8 There are four jurisdictional criteria—personal, material, temporal, and territorial—that must be fulfilled before applications can be considered further (Kambole v Tanzania, para 16). One of the most contentious jurisdictional criteria of the Court relates to the need to make a so-called ‘special declaration’ under Article 34 (6) of the Protocol, which allows individuals and NGOs to bring matters to the Court directly (Art 5 (3) of the Protocol). As a result, the personal jurisdiction of the Court is one of the areas most covered in its jurisprudence. For example, the first case decided on the merits by the Court was the Tanganyika Law Society case in 2013—four years after issuing its first decision in which the Court found that case to be inadmissible due to a lack of a declaration under Article 34 (6) of the Protocol (Yogogombaye v Senegal). In the four intervening years between the cases of Yogogombaye v Senegal and Tanganyika Law Society, the Court built a significant body of work on what did not constitute personal jurisdiction. However, since the Tanganyika Law Society decision in 2013, the Court has moved beyond personal jurisdiction and develop its jurisprudence in other jurisdictional areas.
9 The other criterion that has resulted in much discussion is the material jurisdiction of the Court, as regulated in Article 3 (1) of the Protocol. This is in part due to the Court’s jurisdiction over any human rights instrument ratified by the State concerned (Art 3 (1) of the Protocol; for analysis of this power see Rachovitsa, 2019). But while the personal and material jurisdiction of the Court have drawn much attention, neither the temporal nor the territorial jurisdictional criteria of the Court are included in the three documents—African Charter, Protocol, and Rules of Court—that regulate access to it (Access to Justice). Instead, the Court has developed its case law in these two areas on the basis that it is empowered to decide whether or not it has jurisdiction (Art 3 (2) of the Protocol; Competence-Competence).
(a) Jurisdiction Rationae Personae
10 By far the most discussed element of the Court’s jurisdiction relates to the restrictions placed on its personal jurisdiction to hear cases brought by individuals, communities, and NGOs (Arts 5 (3) and 34 (6) of the Protocol). Generally, there is compulsory jurisdiction for States that are party to the Protocol, with the exception of cases brought by individuals and NGOs, which requires a special declaration under Article 34 (6) of the Protocol. As there have been no contentious inter-State cases thus far, and personal jurisdiction for individual petitions has posed many problems, the following section will deal with those cases submitted by NGOs or individuals that make use of Articles 5 (3) and 34 (6) of the Protocol, as well as Rule 33 Rules of Court. Cases brought by the African Commission will be dealt with separately in Section D below.
11 Some have considered Article 34 (6) of the Protocol the price of creating an African Court (Ouguergouz, 2003, 718).
While the need for a special declaration under Article 34 (6) has been a barrier to many applications to the Court, the other elements of personal jurisdiction are broader than before other human rights courts. For example, Articles 5 (3) and 34 (6) of the Protocol do not require the individual or NGO making the application to be a victim of the violation in order for them to bring the case. The Protocol does, however, require NGOs to have observer status before the African Commission (La Convention Nationale des Syndicats du Secteur Education (‘CONASYSED’) v Gabon, 2012, paras 5–10; for the approach of the Commission see Murray, 2019, 696–97; 779–80).
12 Nonetheless, Article 5 (3) read together with Article 34 (6) of the Protocol has been a bulwark against individuals and NGOs bringing cases, as only six of the African Union’s 55 Member States currently have in place the necessary declaration granting individuals and NGOs standing to bring individual petitions directly before the African Court. In addition, the alternative route via the African Commission has not resulted in a significant number of cases being referred, with only three making their way to the Court at the time of writing.
