Fiction? A dialectical scrutiny of the appellate competence of the African court on human and peoples’ rights
Fiction? A dialectical scrutiny of the appellate competence of the african court on human and peoples’ rights
Authors Sègnonna Horace Adjolohoun
Affiliations: BA, LLB (Benin); LLM, LLD (Pretoria). Extraordinary Lecturer and Visiting Professor of Human Rights and Comparative Constitutional Law (University of Pretoria, Central European University, Université Gaston Berger); Principal Legal Officer, African Court on Human and Peoples’ Rights
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 1 – 31
It is established case-law of the African Court on Human and Peoples’ Rights that it does not assume appellate jurisdiction over national courts. In several decisions rendered since its inception, the Court has consistently held that, when it examines cases of alleged violations of rights, it merely acts as an international court of first and final instance in vetting the conformity of domestic law and the conduct of municipal organs with international law to which the state concerned is a party. An overview of its jurisprudence however reveals a consistent challenge to the Court’s jurisdiction over cases that Respondent States argue had or should have been settled by domestic courts. The objections raised in related cases have led to a confrontational interaction between the Court and the states involved. On an increasing number of occasions, the ‘interaction crisis’ resulted in a political challenge to the very mandate of the Court and withdrawals or threats to retract from acceptance to its jurisdiction over sovereignty of the state and the integrity of domestic courts. Considering their submissions in respect of this issue, objections raised by Respondent States are genuine and therefore require principled reflections that the limited scope of the Court’s reasoning in individual cases or responses from its Registry do not and have not so far provided. In any event, the dialogue appears to have stalled as one of misunderstanding on the part of states and dilemmas for the Court. In this paper, I attempt to take up Sextus Empiricus’ role in assessing the veracity of both answers to the question whether the African Court exercises an appellate jurisdiction over courts of the Respondent States.