Foluso Adegalu (1), Liliana Lizarazo-Rodriguez (2,4,5), João Teixeira de Freitas (2), Stefaan Smis (3), Hans Merket (4), Jérôme Vanwelde (2)
Network of African National Human Rights Institutions (NANHRI)
Brussels School of Governance (Vrije Universiteit Brussel)
Faculty of Law (Vrije Universiteit Brussel)
IPIS Research
Global Network for Human Rights and the Environment (GNHRE).
Courts play a significant role in addressing transnational ecological disputes that emerge from cross-border adverse impacts and affect multiple communities. Frequently, international, or national law mechanisms fall short in addressing these impacts, making the regional level crucial for resolving transboundary and transnational ecological disputes.
The ERC Curiae Virides Research Project hosted by the Brussels School of Governance (Vrije Universiteit Brussel (VUB)), and funded by the European Research Council (ERC) of the European Union, in collaboration with the Public Law Department of the Law & Criminology Faculty of the VUB, the International Peace Information Service (IPIS), Avocats sans Frontières (ASF), the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI), the Global Network of Human Rights and the Environment (GNHRE) and the Network of African National Human Rights Institutions (NANHRI) organised a hybrid workshop in Arusha, Tanzania.
The workshop focused on the role of judicial and non-judicial mechanisms in resolving transnational ecological conflicts. Participants could visit two prominent African supranational courts: The African Court on Human and Peoples' Rights (AfCHPR) and the East African Court of Justice (EACJ). These visits were enlightening and underscored the critical role of regional and sub-regional courts in promoting human rights, protecting the environment, and advancing regional integration in Africa. Workshop participants engaged directly with justices and registrars of both courts, gaining a better understanding of the working methods and mandates of these judiciaries. This blog post highlights key aspects of these visits and summarises the issues discussed.
The African Court on Human and Peoples' Rights (AfCHPR).
The AfCHPR was established by the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court in 2004 by the member states of the African Union. The AfCHPR is only one of three regional human rights courts in the world, alongside the Inter-American Court of Human Rights and the European Court of Human Rights (see Lizarazo and Casalin, 2024). The court’s primary mission is to ensure the protection of human and peoples' rights in Africa mainly by complementing and reinforcing the functions of the African Commission on Human and Peoples' Rights. The African Charter is the bedrock of international human rights protection on the continent and the right to a healthy environment is guaranteed under article 24 of the African Charter.
During the visit to the AfCHPR, participants were welcomed by the court's officials, who provided an overview of its history, mandate, and operations. One of the highlights of the visit was an in-depth discussion with Honourable Justice Dennis Dominic Adjei and Dr. Robert Eno, registrar of the AfCHPR. They shared the experiences of the court in handling cases related to environmental grievances, the challenges they face, including issues of state compliance with the court's rulings. The AfCHPR has rendered landmark cases that have set important precedents in the region, particularly on issues such as the right to fair trial, freedom of expression, and the rights of indigenous communities.
An important topic is the implementation of the court’s decisions and the steps taken at the continental level to integrate the AfCHPR in an African Court of Justice. The latter would consist of three chambers, one of which would focus on human rights. The AfCHPR has taken steps to address the implementation of its judgements. The Ogiek case - a landmark ruling recognising the rights of the Ogiek indigenous community to their ancestral land in Kenya – illustrated the court’s efforts to engage in a dialogue with Kenyan authorities and monitor compliance with the judgement.
Shedding light on the procedures of the court, Justice Adjei explained that the AfCHPR has two primary types of jurisdictions: contentious jurisdiction and advisory opinion jurisdiction. Contentious jurisdiction enables the court to hear cases involving human rights violations, while advisory opinion jurisdiction allows it to provide legal interpretations when requested. Before a case can be heard, it must meet four key jurisdictional requirements. Material jurisdiction determines whether the court has authority over the subject matter based on treaty provisions. Temporal jurisdiction considers whether the violation occurred after the state ratified the protocol. Personal jurisdiction assesses whether the entity bringing or responding to the case is eligible under the court’s rules, limiting respondents to state parties. Territorial jurisdiction ensures that the alleged violation took place within the geographical scope covered by the treaty. Importantly, only states that have ratified the relevant treaties can be held accountable before the court, as seen in cases where non-state actors, such as corporations, were deemed outside the court’s jurisdiction.
The East African Court of Justice (EACJ)
The EACJ, also located in Arusha, was established in 2001 as the judicial body of the East African Community (EAC). The EACJ derives its jurisdiction from Articles 23 to 27 of the EAC Treaty. Although the EACJ has a mandate to ensure that member states adhere to the EAC Treaty, which promotes economic, social, and political integration, it also hears cases relating to environmental protection and sustainable development.
