Kenyan court knocks down criminal defamation, safeguards freedom of expression

Efforts to create more space for free expression in Africa have been strengthened by the Kenyan Judiciary. In the case of Jacqueline Okuta & Anor vs. AG & Others, the High Court of Kenya on 6 of February 2017 annulled section 194 of the Penal Code that provides for the offence of criminal defamation. This decision is significant in safeguarding the fundamental rights of Kenyans, particularly in light of the forthcoming general elections. It curtails the misuse of criminal law provisions by political figures to curtail speech they consider unfavorable. Journalists especially have been victims of criminal defamation sanctions for exposing corruption and unlawful activities of public officials.

The harmful and undesirable consequences of criminalizing defamation, viz. the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect and unjustifiable in a modern democratic society”, Judge Mativo of the High Court of Kenya pronounced in his judgment.

The Judge noted that upon promulgation of the Constitution of Kenya in 2010, it was expected that certain provisions in Kenya’s existing laws were to be amended to align them to the letter and spirit of the Constitution. However, seven years later, this expectation had not been met. Relying on regional and international standards on freedom of expression, the Court concluded that criminal defamation is unconstitutional, reasoning that “the chilling effect of criminalizing defamation is exacerbated by the maximum punishment of two years’ imprisonment imposable for any contravention which is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements. The Court further held that imprisonment as a sanction was not “reasonably justifiable in a democratic society” and that the availability of civil remedies afforded sufficient redress for injury to one’s reputation.

Criminal defamation continues to prominently feature in Penal Codes of African countries especially in East Africa. The High Court of Kenya is the first court in the region to declare that criminal defamation violates the right to freedom of expression.

The case in Kenya arose from the indictment of two petitioners, Jacqueline Okuta and Jackson Njeru, who were each charged with criminal defamation for allegedly publishing defamatory statements on their Facebook account “Buyer beware-Kenya.” The case complaint was based on a post in which the complainants were pictured and named as being wanted for illegal possession and handling of property, and misuse of a telecommunication device. The petitioners then sought to challenge section 194 of the Penal Code before the Constitutional and Human Rights division of the High Court, arguing that the provision was unconstitutional and violated the right to freedom of expression.

A key question is what impact the decision from Kenya’s High Court will have in East Africa, and possibly in the wider African region. The judgment follows and references the landmark decision of the African Court on Human and Peoples’ Rights in the case of Lohé Issa Konaté v. Burkina Faso, but goes further than that Court’s finding that criminal defamation laws should only be used as a last resort when there is a serious threat to the enjoyment of other human rights in exceptional circumstances such as hate speech and incitement. It does so by finding that “any continued enforcement of criminal defamation laws by the government would be a violation of the fundamental and constitutionally guaranteed right to the freedom of expression.”

This corresponds with the minority dissenting opinion in the African Court case, in which 4 of the 10-judge bench found that the “’State’s duty to enforce collective security, morality and common interest’ cannot justify the criminalization of expression of speech by way of criminal defamation laws of any kind, whether punishable by incarceration or not. Access to civil action, civil sanctions together with specifically defined crimes for safeguarding national security, public peace and the common interest should be sufficient.”

The Kenyan case highlights the potential of strategic litigation as an effective tool in bringing about social change where lobbying efforts have failed. It reinforces the efforts of other national courts in Africa like Zimbabwe that have decriminalized defamation twice, once under its previous and once under its current constitution. Other countries in the region, such as Ghana, abolished criminal defamation laws through law reform. This is in line with the continental campaign to decriminalize defamation by the African Union Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Efforts to do the same in East Africa have so far been without result, especially where countries like Uganda previously upheld the constitutionality of criminal defamation laws on grounds that they are “relevant” in protecting reputation.


Journalist Ronald Ssembuusi (middle) leaving court with lawyer Catherine Anite (left). Photo courtesy of HRNJ-Uganda.

