Law reporting at the African Court on Human and People’s Rights: Aspirations and Challenges (Part II)

In this second 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. 

Without formal law reports, the public and legal professionals would have limited access to the law. In common law jurisdictions, where decisions are binding, it is essential that they are made widely available. This would ensure consistency in case law and fairness of the judicial process, and it would also make sure that the public is not ambushed by secret or inconsistent laws.

Even if the law is technically published somewhere – online for example – that does not guarantee that the information one needs is accessible. Organising cases to improve the aspect of accessibility is crucial so everyone, including lay people, is able to exercise their rights.

Imbalance

Because the African Court is a human rights court, it is imperative that its decisions are widely read by judges, prosecutors, and attorneys in their domestic jusridctions. If disputes are resolved locally, with the court’s decisions in mind, this could prevent human rights violations from arising or continuing as they might otherwise do because of the imbalance of the power of parties.

Reporting would also assist the African Commission on Human and People’s Rights to make decisions in line with the court’s judgments, leading to one voice representing the African Union member states. Further, effective reporting and dissemination of cases could contribute to judicial economy by ensuring that cases do not repeatedly come up to the African Court where a principle, already decided by the court, clearly indicates that these matters have no chance of success.

Making decisions available for the general public is important to provide notice of the law. This is especially difficult in the African context where many indigenous languages exist and the illiteracy rate is high. The African Court publishes decisions in French and English, as well as in other working languages wherever appropriate. If a serious effort were made to publish in plain English or French as well as in indigenous languages and audio format, this would benefit the general population and help people understand their human rights.

International audiences

Reporting is not only relevant to people under the Court’s jurisdiction—it is also crucial to inform international audiences. International human rights law has long been criticized as reflecting the norms in western, developed countries only, and failing to consider African values and realities. The African Court’s role is to develop and interpret international human rights law from an African perspective.

The Court interprets not only the African Charter but also other global human rights treaties and is in a unique position to promote an African view on such international law. These functions cannot be served, however, if the decisions are not read outside of the continent, most notably by international court clerks and judges.

The African Court's judges often engage in interjurisdictional dialogues through communicating with each other through citing decisions or getting inspirations from decisions published in an external jurisdiction. And proper reporting with subject-matter indexing would greatly improve the accessibility of the decisions for judges who are not experts in looking up African jurisprudence.

Global development

To promote human rights in Africa and contribute an African perspective to the global development of human rights law, prompt reporting of the Court’s case law, preferably in formats catering to different audiences, is essential.

The Report already issued by the Court in 2019 is in high demand; it is therefore being reprinted to meet this demand. The inclusion of African Court cases in the database of the African Legal Information Institute has increased citations to the Court’s decisions by domestic judges in the continent.

Despite the popularity of its publications, however, the African Court is understaffed and underfunded to further diversify and tailor their output to cater to different sections of the population.

Positive

Once the positive effects of the report are well-appreciated, stronger member state support in the form of more budgetary contributions to produce reports targeting different kinds of audiences might follow. The publication of the first report was a giant step in the Court’s history; the second step of disseminating it to a wider audience awaits it.

[NoteThis 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.]