Participants were welcomed by Honourable Justices Yohane Bokobora Masara (Principal Judge), Richard Wabwire Wejuli, Richard Muhumuza, and Dr. Leonard Gacuko, of the EACJ’s First Instance Division. Following the welcome speech, Deputy Registrar Ms. Christine Mutimura gave a presentation explaining the court’s dual jurisdiction. The EACJ plays a significant role in fostering regional integration and sustainable development. The court has several areas of jurisdiction. Firstly, treaty interpretation, where it ensures that the member states adhere to the treaty obligations. Although there were discussions about expanding the court’s jurisdiction to include human rights matters, this was dropped to avoid overlap with the AfCHPR. Nevertheless, the EACJ has rendered jurisprudence allowing it to handle environmental and human rights-related cases within the context of treaty violations. Secondly, the EACJ also has trade and investment jurisdiction, which was introduced through a protocol, though not all member states have ratified it. Thirdly, the EACJ handles employment disputes within the EAC, providing a legal forum for EAC employees to challenge decisions affecting their rights. Fourthly, the EACJ is an arbitration forum, where it acts as an arbitrator in disputes between member states, organisations, and individuals if the contracts include provisions referring to disputes to the court. Fifth, the EACJ also exercises appellate jurisdiction, though this is limited to appeals from its First Instance Division, meaning national courts cannot appeal their decisions to the EACJ. Sixth, national courts can seek preliminary rulings from the EACJ when interpreting treaty provisions. The court also provides advisory opinions to the Council of Ministers, the Summit, or the Secretary-General, helping to clarify legal uncertainties in the implementation of the EAC Treaty.
Key Takeaways
Visits to the AfCHPR and EACJ were both informative and inspiring. Our key takeaways are:
Firstly, the importance of regional courts: Both courts play a crucial role in promoting human rights, environmental protection, the rule of law, and regional integration. Both courts have a vital role to play in the solution of environmental disputes that go beyond the role of states. Both have rendered important judgements on transboundary environmental protection and sustainable development.
Secondly, there are structural factors that limit the effectiveness of the AfCHPR and the EACJ. The number of states that have ratified the protocol of the AfCHPR is limited, and the even smaller number that allow individual access significantly restricts the court's reach. Currently, 34 out of 55 African states have ratified the protocol, while 21 states have not, meaning they cannot be brought before the court nor benefit from its rulings. Even among the states that have ratified the protocol, access remains limited, with only 12 states initially depositing declarations that permit individuals and NGOs to file cases. However, four of these states – Tanzania, Rwanda, Benin, and Côte d'Ivoire – have since withdrawn their declarations, reducing the number to just eight states that currently allow individual petitions. This restriction significantly limits the ability of victims to seek justice. Regarding the EACJ, a significant constraint is the restricted human rights jurisdiction, in that individuals cannot bring cases solely based on human rights violations but must link them to treaty breaches. This constraint reduces access to justice for individuals whose rights have been violated by their states.
Thirdly, both the AfCHPR and the EACJ face challenges related to the lack of implementation of the judgements. Despite their significance, these courts face numerous challenges, including limited jurisdiction, limited budgets, and lack of awareness on and access to these judicial mechanisms. More fundamentally, the enforcement and implementation of judgments is hampered by numerous obstacles, despite the progressive nature of the treaties that each court respectively applies. High rates of non-compliance may limit them to be an effective mechanism for resolving conflicts (see Wiebush, 2024). States may encounter challenges in complying with international rulings due to a variety of factors, including limited political will or competing priorities, such as economic constraints or national security concerns. The current enforcement mechanisms at the international level may lack the necessary strength, allowing states to delay or avoid implementation without facing significant repercussions. This situation can ultimately undermine the effectiveness of their mandates. Compliance with these rulings can also be affected by the reservations of national courts and prosecutors to implement them, who may perceive such judgements as encroachments on their judicial independence and sovereignty. This resistance is not merely a legal issue, but it can be deeply rooted in institutional politics, differing legal traditions, and competing interpretations of state sovereignty (Huneeus, 2011). Additionally, funding constraints affect their functioning, as it relies on contributions from partner states, leading to frequent postponements of judicial sessions due to budget shortfalls.
Fourthly, civil society organisations play a pivotal role in supporting the work of these courts. Civil society assists in bridging the gap between the courts and the communities they serve by raising awareness of court mandates, advocating for stronger institutional frameworks, guiding, and empowering individuals in accessing justice, and contributing to evidence collection and monitoring in remote areas. Their involvement is essential to amplifying the reach and impact of these judicial mechanisms, particularly for vulnerable or marginalized groups.
Finally, National Human Rights Institutions (NHRIs) can play a vital role in enhancing the implementation of African Court decisions by monitoring compliance and bridging the information gap between regional and sub-regional courts and national governments. They systematically report implementation progress to parliament, ensuring accountability through annual, thematic, and investigative reports. NHRIs can also provide regular updates to the African Court, highlighting compliance gaps and offering independent assessments. Additionally, they can offer technical assistance to states, advising on legislative reforms, drafting implementation strategies, and training officials. To foster public engagement, NHRIs can raise awareness through media campaigns and dissemination of findings in accessible formats.
Conclusion
The African Court on Human and Peoples' Rights (AfCHPR) and the East African Court of Justice (EACJ) serve as powerful reminders of the critical role regional legal institutions play in Africa. These courts are not merely judicial bodies; they act as guardians of justice for millions of Africans. Continuous engagement with these courts by legal practitioners, academics, and policymakers is essential to amplify their impact. Ultimately, by shining a light on the work of these courts and on the obstacles they face, we hope to contribute to a broader understanding of their importance.
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