Access to the African Court on Human and Peoples’ Rights (AfCHPR) is likely to further shrink next year, following announcements by Côte d’Ivoire and Benin that they will withdraw their acceptance of the Court’s jurisdiction over human rights complaints by individuals and non-governmental organizations. [RFI; Government of Benin Press Release] News of the announcements came days after the AfCHPR issued provisional measures ordering both States to take specific steps to avoid the exclusion of opposition candidates from upcoming elections, although Benin authorities indicated Benin had communicated its withdrawal on March 16, 2020. [RFI (French only); RTI Info (French only); Barron’s] No official notification from either State to the African Union is yet available online.
Benin and Côte d’Ivoire would become the third and fourth States to withdraw a declaration under Article 34 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (the Protocol), potentially leaving only six States that allow individuals and NGOs to directly submit complaints to the AfCHPR. See IJRC, African Court on Human and Peoples’ Rights. Previously, Tanzania withdrew its declaration in November 2019 and Rwanda in February 2016. See IJRC, African Court on Human and Peoples’ Rights. The AfCHPR ruled in the case of Rwanda that a properly communicated withdrawal would take effect one year after notification. See AfCHPR, Ingabire Victoire Umuhoza v. Rwanda, App. No. 003/2014, Ruling on Jurisdiction of 3 June 2016, paras. 67-68.
Benin accepted the Court’s jurisdiction to receive complaints brought by individuals and NGOs with observer status before the African Commission on Human and Peoples’ Rights (ACHPR) on February 8, 2016. See AfCHPR, Status List of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. While there is no record of Benin’s notice to withdraw on the African Union or African Court websites, Benin’s Minister of Justice and Legislation issued a press release on April 28, 2020 stating that Benin had made the “decision to withdraw with regard to the jurisdiction of the Court in relation to individual applications and NGOs,” and had already issued a notification to the African Union on March 16. [Government of Benin Press Release]
Benin’s withdrawal follows five decisions concerning Benin, one of which was an order for provisional measures ordering Benin to postpone the local elections scheduled for May 17, 2020, until the AfCHPR could issue a merits decision on a complaint by Sebastien Ajavon, an exiled political opponent to Benin’s current president who was previously sentenced to 20 years in prison for drug trafficking. [Amnesty International] Ajavon has alleged that his prosecution is politically motivated, and his conviction makes him ineligible for elected office. See AfCHPR, Ajavon vs. Benin, App. No. 062/2019, Provisional Measures Order of 17 Apr. 2020.
Benin did not mention the Ajavon judgment in its press release announcing the withdrawal. Rather, it referred to a case involving the right to property and business transactions, criticizing the Court for being a “source of real legal and judicial insecurity.” [Government of Benin Press Release] The withdrawal comes at a time when there are growing concerns over human rights abuses, in particular with regard to the right to freedom of expression in the context of elections. [Amnesty International]
Côte d’Ivoire’s Withdrawal
Côte d’Ivoire accepted the Court’s jurisdiction to receive complaints brought by individuals and NGOs on July 23, 2013. See AfCHPR, Status List of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. Côte d’Ivoire’s spokesperson Sidi Toure announced that the State’s decision to withdraw was made during a weekly cabinet meeting on April 28, 2020. [Africanews]
Côte d’Ivoire’s withdrawal came directly after an April 22 judgment on provisional measures in which the Court ordered a national court to suspend the arrest warrant of Guillaume Soro, a former rebel leader running for president. See AfCHPR, Soro & Others v. Côte d’Ivoire, App. No. 12/2020, Provisional Measures Order of 22 Apr. 2020. Côte d’Ivoire has accused the Court of taking a “political decision,” undermining its sovereignty, and “undermin[ing] the foundations of the rule of law by creating genuine legal insecurity” by “confer[ring] a certain criminal immunity on someone who wants to be a candidate in the next elections.” [Africanews] The State did not comply with AfCHPR’s provisional measures and the national court went ahead with Soro’s criminal prosecution, sentencing him in absentia to 20 years in prison on April 28, 2020, which will make him ineligible for the upcoming presidential elections in October. [Jurist; Reuters]
Validity & Scope of Withdrawal
Neither the African Charter on Human and Peoples’ Rights nor the Protocol to the African Charter contains a provision on denunciation or withdrawal of a declaration under Article 34 of the Protocol. However, following Rwanda’s withdrawal in 2016, the African Court considered the validity of Rwanda’s declaration under Article 34 of the Protocol and held that “such withdrawal is valid under the Protocol.” See AfCHPR, Ingabire Victoire Umuhoza v. Rwanda, App. No. 003/2014, Ruling on Jurisdiction of 3 June 2016, para. 59.
In reaching its decision, the Court looked to rules governing the other international courts’ recognition of jurisdiction, including rules in the European Convention on Human Rights and the American Convention on Human Rights, as well as the international legal principle of State sovereignty. See id. at para. 55. The Court found that the European and Inter-American human rights systems allow declarations similar to the declaration made pursuant to Article 34. See id. at para. 56. The Court held that Rwanda’s withdrawal from the Court’s jurisdiction over individuals and NGOs was valid under the Protocol, and could be made without withdrawing from the full Protocol. See id. at paras. 57, 59. With respect to cases currently pending before it, the AfCHPR has said that the “legal principle of non-retroactivity” means that a withdrawal has “no legal effect on cases pending before the Court.” See id. at para. 68. For Benin and Côte d’Ivoire, this means that the withdrawal will not impact cases currently pending before the Court.
The African Court on Human and Peoples’ Rights began operating in 2006 and complements the role of the African Commission on Human and Peoples’ Rights in protecting fundamental rights across the continent. To date, 30 States have accepted the African Court’s jurisdiction to decide complaints referred to it by the African Commission, States, or African intergovernmental organizations. Acceptance of the Court’s jurisdiction over individual and NGO complaints is separate and optional. Benin’s and Côte d’Ivoire’s withdrawal will likely mean that only six AU countries will allow individuals and NGOs to have direct access to the Court a year from now. These are: Burkina Faso, the Gambia, Ghana, Malawi, Mali, and Tunisia. See African Court on Human and Peoples’ Rights. For more information about the African Human Rights System or Benin’s and Côte d’Ivoire’s international human rights obligations, visit IJRC’s Online Resource Hub.