acted per incuriam.43 The second category encompasses situations where the judgment was procured through fraud or deception. The Court appears to be open to this approach.44 Once the evidence in question is adduced, the Court is obligated to review its decision if it concludes that it was wrong. This is the case although article 28(3) states that the Court ‘may review its decision’. It does not state that the court ‘shall review’ its decision. Hence, ‘may’ should be interpreted as ‘shall’. Courts in some African countries have held that there are circumstances in which the word ‘may’ should be interpreted as imposing a mandatory obligation.45 Thus, if the new evidence proves that the Court’s decision was wrong, the Court is obligated to review it because it would be in the interests of justice to do so.

Another important question relates to the meaning of the words ‘when the decision was delivered’. In other words, is Rule 78(1) only applicable to evidence that was discovered after the judgment was delivered or does it also apply to evidence that was discovered before the judgment was delivered but after the close of pleadings? To answer this question, one has to take a look at Rule 46. Rule 46 provides:

(1) The written pleadings shall be considered to have closed when the applicant replies to the respondent state’s response to the application or when the Court so decides.

(2) Each party reserves the right to apply for leave to present additional submissions after close of pleadings. Such application shall be communicated to the other party, and the latter shall be given fifteen (15) days within which to react.

(3) The Court has the discretion to determine whether or not to reopen pleadings.

(4) No party may file additional evidence after the close of pleadings except by leave of Court.

In Onyachi and Another v Tanzania,46 the Court referred to Rule 46(3) and held that ‘when a party requests for the reopening of pleadings after the close of the same, the Court has the inherent power to order the reopening of pleadings and admit submissions filed by parties’.47 The Court has held that although it has the discretion under Rule 46(3) to reopen the pleadings, for it to exercise that discretion, ‘the arguments in support of such a measure must be sufficiently relevant to the subject of the application’.48 Thus, it has allowed applications to reopen pleadings when it is in the interests of justice to do so,49 ‘in respect of the principle of adversarial proceedings’50 or when reopening the pleadings would enable the ‘proper administration of justice’.51 What amounts to the ‘interests of justice’ or the ‘proper administration of justice’ will depend on the facts of each case. The Court has allowed applications to reopen pleadings in instances in which the issue before it is complex and the additional evidence will be essential in resolving such issues;52 when, at the time the pleadings were closed, the applicant had not collected all the information needed to include in its pleadings,53 to allow the respondents to file their replies to the applicant’s submissions;54 to allow the applicant to file his reply to the respondent’s submissions;55 or to allow both parties to submit their new pleadings.56 Such evidence or information is necessary to enable the Court to decide the issue before it ‘with full knowledge of the facts’.57 Thus, the party applying for the reopening of pleadings is expected to have compelling reasons for the delay in making such submissions and such submissions have to be crucial or essential to the issues that the Court has to decide.58 In the majority of the cases , the Court allowed the applications, especially by state parties, to reopen the pleadings under Rule 46(3). This has been the case even in instances where some of the parties opposed the application for reopening the pleadings on the grounds that the applicant had sufficient time to file their pleadings and that reopening the pleadings would have been prejudicial to them (those opposing the application)59 or that the application amounted to an abuse of process.60 This could explain why in Hussein v Tanzania,61 Blaise Tchikaya J was concerned ‘that the respondent state obtained the reopening of the proceedings only served to lengthen the proceedings without any probative legal interest’.62 Neither the Rules nor the Practice Directions63 provide for the circumstances in which the Court can invoke Rule 46(4). In Nondo & Others v Tanzania64 the Court invoked Rule 46(4) and its inherent powers under Rule 90 to reopen the pleadings to allow the respondent state to file new evidence (legislation) that came into existence after the close of pleadings because it was in the ‘interests of justice’ to do so.65 In other words, the Court can only reopen pleadings to allow parties to file additional evidence ‘in exceptional circumstances’.66 Thus, the phrase ‘when the decision was delivered’ should be interpreted to include the evidence discovered when it was too late for the parties to ask the Court to reopen pleadings for them to file additional evidence. Thus, although such evidence was known to the party before the judgment was delivered, it was impossible for the party to bring it to the attention of the Court as the opportunity to do so ceased to exist when the pleadings were closed and could not be reopened.