A challenge to Uganda’s criminal defamation laws is currently pending before the East African Court of Justice. The case, brought on behalf of the now-deceased Ugandan journalist Ronald Ssembuusi, argues that his conviction to a prison sentence of one year was in violation of Uganda’s obligations under the East African Community Treaty. The matter has garnered much interest from the international community, with not only the African Union and United Nations Special Rapporteurs on freedom of expression having requested to make amicus submissions in the case, but also a coalition of 20 African and international NGOs. It will be interesting to see what impact the Kenyan judgment might have on the case. If the East African Court rules in favor of Ssembuusi, the judgment will positively impact all East African Community countries, which include Kenya, Tanzania, Uganda, Rwanda Burundi and South Sudan.

This post was co-authored by Catherine Anite, a human rights lawyer from Uganda and part of the legal team litigating the Ssembuusi case. Nani Jansen Reventlow was lead counsel on the Konaté case. This post has been cross-posted from Harvard’s Cyberlaw Clinic blog.

‘Fake news’ highlights much bigger problems at play

Hardly a day goes by without another story on fake news. With the excessive coverage dedicated to it globally, you would think it is something new. But ‘fake news’ is not new and the ways we try to combat it only highlight our inadequacies in dealing with much bigger problems.

As the US Presidential Election progressed, public fixation on the term grew and so did ambitions to try and combat. In Germany, one suggested approach has been to legislate against it, forcing social media companies to delete fake news posts or face 500,000 EUR fines. Sweden also threatened to initiate legal action against Facebook unless it started cracking down on fake news.

That might sound appealing to some. By simply outlawing fake content, we could have a news ecosystem where the information published is guaranteed to be true. As it turns out, legislating against fake news is a really bad idea. Several countries tried it back when it was called ‘false news’, a label which has served for years as a handy means of pretext for many a despot seeking to silence the opposition.

The main problem with legislating against fake news is that definitions of what constitutes fake (or false) news will generally be overly broad, leaving them open to interpretation and abuse by authorities. This puts at risk the challenging of viewpoints, which lies at the heart of a democratic society. They know that in Zambia, where a national court declared its false news law unconstitutional in 2014. And they know it in Canada, Uganda, Zimbabwe, and the United States, where supreme courts have all held that false news provisions are incompatible with the right to freedom of expression.

A softer approach to combatting fake news was announced by Facebook in December last year. It makes use of third-party fact checking organizations, which will look into user-submitted reports of fake news. This is part of a package of other projects including tackling news illiteracy and improving the skills of journalists. Whether it will be successful is hard to say, but Facebook’s initiatives certainly represent a more constructive approach than simply banning fake news. Unfortunately, they are still merely a band-aid on a much bigger ailment: people’s lack of trust. As it turns out, labeling fake news stories as fake is unlikely to stop people from believing they are true. Why? Because people do not trust the ‘experts’ who make this call for them.

And why should they? In January, the European Union task force East StratCom, warned that Russia is seeking to influence the outcome of several key elections in Europe this year with ‘enormous, far-reaching (…) disinformation campaigns.’ Amongst 2,500 fake news stories uncovered by the task force are conspiracy theories over who shot down Flight MH17 over Ukraine to claims that Sweden had banned Christmas lights for religious reasons and that the EU was planning to ban snowmen as “racist”. By spreading vast amounts of conflicting messages, these disinformatzya campaigns seek to persuade audiences that there are so many versions of events that it is impossible to find the truth, impossible to find information one can really trust. The point is to pollute the news ecosystem to make readers question everything and to undermine the very notion of truth itself.


