In someone else’s words: Judicial borrowing and the semantic authority of the African Court of Human and Peoples’ Rights

Abstract

Since its first judgment on the merits in 2013, the African Court of Human and Peoples’ Rights (the African Court or ACtHPR) jurisprudence has bourgeoned. In building this jurisprudence, the African Court has borrowed significantly from the case law of the European Court of Human Rights and the Inter-American Court of Human Rights. This article empirically maps judicial borrowing in the jurisprudence of the African Court and connects this practice to the theoretical framing of the semantic authority of interpretive actors in international law. The article argues that judicial borrowing allows the African Court to borrow the semantic authority of these more established actors in the field of international human rights law. The practice has allowed the Court to boost its interpretive claims. The article posits that the Court is simultaneously internalizing external references: it transforms them into an internal part of its jurisprudence. Therefore, the African Court is transforming what was initially the semantic authority of its homologues in Strasbourg and San José, into assertions of its own semantic authority. This transformation allows the Court to assert itself as the central authority for the interpretation of human rights in Africa. These findings shed new light onto wider scholarly debates on the characteristics of African human rights jurisprudence in the field of international human rights law.

1. Introduction

The African Court is the youngest of the three regional human rights courts, albeit with a prolonged beginning. The discussions surrounding the enactment of an African Court started in the 1960s, but the African Charter of Human and Peoples’ Rights (African Charter) was not signed until 1979, and was only ratified in 1986. ¹ The protocol establishing the African Court was adopted in 1998, but it was not until 2009, a decade later, that the African Court started issuing judgments. ² Its first judgment on the merits was issued four years later, in 2013. Access to the Court is limited to cases sent from the African Commission on Human and Peoples’ Rights, from state parties, or, if state parties have acceded to the optional protocol, via petitions by single individuals or NGOs, although only a handful of states have ever done so. ³ In less than ten years, since its first judgments on the merits, the African Court has created an expansive jurisprudence addressing a wide variety of human rights issues, which arise not only from the obligations of the African Charter, but also from other regional and international human rights instruments. In developing this jurisprudence, the African Court has decisively engaged in the practice of judicial borrowing, relying heavily on the existing human rights case law of the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR).

Any international court will be confronted with a number of (similar) challenges that must be tackled in order to affirm itself and its authority within its context: ⁴ issues of member state participation (or lack thereof), questions concerning access for individual claimants, and problems of lack of impact, insufficient compliance and backlash. ⁵ The African Court has not been spared these difficulties, and much scholarly attention has been paid to the Court and its context in recent years. ⁶ This article adds to this burgeoning literature on the ‘young’ African Court by focusing on the Court’s rapid development of jurisprudence. The article explains and illustrates how the Court has developed its jurisprudence by engaging in judicial borrowing from its regional counterparts in Europe and the Americas. It will argue that judicial borrowing has allowed the Court to not only borrow precedent from its judicial homologues, but also to borrow their semantic authority to bolster its own interpretive claims. ⁷ This article shows how this borrowing leads to an internalization process, which transforms the external case law into a part of its internal jurisprudence. Thus, the article contributes to the study of the African Court by providing a novel, empirical dimension to the study of the emerging jurisprudence of the African Court, which highlights the use of external judicial decisions as a key practice in its development. This sheds new light on how the African Court situates itself within the fields of international law and international human rights law, where African institutions have historically only found a marginal role for self-expression. ⁸

Using the African Court as a case study, this article further contributes to research on international courts and their judicial practice. It links this practice to a broader theoretical framework, which emphasizes the role of interpretive actors in the making of international law. The practice of judicial borrowing thus becomes a focal point for a rethinking of how international courts develop their interpretive authority, and for understanding how the African Court has situated itself within the international human rights system.

This article first describes the judicial practice of cross-citation, or judicial borrowing, and its prominent but underexplored role in international legal scholarship. This practice is then articulated into the interpretive theory of Venzke, as an illustration of the borrowing and assertion of semantic authority. This theoretical framework lays the groundwork for the case study of the African Court which, after a brief section on the chosen methodology of the citation network approach, constitutes the article’s substantive contribution. The case study first gives an overview of the innovative and open design of the African Court, before exploring the role of judicial borrowing in the Court’s burgeoning jurisprudence. The article concludes by linking this practice back to the construction of semantic authority and discusses the characteristics of the emerging African jurisprudence in light of ongoing scholarly debates on the position of Africa within the international legal system.

