Introduction

This Introduction summarizes the book’s major arguments. The central claim is that Africa’s international courts have important impacts that have so far been underemphasized or entirely ignored. The chapters show that litigation in Africa’s international courts is part of a broader strategy to pursue the agenda of interest groups, litigants, and opposition political parties and politicians. The book shows that by bringing a domestic political dispute to an international court, litigants internationalize their dispute. In so doing, they mobilize law and capitalize on the litigation process to advance and promote their commitment to their ideals and immediate goals. These actors use the opportunity to enforce treaty commitments relating to human rights, the rule of law, and democracy to mobilize against those in control of dominant and authoritarian party regimes and to seek public support. The chapters therefore put the users of Africa’s international courts and their broader strategies at the center of the analysis. In addition, this book takes scholarship on Africa’s international courts a step further through in-depth case studies of how litigation in these international courts impacts political, legal, and social mobilization. It delves into the messy world of legal and political mobilization and the organizational choices made by activists, litigants, and opposition parties who bring litigation before these international courts. The book complements the attention to legal and doctrinal questions as well as the challenges of compliance with decisions of these courts that the first generation of scholarship on Africa’s international courts emphasized.

The ECOWAS Court as a (Promising) Resource for Pro-Poor Activist Forces

This chapter examines the extent to which the human rights case-law of the Community Court of Justice of the Economic Community of West African States is either pro-elite or pro-poor. Without assuming that “pro-human rights” necessarily translates to “pro-poor,” the chapter discusses how the Court functions more as a resource for local pro-poor activists than as a tool in the hands of anti-poor elements. The chapter conceptualizes expressions such as “the poor,” “sovereign hurdles,” “brainy relays,” and “flipped strategic social constructivism” to undergird its analysis. For example, the authors analyze the extent to which activists’ forces, acting as brainy relays, co-created and enhanced normative resources in a process styled in the chapter as “flipped strategic social constructivism.” The chapter also demonstrates the ways in which the court has been a valuable resource to the domestic activist forces who together with the Court have worked to advance the social conditions of the West African poor. Finally, the chapter examines the gaps that militate against such pro-poor activism.

Reference Guide to Africa’s International Courts

This chapter is a general introduction to the eight active international courts in Africa, and the ninth inactive court, the Arab Maghreb Union (AMU) Judicial Organ. The international courts in Africa stem from two sources: from the sub-regional economic integration arrangements and the regional human rights system of the African Union. The African Court on Human and Peoples’ Rights is the regional human rights court in Africa. The chapter presents an overview of the general characteristics of these courts. First, excluding the AMU Judicial Organ, they all allow, or have allowed, cases from individuals and non-governmental organizations (NGOs), in addition to states against states. Second, excluding the African Court for cases by individuals or NGOs, these courts have compulsory jurisdiction. Third, although all of these courts allow states to file cases against each other, bar one exception, there have been none. The guide starts with the human rights-oriented courts: East African Court of Justice (EACJ); Economic Community for West African States (ECOWAS) Community Court of Justice (ECCJ); South African Development Community (SADC) Tribunal; and the African Court and Commission. It then discusses the Common Market for Eastern and Southern Africa (COMESA) Court of Justice, and courts that focus on economic disputes: Organization for the Harmonization of Business Law in Africa Common Court Justice and Arbitration (OHADA CCJA); Court of Justice of the Central African Economic and Monetary Community (CEMAC) Court of Justice; the West African Economic and Monetary Union (WAEMU) Court of Justice; and the least active of them, the AMU Judicial Organ.

International Courts as Coordination Devices for Opposition Parties

This chapter examines how opposition political parties have sought to overcome repressive practices in four of the six East African Community Member States: Kenya, Tanzania, Uganda, and South Sudan. Opposition political parties and politicians from these countries have prodded the East African Court of Justice (EACJ) to use a treaty remedy for violations of rules governing the elections of members to the East African Legislative Assembly (EALA) in each of these countries. They have done so by pursuing a judicial remedy in the EACJ to resolve a coordination problem that opposition parties face when their opportunity to participate in an above-board election is compromised. These cases show how challenging the electoral malpractices of dominant parties in the EACJ facilitate opposition mobilization in ways that are not always possible, or even anticipated, in their home country. The EACJ has facilitated this coordination by consistently affirming that above-board elections are the only permissible mode of electing members of the EALA. This has helped opposition political parties to know when they have a factual basis with a likelihood of success so they could bring cases against dominant political parties in the EACJ. By contrast, the lack of cases from Burundi and Rwanda shows that the clamp down on organizational rights in these countries have made it impossible for opposition parties and politicians to bring election cases before the EACJ.