In the digital age, we communicate on platforms that resemble medieval marketplaces: everyone is shouting and no one seems able to find common ground with those across the aisle. Photo: Francis McKee, CC BY 2.0

People’s difficulties with trusting information is a much bigger problem than fake news. It is also a central premise of the digital age as the “Gutenberg Parenthesis” theory highlights, arguing that the digital age partly represents a return to medieval ways of communicating, before Gutenberg’s movable type facilitated easy printing and revolutionised the world. The new printed word had a different authority that oral communication did not possess. But then the internet happened and we are now communicating through platforms that resemble marketplaces where everyone is shouting, and where those who want to undermine their opponents can simply hire an army of trolls to do the work for them.

Labelling content as fake news may help some to navigate the ecosystem of news, but it represents a shallow response to much larger underlying problems. Legislating against fake news may make its controversy disappear for a moment, but has a potentially chilling effect on freedom of expression. Neither approach will help people figure out whom or what to trust. There are no easy or quick fixes, but if the ambition is to address fake news in all its forms, there is a need to focus on the underlying issues rather prescribing symptomatic treatment. It will require us to go beyond scratching the surface of the deeper problems of our own bias and inability to reach across the aisle and find common ground with the people we disagree with.

This post was co-authored by Andreas Reventlow, Programme Development and Digital Freedom Advisor at International Media Support who works with journalists and human rights defenders to promote standards of professional journalism, digital security and internet freedom. It has been cross-posted from the Berkman Klein Center collection on Medium.

The European Court of Human Rights and Access to Information: clarifying the status, with room for improvement

On 8 November 2016, the Grand Chamber of the European Court of Human Rights handed down a much-anticipated judgment on the right of access to information. While the Court was clearer and firmer than it had ever been before on the status of the right to access information as part of the right to freedom of expression guaranteed by Article 10 of the European Convention, it stopped short of acknowledging access to information as a fully-fledged right under the provision.

The case of Magyar Helsinki Bizottság v. Hungary concerned an information request that had been made by the Hungarian Helsinki Committee (HHC), a Budapest-based NGO that monitors and conducts advocacy on human rights. The request was addressed to a number of police stations in the country, asking that they provide the names of public defenders appointed in their area and the number of cases that had been assigned to each of them. This information was requested under Hungary’s 1992 Data Act, which contained a provision on access to information. The information was requested in the context of the HHC’s investigation into the quality of defence work done by public defenders. Two police stations refused to provide the information, and these refusals were challenged by HHC before the Hungarian courts. The Supreme Court found that, while the implementation of the constitutional right to criminal defence was a State task, the subsequent activities of the public defenders was a private activity, resulting in their names not being subject to disclosure under the Data Act. The matter was then taken to the European Court, which relinquished the matter to the Grand Chamber.

The Grand Chamber’s decision was much-anticipated as the Court had been slowly moving from an apparent outright rejection of the right to access information under Article 10 ECHR (Leander v. Sweden) to gradually acknowledging that, under certain circumstances, a limited right to access information falls within the right to freedom of expression as protected by that provision (Társaság a Szabadságjogokért v. Hungary). However, in the wake of this trajectory, the Court had left behind a legal quagmire that the Grand Chamber still had to navigate carefully in its judgment. It was hoped that the Grand Chamber would finally follow the line already taken by the Inter-American Court and the UN Human Rights Committee, and acknowledge that Article 10 comprised a self-standing right to access information. However, as much as the Grand Chamber took a significant step forward in its access to information jurisprudence, it was constrained by what had gone before.

What had gone before: a legal quagmire

There were a number of factors derived from the Court’s own case law, and the Convention itself, that had together reinforced the position that Article 10 ECHR did not provide for a standalone right of access to information held by public authorities.

