Whilst the withdrawal of Côte d’Ivoire’s special declaration is a negative development, as a member of the Economic Community of West African States (ECOWAS), it should be recalled that it is subject to the jurisdiction of the ECOWAS Community Court of Justice (ECCJ). Since the adoption of a Supplementary Protocol in 2005, the ECCJ has been able to receive complaints from individuals alleging human rights violations and has proved itself to be a robust guardian of these rights. For example, it has held that criminal defamation laws targeting journalists in The Gambia disproportionately interfere with the freedom of expression, that the use of military tribunals to prosecute civilians in Nigeria violates fair trial rights, and it has ruled against Niger for condoning modern forms of slavery. Despite setbacks therefore, avenues for redress still exist, and the ECCJ should be explored as an option by victims of human rights violations. It is important to note that is no requirement to exhaust domestic remedies prior to bringing a complaint to the ECCJ, meaning there are fewer hurdles for applicants than at the African Court.
Perhaps the greater impact of Côte d’Ivoire’s decision to withdraw its special declaration will be on the Court itself. In the effort to discharge its mandate to protect human rights on the Continent, the Court relies on cases being submitted to it. As only a handful of states grant individual and NGO direct access, there has never been an inter-state complaint, and the African Commission has referred just 3 cases for a decision, the Court’s caseload has historically been small. A substantial number of the cases it has decided and which are pending before it are individual complaints against Tanzania, and whilst there have been only 4 finalised cases concerning Cote d’Ivoire, a number of pending decisions concern complaints against it. The withdrawal of declarations, particularly by countries from which many cases originate like Tanzania and Côte d’Ivoire, will mean that the Court’s caseload is likely to be significantly reduced going forwards. This is a deeply concerning development, as without a sufficient number of cases to adjudicate, the Court’s authority, legitimacy and continuing ability to operate could be seriously endangered.
Conclusion
The Court finds itself in. It has been given a mandate to promote and protect human rights on the Continent; however, in its efforts to discharge this office 365 database mandate, it faces perpetual backlash from states whose special declarations it depends on to operate. It is to the Court’s credit that it has thus far not chosen to mollify or appease states through its rulings despite the ever more likely consequences. Instead, as the Court’s granting of interim measures in the Soro case demonstrates, it has proven itself willing to wade into fraught power struggles to protect fundamental rights.
Going forwards, in addition to the Court’s own efforts, it will be the job of Continental and regional organisations like the AU and ECOWAS to encourage and impel states to uphold their human right commitments. Unlike the Court, these institutions can exercise a range of measures if states fail in this regard, from diplomatic pressure to sanctions. It will also be the job of the African Commission, which possess powers to refer cases to the Court, to be much more proactive in its referrals and perhaps more transparent about when it will refer a case to the Court. This will assist those from states which have either not deposited, or withdrawn, their declarations to nevertheless foresee when their cases might be transferred to the Court for a binding determination. Individuals should also consider having recourse to different sub-regional courts, like the ECOWAS Court, which has a strong record of protecting human rights.