Africa’s Sub-Regional Courts as Back-Up Custodians of Constitutional Justice

This chapter argues that Africa’s international courts are involved in a new supranational constitutionalism that is anchored outside national constitutions. The value of Africa’s international courts, the chapter argues, lies more in their potential to promote constitutional justice in the long term through direct and indirect impact than in delivering individual justice in the short term. The chapter focuses on two courts: the East African Court of Justice (EACJ) and the Community Court of the Economic Community of West African States (ECOWAS Court). The chapter argues that the EACJ has mainly acted as a declaratory human rights court while the ECOWAS Court has operated as a protective (executory) human rights court. The authors argue using cases from the EACJ and the ECOWAS Court that international law as produced in the judgments of international courts can be, and are useful even in the absence of clear compliance. In doing so, the chapter presents the following four roles of sub-regional courts in Africa: flagging violations and acting as early warning systems, expanding the normative and institutional scope and protection of human rights, progressing norm development, and setting the boundaries of acceptable behavior. By emphasizing these roles, the chapter shows that even in the face of apparently low levels of judgment compliance, the impacts of litigation activities before those courts contributes to what it terms constitutional justice.

Towards an Analyses of the Mega-Political Jurisprudence of the ECOWAS Community Court of Justice

This chapter fills the gap in the judicialization of mega-political disputes before the Economic Community of West African States (ECOWAS) Community Court of Justice (ECOWAS Court). Judicialization of mega-political disputes in this Court has until now been understudied. Although the ECOWAS Court lacks an express mandate to adjudicate over political disputes, the Court has been innovative in assuming jurisdiction over mega-political disputes when these disputes are intertwined with actual or potential human rights violations. The Ugokwe doctrine, enunciated in the case of, Dr. Jerry Ugokwe v. The Federal Republic of Nigeria and Dr. Christian Okeke, established the “cause of action” for the judicialization of mega-political disputes before the ECOWAS Court. By examining cases that have largely remained obscure, the chapter uncovers the judicialization of political disputes, particularly of electoral cases, before the ECOWAS Court. Unlike the traditional scholarship that measures effectiveness based on compliance with the decisions of the courts, the chapter argues that the significance of the mega-political disputes judicialized before Africa’s regional courts derives from the instrumental objectives of the litigants. By incorporating the social, political, and economic contexts that gave rise to the francophone and anglophone cases analyzed, the chapter illuminates the judicialization of mega-political disputes in ways that are not wedded to the traditional analyses of the functions of regional economic courts.

Backlash Against International Courts in West, East, and Southern Africa

This chapter discusses three credible attempts by African governments to restrict the jurisdiction of three similarly situated sub-regional courts in response to politically controversial rulings. In West Africa, when the Court of the Economic Community of West African States (ECOWAS) upheld allegations of torture by opposition journalists in Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other Member States ultimately defeated Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the East African Court of Justice (EACJ) and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the Member States agreed to restructure the EACJ in ways that have significantly affected the Court’s subsequent trajectory. In Southern Africa, after the Southern African Development Community (SADC) Tribunal ruled in favor of white farmers in disputes over land seizures, Zimbabwe prevailed upon SADC Member States to suspend the Tribunal and strip its power to review complaints from private litigants. Variations in the mobilization efforts of community secretariats, civil society groups, and sub-regional parliaments explain why efforts to eliminate the three courts or narrow their jurisdiction were defeated in ECOWAS, scaled back in the EACJ and largely succeeded in the SADC.

Sub-Regional Courts as Transitional Justice Mechanisms

This chapter examines cases in the East African Court of Justice (EACJ) arising from the protracted and systemic abuses of human rights in Burundi. It argues that the EACJ’s role in accepting and deciding cases arises in large part from the ongoing conflict and authoritarian governance in Burundi and the absence of transitional justice mechanisms. In so doing, this chapter dovetails with other chapters in this book that show how litigants resort to Africa’s sub-regional courts when national institutions perform sub-optimally in addressing their needs. The cases from Burundi are exceptional examples of resorting to Africa’s sub-regional courts. The EACJ is a powerful transitional justice mechanism by providing a forum for truth and attention to be brought to issues arising from Burundi’s ongoing conflict and authoritarian governance. This chapter also demonstrates how these cases have been used to galvanize resistance outside of Burundi against continued authoritarian rule in Burundi.

The African Court of Human and Peoples’ Rights as an Opportunity Structure

This chapter discusses the manner in which the African Court of Human & Peoples’ Rights (African Court) has created a political opening for litigants with grievances against their governments. Using the inaugural fair trial violation cases decided by the African Court, the chapter examines how the Court developed robust jurisprudence on fair trial rights that created a favorable legal opportunity structure. By permissively interpreting its rules in these foundational cases, the African Court made itself very accessible to civil society groups, high profile opposition politicians, and opposition parties closed off from pursuing their goals of political reform under national law and through national institutions. In addition to the fair trial cases, three additional cases form the subject of this chapter. The first is a case filed against Rwanda by an opposition politician, Ingabire Victoire Umuhoza against the government of Rwanda. The second is a case filed by a Tanzanian politician, the late Christopher Mtikila regarding rights to political participation of independent candidates in national elections. The third is a case filed by a human rights non-governmental organization, Actions Pour La Protection Des Droits De L’Homme (APDH) against the government of Ivory Coast (Côte d’Ivoire) relating to exclusion of certain individuals and parties from participation in national elections. In so doing, the chapter uses the legal opportunity structures literature to explain why some groups resort to courts to advance their causes, while others do not.