  1. The wording of Article 10 itself: unlike its counterparts under the International Covenant on Civil and Political Rights (Article 19) and the Universal Declaration on Human Rights (Article 19), Article 10 ECHR was not drafted to include an explicit reference to the freedom to “seek” information. As the right to access information was not explicitly apparent from the wording of Article 10, it was left for the Court to consider whether and to what extent such a right could be viewed as falling within the provision.
  2. The Leander Principle: in Leander v. Sweden, the Court had held that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that “others wish or may be willing to impart to him.” The Grand Chamber recognized that the Court’s jurisprudence had extended this principle to cases where one arm of the State had recognized a right to receive information (e.g. by a court judgment) but another arm of the State had frustrated or failed to give effect to that right (see Sdruženi Jihočeské Matky v. the Czech Republic). Article 10 could, therefore, only be relied on in cases where the State prevented an individual from accessing information that another person was willing or required to disclose. It could not be relied on more generally to establish a right of access to state-held information.
  3. No positive obligation on States: the Court had found that Article 10 did not confer on a State positive obligations to collect and disseminate information of its own motion (Guerra and Others v. Italy).

These factors effectively created obstacles for the Grand Chamber when considering the status of the right to access information under Article 10 ECHR, and hindered its ability to keep up with the international community on the issue.

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The final countdown? Rwandans have until 1 March 2017 to file human rights claims at the African Court on Human and Peoples’ Rights

In March of this year, Rwanda announced that it was withdrawing from the mechanism allowing individuals and NGOs direct access to the African Court on Human and Peoples’ Rights. This raised a number of legal questions concerning the validity and effect of the intended withdrawal, especially since the African Charter and Protocol do not provide for the issue of denunciation.

The Court recently posted its ruling, confirming that Rwanda can indeed withdraw its 34(6) declaration and that a notice period of 1 year applies. While the Court’s conclusion appears sound from an international law perspective, the Court did not take the opportunity to clearly define how it determined the starting point of the notice period. In addition, the late publication of the notice period raises questions of transparency and access to justice.

The Court found that the Vienna Convention on the Law of Treaties was not applicable as the 34(6) declaration that allows for direct access to the Court is a unilateral act that can be separated from the Protocol, but also said that even if the Convention is not directly applicable, it “can be used by analogy, and the court can draw inspiration from it when it deems appropriate.” The Court further emphasised that the optional nature of the declaration and its unilateral character “stems from the international law principle of state sovereignty”, concluding that Rwanda was entitled to validly withdraw.

However, while withdrawal may be discretionary, the right to do so is not absolute, the Court continued. As Rwanda’s withdrawal affected peoples’ ability to file cases with the Court, the principle of legal certainty required that Rwanda give prior notice:

“The requirement of notice is necessary in the instant case especially as the declaration pursuant to Article 34(6) once made constitutes not only an international commitment on the part of the State, but more importantly, creates subjective rights to the benefit of individuals and groups.”

The Protocol makes it possible to realise the rights contained in the African Charter, so “the suddenness of a withdrawal without prior notice … has the potential to weaken the protection regime provided by the Charter.”

The Court established that a one-year notice applied, drawing analogy with practice at the Inter-American Court of Human Rights and the notice period provided in Article 56(2) of the Vienna Convention on the Law of Treaties. The withdrawal therefore only has effect after that period has expired, which the Court established is on 1 March 2017. Importantly, the Court also held that the withdrawal had no effect on cases that were already pending: “the Respondent’s notification of intention of withdrawal has no legal effect on cases pending before the Court.”

The Court’s reasoning and end conclusions seem fair enough. As I indicated in a previous post, the other regional courts require a notice period of 6 months (European Court of Human Rights) and a year (Inter-American Court) respectively, and the principle of non-retroactivity should mean that the withdrawal has no effect on cases pending or filed before that time.

 The Court’s ruling leaves unclear, however, what it has taken as the starting point for the 1-year notice period. A couple of dates are mentioned in the procedural history described in the ruling: the letter from Rwanda informing the Court of its intention to withdraw was dated 1 March 2016, the letter from the Office of Legal Counsel and Directorate of Legal Affairs of the African Union Commission informing the Court that it had received Rwanda’s withdrawal was dated 3 March 2016, while that same letter indicated 29 February 2016 as the date on which the withdrawal notice had been received by the Office of Legal Counsel. It would have been helpful if the Court had clarified these points in its first ruling on the matter, especially given the absence of guidance in the Protocol itself. When does the clock start ticking: when the Court has been informed or when the Office of Legal Counsel has been informed? Which is the date to go by: the date of the letter itself or the date of receipt? Basic questions that could make the difference between admissibility and inadmissibility of a human rights complaint.

