The Revised Rules of the African Court 2020: towards a more effective African Court

The African Court on Human and Peoples’ Rights is not a body that goes in for rapid or unnecessary change. So, when a revised set of rules is announced, everyone interested in the court and its work should take note. This week we’ve asked human rights expert Usani Odum, who is working at the court on secondment from the University of Pretoria’s Centre for Human Rights, for his take on the changes. Here he outlines the new provisions and their likely impact. He also congratulates the court on adapting so well to the challenges of Covid-19 by, for example, switching to on-line sessions.

 

Background

At its 58th Ordinary Session, the African Court on Human and Peoples' Rights (the Court) adopted new Rules of procedure (the new Rules) to replace the previous Rules which had been in use since they were adopted in 2010. The 2010 Rules had replaced the interim Rules of 2008, following harmonization with the Rules of the African Commission on Human and Peoples' Rights (the Commission) as required by the Protocol establishing the Court (the Protocol). In a release statement, the Court said the new Rules were meant to enhance the effectiveness of the Court.
 
The powers of the Court to draw up its own Rules is predicated on Article 33 of the Protocol. As readers might expect, the new Rules boast of novel innovations which should help the Court better achieve its mandate in justice delivery as a regional human rights institution, and bring it to par in other areas as well. In the following paragraphs, we consider some of these innovations, including how they are expected to enhance the mandate of the Court in the future. A few recommendations are also made for further consideration.
 

Major innovations in the new Rules

Transfer of cases to the Commission (Rule 38(2))

Before now, it was a matter of discretion for the Court whether to transfer cases to the Commission, especially where the Respondent State is not a party to the protocol, or has not made the Article 34(6) Declaration that would allow individuals and NGOs to take cases directly to the court. In the jurisprudence of the Court, Hon. Fatsah Ouguergouz was well known for his persistent disagreement with the practice of the Court, namely to judicially order a transfer to the Commission. Though his position has since become the practice, the new Rule codifies this approach. It requires the registrar to simply inform Applicants of the Court's lack of jurisdiction, and may advise them to approach the Commission. This will no doubt save time and cost for the Court.
 

Commencement of Proceedings (Rule 40(5)

The new Rules contemplate circumstances where intending applicants are unable to deliver their Applications to the Court for some reason. Applicants may overcome this inability by sending advance certified copies via electronic means, depending on when they can deliver the original Application to the registry before the date set by the Court. This is clearly meant to expedite the processes of justice delivery, and may be particularly useful in applications for provisional measures where there is an imminent risk of irreparable harm.
 
Again, as soon as an Application is received, the Registrar is now required to inform Applicants of any missing information or documentation required for their case. This provision may prove particularly useful in cases where Applicants are not represented by legal counsel, and may not have known about the need for certain documentation in their case. It is doubtful, however, if the Registrar may rely on this provision to demand particular evidence, like proof of filing of applications for review at national courts as often claimed by Applicants in their cases. If this is so, would the request for such evidence by the Registrar not amount to descending into the case, and would the Respondent State be put on notice for this demand? The Rules are silent on these possible objections.
 

Contents of an Application in contentious cases (Rule 41)

The new Rules now require a comprehensive list of the contents of Applications, including personal and contact information, or details of incorporation, where an Applicant is a juristic person. To show that Applicants have exhausted local remedies as required under the Protocol, the new Rules require that documents and copies of laws and judgments referred to in Applications must be attached in a chronological manner, or in the sequence mentioned in the Application. The penalty for failing to do this is that the Court shall not consider the Application.
 
The foreseeable problem with these requirements however, is that they tend to make the complaint procedure more complex for victims of human rights violation, especially those without legal representation or who are serving prison terms, and whose only desire is to access the Court with their complaints. However, this possibility seems to be mitigated under Rule 41(9)(c), where the Court is allowed, even in face of noncompliance, to direct otherwise. Over the years, the Court has taken a liberal approach to complaints manifesting some procedural defects. This is commendable. In fact, not a single case exists in the Court's jurisprudence where it sacrificed the substance of an Application because of structural defects. It is hoped the new requirements under Rule 41 do not provide the Court with the plank to derogate from its longstanding disposition.
 

Time limit for pleadings (Rule 44)

Another major innovation under the new Rules is an elaborate provision relating to the time within which parties must file their pleadings. Under the old Rules, a Respondent State against which an Application has been filed has 60 days to submit its reply to the Application. Under the new Rules however, Respondent States now have 90 days, while an Applicant has 45 days to file its response, if any. Before this, the Rules were silent on the time within which Applicants had to file their Reply to the Respondent State's Response, leaving the Court with little direction on when to close pleadings.
 
Allowing more time for filing of pleadings is no doubt to help the Court deal with constant cases in which parties fail to file pleadings within the time allowed and, as Respondent States always do, excusing themselves by referring to time constraints. The new Rules also allow the President of the Court the power to order a one-time only extension of time to file pleadings. Any further extension may only be granted by the Court, and under particular conditions.
 