1.1 The mundane cross-citation practice of judicial borrowing

Judicial borrowing describes a practice in which courts refer to and borrow from the case law of other judicial bodies: the borrowing of ‘precedent’. ⁹ This practice occurs among both domestic and international courts and is a well-studied, and sometimes controversial, phenomenon. ¹⁰ But generally, one court citing another as part of its legal reasoning is hardly noteworthy, as this citation is rarely the key interpretive element leading to a particular outcome. It is often, however, functionally relevant, and judicial borrowing is regarded as an important feature of the international legal system. Scholars have described it as a panacea for many configurational problems in the international legal system, a cure for fragmentation, ¹¹ and a road to a jus commune, ¹² or the unity, ¹³ integration, ¹⁴ and constitutionalization of international law. ¹⁵ One international court referencing another is clearly perceived to be significant, and the importance of ‘precedent’ in the construction of international law cannot be overstated, despite its formal placement as a ‘subsidiary means for the determination of the rules of law’. ¹⁶

Yet, despite the perceived importance of judicial borrowing, the practice itself, in its repetitive and mundane nature, has rarely received the in-depth attention it deserves. ¹⁷ Cross-citation practices reflect an interlinkage between multiple international bodies, and highlight the dynamic relationships between regional human rights courts. By studying the citation practices of the African Court, this article illustrates the relationships established between this Court and its homologues in Strasbourg and San José and explores the implications of this practice for the authority of the African Court and its jurisprudence. ¹⁸ Thus, the practice becomes the lens through which to see broader developments in the jurisprudence of the African Court.

The argument is that the practice of judicial borrowing reveals how international courts use external judicial decisions to bolster their interpretive claims. The repetitive and aggregate citation practices of the African Court show how external references become integral to internal jurisprudence, thus reinforcing the case law itself going forward, and emphasizing the particular character of the African human rights jurisprudence. The article theorizes this observation by applying the notion of ‘semantic authority’, exploring the idea that international legal actors make international law through their interpretative claims, and that the assertions of these claims are bound to the authority of the interpretive actors. As such, judicial borrowing becomes linked to international legal theory that emphasizes the role of interpretation in international law. The following section discusses this theory and its connection to the practice of judicial borrowing.

1.2 The importance of interpretation and the semantic authority of interpretive actors

Recent years have seen an increase in the attention paid to the importance of interpretation in international law. ¹⁹ Venzke, in particular, has illustrated how international law is ‘made’ through interpretation. ²⁰ He argues that, whereas formal legal sources may well be a legitimate starting point for the law, the law is made through specific actors’ interpretation in specific contexts. Through the interpretation of formal legal sources, powerful actors, such as international courts, make international law, or at least push the law in the direction they see fit. As Venzke writes: ‘Interpreters speak the language of international law with the intention of seeking acceptance for their claims about the meaning of norms.’ ²¹

Venzke has coined the concept of semantic authority to show how particular actors’ interpretations are accepted as the valid reading of international law. ²² The semantic authority of these actors suggest a likelihood that their interpretative claims of the law will be accepted by other actors, thus becoming a new reference point for future interpretations. ²³ Therefore, semantic authority indicates the capacity of an actor to establish content-full reference points for legal discourse, which other actors will find almost inescapable. ²⁴ As a concept, semantic authority contributes to a clearer view of where international law originates from. ²⁵

When regional human rights courts interpret their respective human rights instruments, they are engaged in a struggle over the meaning of the law. ²⁶ Their semantic authority depends on states’ and other relevant actors’ acceptance of their interpretation of international human rights law, and it is thus these actors that the courts engage in a struggle with, through their interpretive practices. ²⁷ Furthermore, semantic authority is essential for courts to be able to develop ‘normative expectations’; in other words, for law-making. ²⁸ But not all actors automatically enjoy semantic authority, and it must therefore be built up over time through interpretive practices. ²⁹ The interpretive actor wants others to believe and follow their claims, to the exclusion of other possible interpretations. ³⁰ The objective of the interpretive actor is ‘to make their partial view of [a] meaning appear as the total view, their preference seem like the universal preference’. ³¹ At the same time, the successful view is one ‘that other actors can hardly escape’. ³² Bianchi makes a similar point with a focus on international law academics, stating that there is an inclination to ‘construct stories that we hope will gain adherence to our arguments, give us authority to speak for the discipline and convince a decision-maker to undertake certain conduct’. ³³ Klabbers, building on David Kennedy, puts it even more bluntly: ‘Whoever controls the process of interpretation, therewith controls the truth, or at least the meaning to be given to the text subject to interpretation.’ ³⁴

This article contributes to this debate by showing how regional human rights courts engage in communicative processes, wherein one court invokes the interpretations put forward by another through their ‘precedents’, and in this way establishes the authority of their own interpretations over time. By invoking external judicial decisions, regional courts ‘borrow’ the semantic authority of their counterparts to support their own interpretive claims. At the same time, the courts also refer back to their own case law in order to give credence to the semantic authority they have established. ³⁵ Semantic authority clarifies the intricacies of the relationship between international courts and their respective and conjoined authority, and further highlights how international law is shaped by multiple actors engaged in a legal discourse which brings regional human rights law to life. ³⁶ In a similar vein, Venzke has shown how the UNHCR ‘struggles for the law, tries to increase its own semantic authority, and seeks to use the authority of others in its struggle’. ³⁷