13 In the first case decided by the Court in 2009, the Court emphasized that Articles 5 (3) and 34 (6) of the Protocol, when read together, required the State to have made a special declaration for individuals and NGOs to have direct access to the Court (Yogogombaye v Senegal, para 34). As Senegal was yet to submit such a declaration, the Court found that it had no jurisdiction (Yogogombaye v Senegal, paras 36–37 and 46). This case raised a number of other issues, such as the need for the Court to both discuss jurisdiction more comprehensively and also be willing to dismiss from the outset cases that clearly do not pass the test of Article 34 (6) of the Protocol (Yogogombaye v Senegal, Dissenting Opinion Judge Ouguergouz, para 40). The test applied in Yogogombaye v Senegal has become the standard in later decisions (see for example, Falana v African Union, 2012, paras 56–62). In his dissent, Judge Ouguergouz noted, perhaps somewhat optimistically, that there is nothing in Article 34 (6) that prevents a State ‘from making the declaration “after” an application has been introduced against it’ (Yogogombaye v Senegal, Dissenting Opinion Judge Ouguergouz, para 28). Therefore, in theory, a submission can be made by an individual whose State has not submitted the required declaration under Article 34 (6), but does so after the application is submitted, and as a result gives the Court jurisdiction according to Ouguergouz’s interpretation of the Protocol. Although in light of recent withdrawals of special declarations and the slow pace at which States have made them, such a move seems unlikely.
14 In other early cases, the Court transferred those submissions that failed the jurisdictional tests of the Court to the African Commission. For example, in Ababou v Algeria, 2011 the Court did not have jurisdiction to hear the case due to the lack of a declaration under Article 34 (6) of the Protocol (Ababou v Algeria, para 11). However, rather than simply finding that it had no jurisdiction in the case, the Court noted its power under Article 6 (3) of the Protocol to transfer cases to the African Commission (Ababou v Algeria, paras 12–13). The Court did the same in a string of other cases in 2011 (ie Amare v Mozambique, 2011; Association Juristes d’Afrique pour la bonne gouvernance v Côte d’Ivoire, 2011; Alexandre v Cameroon and Nigeria, 2011). However, in the Alexandre v Cameroon and Nigeria, Judge Ouguergouz voted against the transfer of the case to the African Commission and argued in his dissent that:
As Naldi points out, ‘[i]mplicit in [Judge Ouguergouz’s] criticism is the opinion that the issues of jurisdiction and admissibility have not been determined correctly’ (2014, 380). In the subsequent case law, the Court appears to agree with Judge Ouguergouz’s dissent and changed its tactics in terms of referring cases to the African Commission. For example, in later cases the Court issued decisions instead of judgments and no longer transferred cases to the African Commission (see, for example, CONASYSED v Gabon; Delta International and Lange v South Africa, 2012; Uko and ors v South Africa, 2012; Timan v Sudan, 2012; and Mahmoudi v Tunisia, 2012).
15 The recurring lack of personal jurisdiction in the early days of the Court’s decisions, due to only a small number of special declarations having been submitted by Member States, was challenged in two cases: Falana v African Union and Atemnkeng v African Union, 2013. In Falana v African Union , Mr Falana claimed that his rights, guaranteed in the African Charter, were violated by the fact that his home country, Nigeria, had still not submitted a declaration. Therefore, the AU, as a representative of its Member States, should be held responsible according to Mr Falana. The Court was faced with the problem of the AU not being a State entity, with a separate legal personality to that of its Member States, which, therefore, required a different approach (Falana v African Union , para 63, 68–70). In the end, the Court found, by seven votes to three, that as the AU was not a party to the Protocol it could not be subject to obligations under it (Falana v African Union , paras 70–71). The case included a number of dissenting and separate opinions arguing, among others, that the AU has powers to deal with human rights itself directly, that Article 34 (6) is inconsistent with the African Charter, but that the Court does not have the power to set aside Article 34 (6) nor declare it null and void (Falana v African Union, Dissenting Opinion Judges Akuffo, Ngoepe, and Thompson, paras 8.1–8.3; 17–18). Almost a year later, the case of Atemnkeng v African Union raised similar issues, claiming that Article 34 (6) violated the right to access the African Court (Atemnkeng v African Union, paras 17–18). The Court again found that it lacked jurisdiction rationae personae (Atemnkeng v African Union, paras 39–40), followed by dissents arguing that there should be no impediments to accessing the Court (Atemnkeng v African Union, Dissenting opinions of Akuffo, Ngoepe, and Thompson; also see Falana v African Commission on Human and Peoples’ Rights, 2015). Judge Ouguergouz, however, agreed with the majority and reiterated his arguments from previous cases, and stated that cases that are without merit and/or are manifestly ill-founded should be ‘dismissed de plano by a simple letter from the Registrar’ (Atemnkeng v African Union, Separate Opinion Judge Ouguergouz, 1; Rule 38 Rules of Court, see for example Amare v Mozambique, para 8; also see Naldi, 2014, 379).
