In this first of a two-part blog, legal scholar Yuzuki Nagakoshi reflects on recent training at the African Court on Human and Peoples' Rights. Offered jointly by the African Legal Information Institute, the Judicial Institute for Africa, based at the University of Cape Town, and by Kenya Law, the course was intended to provide a comprehensive theoretical and practical training in traditional and digital law reporting. Participants comprised legal research, registry and judicial staff of the African Court on Human and Peoples' Rights and the East African Court of Justice.
When we think about courts, our imagination often ends when the decision is delivered.
A less public but nevertheless important aspect of courts’ work is the subsequent reporting of decisions after they have been delivered. The resulting law reports are collections of decisions from a specific court or jurisdiction, edited and organised to facilitate the understanding and dissemination of its jurisprudence and to be the official record.
AfricanLII and Kenya Law
In my view, law reporting deserves more attention and resources allocated to it than at present, especially in the context of African human rights law. The African Court on Human and Peoples' Rights (“African Court”) is acutely aware of the importance of reporting. For this reason the Court invited experts from AfricanLII and Kenya Law, under the auspices of the Judicial Institute for Africa based at the University of Cape Town, to provide a course on the development and management of supranational law reports. The course, offered in January, enjoyed broad participation by the Court’s legal and language officers, as well as officers from the East African Court of Justice.
Reporting court judgments is not just stapling together decisions once they have been delivered.
The first step is to find all the orders and decisions issued during a specific period. Decisions sometimes consist of a majority opinion and individual opinions, and some have orders on provisional measures before the final judgment. Unless a system is in place to collect all the documents as a court generates them, it is very difficult to track them down later.
Lapse of time
The first law report of the African Court, published in 2019, included all the cases delivered during the court’s initial decade (2006 – 2016). But as those working on the volume discovered, the lapse of time between the delivery of judgments and editing the law report exacerbated the difficulties involved.
However, the court is publishing a new report in early 2020, covering its decisions from 2017 – 2018, and plans to publish an annual report after that. Under this publishing schedule, collecting the decisions will not pose a serious difficulty.
The second step is to decide which cases go into the reports and which cases do not. At the African Court, all cases are reported due to the relatively small number of decisions rendered. Some courts decide to select cases that go into the report based on the contribution of the case to developing the case law or clarifying past decisions. Sometimes less is more; having too many cases might make it challenging for the readers to understand what the law is or had been.
The third step is editing. Typically, a case in a report includes the case name and number, the names of judges who delivered the decision, keywords, cases cited, a summary, and legal issues decided in the case. Indicating the names of the lawyers, interveners, and amici in the case would also be helpful for practitioners.
A summary helps readers, including lay people, understand the decisions. For the African Court, the summary is important. This is particularly so for pro se litigants who may be filing an application from prison on their own behalf. The Kenyan official law reports provide summaries in plain English. This would be a good practice for the African Court to follow. In light of the many languages spoken by the people under its jurisdiction, providing summaries in indigenous languages would improve the accessibility of decisions.
The organisation of reports could be case-based or statute-based. A case-based report is essentially a compilation of cases, whereas a statute-based report is a list of articles of a specific statute annotated by the snippets of the court’s jurisprudence. The African Court takes the former approach, but some international courts offer reports organised article-by-article in addition to the case-based reports. The article-based approach is amenable to the civil law understanding of the law, where court decisions are essentially interpretations of statutes. In common law jurisdictions, where the facts and the law are inextricably intertwined, such an approach may be less favoured.
For the African Court, an article-based approach as an addition to the existing case-based approach may help the general public, defence attorneys, court officers, and judges. Such an approach is possible: the Court’s main treaty, the African Charter on Human and People’s Rights, could be the basis on which the reporter may be organised. The charter lists the rights which it protects, and thus organisation along these lines would enable the readers to look up what rights are protected and how the Court has interpreted these rights.
For potential applicants who believe that their human rights have been violated, a rights-based report might be more convenient than one that is case-based. Defence attorneys might be able to work more efficiently and effectively by having a list of important cases that interprets a specific right and the holdings thereof. For court officers and judges, having an article-based report might save research time. It could also prevent reinventing the wheel by enabling a quick identification of the aspect of the case that requires a new holding.
Formatting must be consistent throughout a report, so extra care must be taken where judges use different styles to draft decisions. In the African Court, there is an added complexity because the format and the citation system is still evolving. The Court is moving towards a report-based citation system, but inconsistency will be a challenge until the reform is fully implemented. To maximise accessibility, the editors pay attention to seemingly minor issues, such as fonts or their sizes, the thickness of books, and the type of paper to be used.
The last step is publishing. The publishers may undertake some editorial work, but legal reporting is a highly specialised field, and more often than not, outsourced edits need to be reviewed by court officers. At the African Court, the legal officers undertake most of the edits. Because the court only has a dozen legal officers and four translators, reporting efforts are constrained by a dire shortage of human resources. For the purpose of sustainability, an in-house team relying on internal funding is ideal, but more funding from member states would be necessary for this purpose.
The Kenyan official law reports are printed in India because high-quality printing services are not locally available. An East African legal printing house with requisite editing knowledge and the capability to produce high-quality books might well benefit the region.
Having an online database of decisions is crucial for the dissemination of the African Court’s jurisprudence. In this regard, the Court has taken its first step by publishing all its decisions on its website and is moving towards introducing search functions for the case law database. It also published its law report online, which is available to everyone for free.
Nowadays, more and more readers of law reports access them through mobile phones. Even attorneys use mobile devices for this purpose. Therefore, having databases which are compatible with smartphones would be a significant upgrade.
Nevertheless, publishing in paper format is also important for the African audience, especially for marginalised groups such as inmates, who may not have access to stable and fast internet. It would allow potential litigants to compare their situation with matters already decided by the court, assess the strength of their cases, and make a better argument should they decide to apply.
[Note: This article draws upon the presentations and discussions made during the course on the development and management of supranational law reports which took place at the African Court on Human and People’s Rights, 28-30 January, 2020. Nevertheless, the opinions expressed are the author’s rather than those of the Court.]