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Published online by Cambridge University Press: 05 April 2022
One of the many implications of the measures taken to contain the spread of the COVID-19 crisis was the potential limitation of citizens to participate in their governments, namely through free, fair, and transparent elections. Recognizing the risks this would pose to political stability and governmental legitimacy in Africa, the Pan African Lawyers Union (PALU) submitted a Request for an Advisory Opinion to the African Court of Human and Peoples' Rights (the Court) on the right of citizens to participate in the government of their country in the context of an election during the COVID-19 pandemic. The Court's Opinion was that the decision to conduct or postpone elections was a matter of domestic law, but that any such decision had to comply with regional and international standards on restriction and suspension of rights during emergencies.
1 Advisory Opinion on Request No. 001/2020 by the Pan African Lawyers Union (PALU) on the right to participate in the government of one's country in the context of an election held during a public health emergency or a pandemic, such as the COVID-19 crisis [Afr. Ct. H.P.R.] (July 16, 2021), https://www.african-court.org/cpmt/details-advisory/0012020 [hereinafter The Opinion or The Advisory Opinion].
2 Organization of African Unity (OAU), Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, art. 4(1) (June 10, 1998).
3 Memorandum of Understanding Establishing the Framework for Cooperation and Collaboration Between the African Union and the Pan African Lawyers Union (May 5, 2006), https://lawyersofafrica.org/wp-content/uploads/Memorundum-of-Understanding-between-the-AU-PALU.pdf.
4 Id. ¶¶ 45, 47.
5 Id. ¶ 46.
6 Paragraph 61 of the Opinion lists these countries: Algeria, Burkina Faso, Burundi, Cape Verde, Cameroon, Central African Republic, Cote d'Ivoire, Egypt, Ghana, Guinea, Guinea Bissau, Kenya, Liberia, Malawi, Mali, Niger, Nigeria, Seychelles, Tanzania, Togo, and Uganda. See also ¶ 88.
7 The Advisory Opinion ¶ 62.
8 Id. ¶¶ 51–55.
9 Id. ¶ 81.
10 Id. ¶ 76 (arts. 6, 7, 8, 11, 15, 16, 18 I.C.C.P.R.).
11 Id. ¶ 80.
12 Id. ¶¶ 96, 97.
13 Id. ¶ 98
14 Statement of the African Commission on Human and Peoples' Rights on Elections in Africa during the COVID-19 Pandemic (July 22, 2020), https://achpr.org/pressrelease/detail?id=522.
15 Communique of the 976th meeting of the African Union Peace and Security Council, on AU Guidelines on Elections in Africa in the Context of the Novel Coronavirus (COVID-19) Pandemic and Other Public Health Emergencies, (Jan. 29, 2021), https://www.peaceau.org/uploads/psc.976.com.elections.covid19.-29.01.2021.pdf.
16 Darren Taylor, How COVID is Affecting Elections in Africa, VOA News (June 3, 2020), https://www.voanews.com/a/covid-19-pandemic_how-covid-affecting-elections-africa/6190451.html.
17 Ibrahim Sani, Nigerian State Elections During the Covid-19 Pandemic, International IDEA Case Study, (Aug. 23, 2021), at 4, https://www.idea.int/sites/default/files/nigerian-state-elections-during-the-covid-19-pandemic-en.pdf