16 In subsequent cases, other issues related to personal jurisdiction were challenged. For example, objections to multiple States being implicated in an application despite not all States having made a special declaration, which the Court rejected as only States with a special declaration in place were listed as respondents (Nganyi and 9 ors v Tanzania, Judgment, 2016 (‘Nganyi case’), paras 61 and 63). Similarly, cases that involved allegations against a State without a special declaration did not prevent the Court from considering the case against those States that did have special declaration in place (Onyachi and Njoka v Tanzania, 2017 (‘Onyachi case’), para 44). Therefore, although the Court invited Kenya to intervene in the Onyachi case, Kenya opted not do so. As a consequence, the Court considered the case against Tanzania, but found that it lacked the personal jurisdiction to consider the allegations against Kenya (Onyachi case, para 45).
17 Effectively personal jurisdiction is regulated by the special declaration required under Article 34 (6) of the Protocol, with the additional criterion of the need to have observer status when an NGO brings a case. The latter criterion also raises issues in terms of whether an NGO can bring a case if it does not have observer status (Naldi, 2014, 337; Association Juristes d’Afrique pour la bonne gouvernance v Côte d’Ivoire). Therefore, although the phrasing of Article 34 (6) of the Protocol is rather simple, it has been one of the biggest barriers to bringing a case to the Court (see Viljoen, 2018).
(b) Jurisdiction Ratione Materiae
18 The material jurisdiction of the African Court is broad due to the formulation of Article 3 (1) of the Protocol (Mkandawire v Malawi, para 34). This allows the Court to have jurisdiction over not just the African Charter, but also other human rights instruments (Chacha v Tanzania, 2014, para 114; Actions Pour la Protection des Droits de l’Homme v Côte d’Ivoire, Judgment, 2016, (‘APDH case’) paras 47–65). That is not to say that the material jurisdiction of the African Court is without limitations. One such restriction is that the relevant convention must be ratified by the State concerned (Art 3 (1) Protocol; also see Ouguergouz, 2003, 713). This not only makes the material jurisdiction of the Court much broader than its regional counterpart, the African Commission (see Art 45 Charter), but also other regional human rights courts in the Americas and Europe (for an analysis see Rachovitsa, 2019)
19 Despite the broad wording of Article 3 of the Protocol, the Court does not always have material jurisdiction. In Youssef Ababou v Morocco, Decision, 2011 (‘Youssef Ababou case’), the Court found that it lacked jurisdiction on the basis of Article 3 of the Protocol as Morocco had not signed the Protocol and was not a member of the AU at the time (Youssef Ababou case, paras 11–13(1); for lack of material jurisdiction also see Efoua Mbozo’o Samuel v Pan African, Decision, 2011, paras 5–7). In Efoua Mbozo’o Samuel v Pan African, Judge Ouguergouz pointed to the power of the Court to reference articles in the Charter proprio motu in order to establish material jurisdiction (Efoua Mbozo’o Samuel v Pan African, Separate Opinion Judge Ouguergouz, paras 15–17).
20 The Court has also delved into the question of whether the Universal Declaration of Human Rights (1948) (‘UDHR’) falls within its material scope, as it is not a treaty ‘ratified by the States concerned’ as required by Article 3 (1) of the Protocol (Omary and ors v Tanzania, 2014, paras 69–72). In Omary and ors v Tanzania, the Court used its discretionary power under Article 3 (2) of the Protocol, and found that as the UDHR had attained the status of customary international law it could be used ‘as long as the alleged violation is also provided for by a treaty ratified by the State concerned’ (Omary and ors v Tanzania, paras 73–74).