Another issue is the Court’s rather peculiar procedure for publishing its findings. The original ruling was dated 3 June 2016, the corrigendum dated 5 September 2016, yet the ruling itself was published only in mid-October. Applicants from Rwanda now have just over 4 months left to file an application instead of the 9 months they would have had if the ruling been published when it was originally adopted. One wonders why the Court would allow for any delay in informing the public of this closing window of opportunity to bring alleged human rights violations committed by Rwanda to the Court’s attention. On 18 October 2016, The ACtHPR Monitor helpfully posted a “Rwexit Countdown” with the hashtag “#useitb4uloseit”. The Court itself would of course not be required to do something that explicit, but the timely publication of its ruling absolutely falls within its remit as not only a matter of proper procedure, but especially so in light of the principles of transparency and access to justice.


Invitation: Press freedom in Africa: how can States achieve compliance with African Court and AU standards, online and offline

Join us on Friday 4 November, the end of International Law Week, at Columbia Law School for a panel discussion on press freedom in Africa.


Panel description

Over the past few years, the African regional and sub regional courts have handed down important decisions affecting States’ obligations to uphold press freedom and protect the right to freedom of expression. The Banjul Charter’s Article 9 codifies AU Member States’ obligations regarding free speech. The African Court on Human and Peoples’ Rights in a recent landmark decision, Lohé Issa Konaté v. Burkina Faso, held that imprisonment as a penalty for defamation was in violation of States’ obligations under Article 9. In a previous judgment the Court found that the State’s failure to properly investigate and prosecute the perpetrators in the case of the killing an investigative journalist constituted a violation of its obligations under both Article 7 (fair trial) and Article 9. In parallel, tensions grow in the intersection between cybersecurity and the exercise of the right to free expression online across the continent, and the issue of access to information has been put firmly on the map, in part due to an active campaign by the African Commission.

How can AU Member States navigate these norms and ensure they are compliant with their obligations under the African Charter on Human and Peoples’ Rights?

The panelists will focus on the following questions:

  • What implications do the recent judgments on press freedom of the African Court and the sub regional courts have for States’ compliance with their obligations under the Banjul Charter?
  • How can States ensure they are compliant with the Charter’s obligations while also addressing national security concerns?
  • How should the new landscape of free speech online be navigated in light of existing standards and the emerging framework on cybersecurity?
  • How can States put in place the proper framework to implement their obligations regarding the right to access information?
  • What standards should be adhered to in guaranteeing press freedom, online and offline?


Christina Hioureas, Chair, United Nations Practice Group at Foley Hoag


Nani Jansen Reventlow, Associate Tenant at Doughty Street Chambers, Fellow at Berkman Klein Center for Internet and Society at Harvard University, lead counsel on Konaté

Mariana Mas, Policy Officer Freedom of Information & Expression at Open Society Justice Initiative

Mailyn Fidler, Fellow at the Berkman Klein Center for Internet & Society at Harvard University, expert on African cybersecurity, cybercrime laws, and Internet freedom.


The event will take place on Friday 4 November from 1:15 – 2:45 PM at Columbia Law School, 435 W 116th Street, New York, NY 10027 in Jerome Green Hall, Room 304.

This event is co-sponsored by Columbia Global Freedom of Expression, the Columbia Law School Human Rights Institute, Foley Hoag UN Practice Group, the American Society of International Law, and the Law in Africa Student Society.