2.3 The six-month deadline to apply for review of the Court’s decision

Under Rule 78(1) a litigant wishing to have the Court’s decision reviewed has to make the application ‘within a period of six months after the party acquired knowledge of the fact (or evidence)’. However, the same Rule provides that ‘[t]he Court shall not accept any request for review of its decision after five (5) years of the delivery of the same’. A combined reading of these two conditions shows that they are meant to ensure that those seeking to have the Court’s decision reviewed have to do so at the first available opportunity - preferably before the execution of the decision. In Kouadio Kobena Fory v Côte d’Ivoire,67 the Court referred to Rule 78(1) and held that ‘the request for review must be filed within six (6) months from the date on which the applicant became aware of the new fact or at least five (5) years from the date of the judgment’.68

The Rule applies to three phases of the application. The first phase is where the application for review is filed within six months. In this case, the party does not have to motivate why the application is being filed. This is because they would have fully complied with Rule 78(1). Thus, the Court often observes that ‘request for review satisfies the requirements of Rule 67(1) with regard to the time limit of six (6) months within which to file an application for review of the judgment’.69 The Court has taken two approaches in determining the time at which the six-month deadline starts to run. The first approach is to apply Rule 78(1) literally. Thus, it has held that ‘the request for review must be filed within six (6) months from the date on which the applicant became aware of the new fact’.70 The second approach is for the Court to hold that ‘[t]he application for review itself, must be filed within six (6) months of the time when the applicant obtained such evidence’.71 A strict interpretation of Rule 78(1) means that if the applicant acquires knowledge of the evidence, for example, on 30 January next year, they must submit the application by 30 July of the same year. However, it could be that the applicant ‘acquired knowledge’ of the existence of evidence but did not obtain the evidence at the time they acquired the knowledge. They may obtain the evidence several weeks or months after the acquisition of the knowledge of its existence (for example, through filing a case court to access that evidence). In that case, the six-month deadline should start running on the day they obtained the evidence. This is the approach that the Court followed in Kouadio Kobena Fory,72 when it held that although the applicant discovered the existence of the evidence in early December, he only obtained the evidence in late December.73 The six-month period includes weekends and public holidays.

Irrespective of which of the two approaches is followed, the applicants must ‘demonstrate’ that their review application was filed within six months otherwise it will be dismissed.74 In order for the Court to be satisfied that the applicant has met the six-month deadline, the review application must disclose ‘the exact time when he [the applicant] came to know of this evidence’.75 Thus, the application will indicate the exact or estimated date on which the applicant ‘discovered’ the evidence.76 However, the Court will infer that the applicant complied with this requirement if the application is filed before the expiry of six months after the delivery of the judgment. For example, in Ramadhani Issa Malengo v Tanzania77 the Court held:78

As regards the filing of the Application within six (6) months of the discovery of new evidence; the Court notes that the applicant did not submit on when he discovered the alleged new evidence. Nevertheless, the application having been filed on 4 December 2019, that is, five (5) months after the delivery of the Ruling of 4 July 2019; it is deemed to have been filed within the six (6) months’ time limit and in accordance with Rule 67(1) of the Rules.

The second phase deals with a situation where the application is filed outside the six-month period. In this case, the party has to apply for condonation and motivate why the application has been filed outside the six-month period. The Court could invoke its inherent powers to condone the late application. The second phase runs from seven months to four years and 11 months. The third phase starts on the day of the ‘fifth anniversary’ of the decision. During this phase, the Court cannot allow the request for review. The use of the word ‘shall’ implies that the Court has no choice in the matter. Thus, the Court held that ‘it shall reject on its own motion any application for review of its judgment filed five (5) years after its delivery’.79

The Court has been inconsistent in dealing with the question of the stage at which it should assess whether the application was filed within six months. For example, in Wilson Barngetuny Koimet & Others v Kenya,80 the Court held:81

The Court, focusing on the evidence submitted by the applicants, observes that the applicants have not demonstrated that this evidence was not within their knowledge at the time the Court delivered its Order of 4 July 2019. Neither have the applicants demonstrated that their application for review was filed within six (6) months of them becoming aware of the existence of this evidence.

However, in Thobias Mango & Another v Tanzania,82 it held that ‘[h]aving found that the applicants have not filed new evidence, the Court does not deem it necessary to determine whether such information was filed within the six (6) months envisaged under Rule 67(1) of the Rules’.83 The Court has followed the same approach in other cases.84 In other cases, the Court dealt with the issue of whether the application was filed within the six-month period before examining the question of whether the applicant had adduced new evidence.85