In practice however, specific examples abound where Respondent States apply for extension of time, but fail to file within the time granted as prayed, only to re-approach the Court for yet another extension. This practice usually leaves both the Court and Applicants frustrated while the Court is constrained by the ends of justice to grant further extensions. It is suggested however, that in future revisions, the Respondent State be required to exhibit a copy of their pleadings before an extension is granted for the second time, considering that they now have more time under the new Rules. This would also help the Court do away with the requirement under Rule 45(2), to re-consider pleadings filed out of time which, with all due respect, is an unnecessary duplication of the intention of the new Rule 44.
 

Close of, and amendment of pleadings (Rules 46,47)

The new Rules now introduce the time within which written pleadings are deemed to be closed - when an Applicant has submitted his/her Reply to the Respondent State's Response. It should be recalled that the old Rules were silent on when an Applicant must respond to the Respondent State's Reply. This left the Court with the option to send repeated reminders to Applicants before closing pleadings. Under the new Rules however, an Applicant is deemed to have elected not to file a reply if he/she fails to do so within 45 days, and the Court may no longer be required to follow up for a reply.
 
The above modifications notwithstanding, parties may still amend their pleadings even after pleadings are closed, but upon the prior approval of the Court, and for good cause. Although this has been the practice of Court before now, codification in the new Rules nonetheless guarantees certainty and predictability.
 

Judgment in Default (Rule 63)

Under Rule 55 of the old Rules, whenever a party fails to defend its case, the Court may upon application by the other party, go ahead to give a default judgment after satisfying itself on the admissibility and jurisdiction requirements of the Application. This is the same under the new Rules. However, the new Rules now contain safeguards for defaulting parties who may apply to set aside the default judgment upon good cause, provided the application to set aside is filed within one year of the default judgment, and of course after due notice to the other party. This is no doubt calculated to give the parties a second chance to defend their cases in the interests of justice.
 

Pilot Judgment Procedure (Rule 66)

Perhaps the most significant innovation in the new Rules is the Pilot Judgment Procedure. The Rules define a 'Pilot judgment' as the "judgment of the Court that deals with a group of similar cases which arise from identical causes of action or problems of a systematic or structural nature."
 
Pilot judgment procedure has gained acceptance and popularity in other International Human Rights Courts like the European and the inter-American Courts, to help expedite justice dispensation in cases of structural or systematic violations by the Respondent State. The new Rules allowthe Court on its own motion, or upon application, to initiate the procedure, and adopt a single remedial measure with respect to all similar cases against the same Respondent. Thus, the Court dispenses with the need to hear and determine each individual case on the same issue or complaints against the same Respondent State. By this procedure, the Court hopes, as the saying goes, to kill several birds with one shot.
 
To ensure its acceptability, the Rules require the Court to seek the prior consent of parties involved before initiating the procedure, and after considering a report from the Registrar on specific Applications pending before it, including the possibility of an amicable settlement. Once approved, the Court would adjourn all similar cases and give priority to the pilot proceeding. Where however, the procedure fails because the parties could not reach an amicable settlement or where the Respondent State fails to comply with the operative part of the pilot judgment, the Court may proceed with the individual cases which had been adjourned, as if no judgment had been given in the matter. .
 
As stated earlier, the major advantage of this procedure is that it allows the Court to "shoot many birds with one stone" by resolving similar cases in one judgment. The process also enhances the likelihood of amicable settlement between parties. In the future, it is hoped the court will utilize this procedure to enhance justice delivery.
 

Force Majeure, inherent power of Court (Rule 89, 90)

Global restrictions due to the Covid-19 pandemic have seen the world adjusting to new realities. Virtual sessions - something never contemplated in the Rules - are now routinely held by the Court. It is heartwarming that the new Rules contemplate occurrences which are beyond human control, and which make strict compliance with the Rules or procedures of the Court impossible. Thus, in such circumstances, the Court is allowed to derogate from any provisions of the Rules. The Rules also recognize the inherent powers of the Court to adopt any procedure or decision geared towards meeting the ends of justice.
 

Other minor innovations in the new Rules

The new Rules also make minor innovations intended to help the smooth running of the Court's internal administration. These include the introduction and definition of the office of the Dean of judges R l(j); more gender parity in the bureau of the Court 10(2); defining the minimum votes required to be declared president during election of the bureau 12(6); gender, regional and lingual parity in the appointment of registrar and the deputy, 16(2); the roles of the registrar and the duty to manage the legal aid program of the Court; the powers of the Court to establish for itself committees and working groups for specific tasks, something that is in tandem with international practices both at the International Court of Justice and the International Tribunal for the Law of the Sea 26(1)(2).
 
The new Rules also allow the Court power to request the Commission to embark on fact-finding missions on its behalf 36(4), thereby removing unnecessary burdens and ensuring the independence of the Court with respect to the case being investigated. Finally, the Court may now render judgment based on terms of amicable settlements of parties, or proceed with the merits of a case in line with the Protocol, notwithstanding any such settlement, if the interest of justice so demands.