Protecting the Safety of Journalists: the Role of the African Court

On 10 September, the African Court and UNESCO convened a seminar on “Strengthening judiciary systems and African Courts to protect the safety of journalists and end impunity” in Arusha, Tanzania. Attended by some 100 participants, the seminar was the first of a series of events leading up to the commemoration of the International Day to End Impunity for Crimes Against Journalists, which takes place on 2 November. As was highlighted by the former President of the Court, Mr Ramadhani, the event also took place in the context of the 10-year anniversary of the African Court and the African year of human rights.

The seminar consisted of three main panels, focusing on African jurisprudence and international standards, the capacity of judicial actors at the national level, and the Protocol and declaration of the Court.

The first panel, on African jurisprudence and international standards, had a very optimistic tone. Panelists provided an overview of the various treaty provisions, declarations, and resolutions protecting free speech across the continent, including the sub regional human rights systems, after which the focus fell on the relevant jurisprudence. The African Court’s decisions in the Zongo and Konaté cases were consistently referred to as having set a positive standard for the protection of journalists. Other cases that helped shape the legal framework for the protection of journalists that were discussed included the Hydara, Chief Manneh, and Saidykhan cases, decided by the ECOWAS Community Court of Justice.

When discussing the issue of enforcement, there was consensus amongst the panelists that this was mainly a political process; as was expressed by the African Court and ECOWAS judges on the panel, the matter was out of their hands once judgment had been handed down. The follow-up by Burkina Faso on Zongo had been positive, and the criminal defamation laws had been amended following Konaté (implementation of the reparations judgment is still pending), but enforcement of the ECOWAS Court’s judgments in the cases against The Gambia had been fully absent. Sanctions for non-implementation, even where available, were often not used due to a lack of political will. The role of civil society in the implementation was crucial: national human rights institutions and NGOs had to actively pursue implementation at both the national level and international level, including at fora such as the UN Human Rights Council’s UPR process and State reporting to the African Commission. Further strategies that were mentioned were “naming and shaming” and the need to create better access to the jurisprudence created by the courts on the continent.


The African Court and UNESCO organized the seminar at the Court’s seat in Arusha, Tanzania. Picture source: UNESCO


The main question addressed in the second panel, which looked at the capacity of judicial actors at the national level, was how to reinforce capacity within the national judicial systems regarding freedom of expression issues. Challenges flagged focused on the lack of both knowledge and proper use of freedom of expression standards. As one of the panelists commented: “if lawyers don’t make the right freedom of expression arguments, the judges’ hands are tied”. Another problem identified was that there were only very few people who were well-versed in freedom of expression rights. This created a high-risk situation: if the few lawyers defending all the free speech cases became unavailable, there was no one to pick up the work. Training was a possible solution for this, but it was agreed that this should focus on a wide range of actors, including prosecutors and law enforcement, and that one-off trainings would not suffice.

An important point was made in that criminal defamation was not the only problem journalists faced. Sedition, false news, insult and anti-terrorism laws equally posed a threat to free speech. Moreover, civil defamation could pose a significant risk due to the high damages awarded, often without grounds, that could bankrupt an individual or a news outlet.

In the third session, panelists looked at strategies to increase the ratification of the Protocol and the number of declarations made under Article 34(6) of the African Court Protocol. After all, the African Court’s ability to protect journalists is dependent on whether or not it has jurisdiction. With 30 ratifications and 7 declarations, there was still some way to go towards universal ratification. Some of the reasons mentioned for non-universal ratification of the protocol were lack of political will, confusion on the various protocols establishing the various courts, especially the African Court of Justice and Human Rights, and a degree of negligence on the part of AU Member States. The panelists discussed the various efforts undertaken by the Court, the Commission and others to increase the number of ratifications, which had had some results, but not to the extent that universal ratification had been achieved. Some of the reasons identified for this failure was a lack of resources to undertake proper follow-up, for example for the African Court to follow up after a sensitisation visit. It was suggested that possible new strategies to increase the number of ratifications and declarations should focus on involving actors other than only States and the AU: NGOs, civil society and also other inter-governmental organisations, such as the UN and its treaty bodies.