21 In terms of the sources of law invoked, the Court has generally taken a liberal approach. In one of the longer decisions of the Court, Tanzania challenged both the jurisdiction and the admissibility of the case brought by Peter Joseph Chacha (Chacha v Tanzania, para 91). As decided by the Court, with regards to rationae materiae, applicants are not obliged to specify which rights in the Charter were violated when making an application to the Court (Chacha v Tanzania, para 118; also see Thomas v Tanzania, 2015, para 45; Nganyi case, paras 57–60). Instead, when an applicant only invokes national laws the Court can seek corresponding Charter articles, as Article 56 African Charter only requires that the case is related to ‘human and peoples’ rights’, and not that a specific article in the Charter is invoked by the applicants (Chacha v Tanzania, paras 113–14; 117–18). The Court relied on the decisions of other human rights courts and bodies in establishing this precedent, such as the African Commission (Southern African Human Rights NGO Network v Tanzania, 2010, para 51), the ECtHR (Guerra v Italy, 1998, para 44; Scoppola v Italy (No 2), 2009, para 54; Previti v Italy, 2009, para 293), and the Inter-American Court of Human Rights (IACtHR) (Hilaire and ors v Trinidad and Tobago, 2002, para 42; Admissibility: Inter-American Court of Human Rights (IACtHR)) (Chacha v Tanzania, paras 119–21).
22 However, the leeway provided in Article 56 African Charter is not without restriction. The Court has the ‘power to examine whether the evaluation of facts or evidence by domestic courts … [were] manifestly arbitrary or resulted in a miscarriage of justice’, but not to assess a violation of national law (Onyachi case, paras 38–39; also see Abubakari v Tanzania, 2016, para 26). In doing so, the Court attempted to distanced itself from being used as an appeals court by applicants seeking to overturn domestic decisions (Mtingwi v Malawi, 2013, para 14), an argument that respondents have raised (Abubakari v Tanzania, para 22). In Abubakari v Tanzania, the Court reaffirmed its ability to examine the procedures before national courts and their consistency with applicable international human rights law, and that it would only be acting as an appellate court if it were to apply domestic law to the case (Abubakari v Tanzania, paras 25 and 28). Therefore, irrespective of which law the applicants invoke, the Court will seek corresponding Charter articles proprio motu when necessary, but refrain from applying domestic law.
(c) Jurisdiction Rationae Temporis
23 In terms of temporal jurisdiction, Article 56 (6) African Charter simply requires that applications are ‘submitted within a reasonable period from the time local remedies are exhausted or from the date the [Court] is seized of the matter.’ Despite the lack of clarity in the Protocol on temporal jurisdiction, the case law of the Court provides some additional guidance (Ouguergouz, 2003, 729).
24 For example, in Mkandawire v Malawi the question was raised whether or not the Court could have jurisdiction over alleged violations that took place before the Protocol establishing the Court came into force, but after the Charter had come into force. The Court found that as the Charter was in force at the time the violations took place, and the violations were ongoing, it had jurisdiction (Mkandawire v Malawi, para 32; also see Tanganyika Law Society case, para 84).
25 Generally speaking, the Court determines whether or not it has temporal jurisdiction based on three factors: 1) The date of entry into force of the relevant human rights instruments (Art 3 of the Protocol) and whether or not the African Charter was already in force at the time of the violation; 2) the date of entry into force of the Protocol; and 3) the date the declaration prescribed in Article 34 (6) of the Protocol was deposited, and if the declaration under Article 34 (6) of the Protocol was made only after the violation occurred, whether the alleged violations are ongoing (Beneficiaries of late Norbert Zongo and ors v Burkina Faso, Judgment, 2014 (‘Norbert Zongo case’), para 50, making reference to the ruling on preliminary objections, 2013 (‘Norbert Zongo, preliminary objections’); Chacha v Tanzania, para 126; APDH case, para 66; Thomas v Tanzania, para 64; Kambole v Tanzania, paras 22–24). In addition to these factors, the concept of continuous violation has also been instrumental to the Court’s approach to establishing violations (Norbert Zongo case, paras 74–77, Mkandawire v Malawi, para 36; African Commission on Human and Peoples’ Rights v Kenya, 2017 (‘African Commission case’), para 65). However, not all cases involve ongoing violations. For example, when a law is not general in nature and instead targets a specific community, and the implementation of that law has instantaneous effect, the violation is not considered ongoing (Boateng and 351 ors v Ghana, 2020, para 59–60).