Guy Berger, UNESCO’s Director for Freedom of Expression and Media Development and Sylvan Ore, African Court President. Picture source: UNESCO


Rwanda’s withdrawal of its Article 34(6) declaration was also discussed, a subject which has been discussed here, here and here. It was acknowledged that this certainly was not a positive development, but that it was difficult to assess the impact at this stage. Most notably, one of the panelists mentioned that Rwanda had indicated that it might re-deposit the declaration at a later stage.

The overall conclusion of the discussions of the day was that currently a decent tool-set to defend journalists is in place: a legal framework comprising both hard norms, such as the various treaties, and soft ones, such as the UNESCO framework, solid jurisprudence from the Court, and the eagerness of the different actors to make it work. Given the current state of play for press freedom in Africa, what now needs to be done is to figure out how these tools can be used better.

This has been cross-posted from The ACtHPR Monitor

A zero-sum game? Rwanda withdraws and Benin allows individual access to the African Court on Human and Peoples’ Rights

The hearing at the African Court on Human and Peoples’ Rights in the case of Victoire Ingabire this morning unexpectedly led to the disclosure of Rwanda’s withdrawal of the instrument allowing individuals and NGOs to directly file cases against it with the Court.

Individuals and NGOs can directly file cases against countries who have made the declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. Benin deposited its 34(6) declaration only last month, on 8 February, which brought the total number of States allowing for direct access to eight. However, with Rwanda’s withdrawal of the declaration, the number might now be back down to seven.

Rwanda has not yet made a formal statement as to the motives of the withdrawal, nor is it known at this stage by which means it withdrew its declaration. The situation raises a myriad of legal questions, as the African Charter nor the Protocol contain a provision on denunciation. Both the European and Inter-American human rights system provide clear guidelines on the duration of jurisdiction when a State Party withdraws from the relevant human rights instrument: the European Convention on Human Rights allows States to withdraw after six months’ notice under Article 58 and the American Convention on Human Rights requires one year’s notice under Article 78.

397522_10151903647037757_404543782_nIt appears that the Court is now faced with two critical questions: first, can Rwanda’s withdrawal of the 34(6) declaration be considered valid, and second, if so, what impact will the withdrawal have on the Court’s jurisdiction over the country? In the absence of explicit provisions on either issue in the African Charter and the Protocol, it appears the Court will need to resort to the Vienna Convention on the Law of Treaties to answer these questions.

Article 56 of the Vienna Convention prescribes that treaties that do not contain a denunciation clause are not subject to denunciation or withdrawal unless it is established that the parties intended to admit this possibility or the nature of the treaty implies a right of denunciation of withdrawal. Given that a declaration to allow for direct access needs to be actively made by States in the first place, and that Rwanda is not withdrawing from the entire treaty system as such but only limiting direct access of individuals to the Court, it would appear that withdrawal should be possible, though it will be interesting to see what requirements for its validity will be determined.

It would seem that, at the very least, Rwanda cannot remove itself from the jurisdiction of the Court regarding cases that have been filed against it while the declaration was in force (the Court’s website currently lists seven cases), and possibly for cases that have been filed up to a year after the date a withdrawal has been validly made (also in analogy with Article 56 of the Vienna Convention). It is important to note that this only concerns cases filed against Rwanda at the Court directly by individuals. As Rwanda has not withdrawn from the Protocol itself, cases against it can still be referred to the Court by the African Commission under Article 5 of the Protocol.

Whatever the outcome of these questions may be, Rwanda’s withdrawal is a disappointing development for the Court, which in the few substantive decisions it has handed down so far, has demonstrated itself as a solid human rights court, capable of handing down decisions in a relatively short timespan, especially when comparing timelines with its regional counterparts. It can only be hoped that few African Union Member States will follow Rwanda’s lead and rather take Benin as an example.