In distinguishing semantic authority from persuasion, Venzke stresses that the interpretive claim must be heard and followed, even if the other actor does not endorse it. ³⁸ This is not only true of interpretations that emanate from the court itself. On the contrary, a regional human rights court is unable to simply dismiss a state party’s invocation of another court’s jurisprudence. The court must engage, often by distinguishing between cases in some way. ³⁹ This would not occur if the reference was not considered relevant. It is evident that regional human rights courts, as international courts, are actors which can have strong semantic authority. Their judgments form a necessary part of any attempt to understand the content of their regional human rights instruments. ⁴⁰ Their interpretations of international human rights law are difficult to ignore – if another court’s jurisprudence is invoked by a state, the respondent court must engage. ⁴¹

In this article, the process of interpretation shaping international law, and how specific actors’ interpretations find acceptance among other actors in the international sphere, is told as a story of the ‘internalization’ of external judicial decisions. I define internalization as a descriptive term for the process of comparison, interpretation, and adaption that occurs when courts refer to external judicial decisions and then, sometimes across multiple cases, appropriate the content of the external reference into their own jurisprudence. This contrasts with the understanding of internalization explored in Koh’s Transnational Legal Process. ⁴² This article’s conception of internalization is not about the transfer and internalization of legal norms, but about the borrowing and internalization of specific interpretations of shared legal norms, in this case procedural rules and the human rights norms of the regional human rights instruments and international human rights law. Thus, this conception helps describe the prolonged, or lingering, effect of external judicial decisions on the internal practice of international courts, long after their initial borrowing. The concept of semantic authority is relevant for this story of the development of the African Court’s jurisprudence. In the process of internalizing external judicial decisions, we can see a transfer of whose semantic authority is relevant for the court. As will be shown below, the internalization process in the African Court indicates a growing independence and reliance on its own case law, where external judicial decisions had previously been more routinely referred to. This self-reliance evidences the African Court’s growing perception of its own semantic authority. It reveals how the youngest of the three regional human rights courts is developing and sustaining its jurisprudence, while still retaining connections to the interpretations of its more established counterparts.

2. Methodology

This article approaches international law as a practice that is best studied by combining a doctrinal approach with empirical methods, in this case a citation network analysis. ⁴³ This approach is thus complimentary in its interpretive and empirical parts, with the aim of grasping a better understanding of the legal practice in its totality. ⁴⁴ The case study relies on a unique dataset: a network of references to external judicial decisions in all the African Court’s judgments on the merits in the period from 2013–2020 (49 judgments), gathered by the author. ⁴⁵ The dataset includes the numerical value of the number of references to the judgments of other courts in each individual judgment, as well as nominal data on the source of the reference, whether the reference was referred to by the defendant state, and other aspects of the specificity of the reference. For the sake of conciseness, the scope of inquiry is limited to references to the other regional human rights courts and other international courts that do not overlap in jurisdiction. ⁴⁶ This precludes references to other regional courts within the same geographical sphere (e.g., the ECOWAS Court of Justice), as well as references to judgments with overlapping facts. ⁴⁷ Similarly, since they are not international courts, references to the UN Human Rights Committee and other UN Treaty bodies have been excluded. ⁴⁸

For the purposes of the empirical analysis, a reference is understood as any direct citation of an external judicial decision found in either the main body of a judgment or in a footnote to the main text. Implicit or general references to the jurisprudence of other courts are not counted as the reference must be specific to fulfil the research’s purpose of studying a specific practice. ⁴⁹ Each individual reference in a judgment is counted, meaning that multiple citations to the same external judicial decisions are counted several times, unless the reference is identical to the previous one. ⁵⁰ The scope has been limited to judgments on the merits. This has been done because they are the centrepieces of the court’s work and a consistent element for comparison. It is a formal, binding, ruling which often summarizes the entire course of the case, from petition to remedy. More importantly, because of its central role, the inclusion of external judicial decisions in the judgment is a direct acknowledgment of another international court. The inclusion of a reference in the official judgment, even in a footnote, ⁵¹ is therefore worth taking note of. ⁵² It is the repetitive nature of these references that necessitates the inclusion of citation networks to understand them in their aggregate form.

2.1 Visualizing networks

There are two numerical elements of the dataset: the number of judgments and the number of references within the judgments, the two elements forming a citation network. A citation network, like those studied here, is the result of the citations (directed edges) between a multitude of different judgments (nodes). ⁵³ This can be visualized using standard graphs and figures to show variation in usage from judgment to judgment, adding trendlines and other statistical elements to develop the argument made in the study. However, the citation network can itself be visualized. ⁵⁴

The nodes and edges can be accorded various sizes and colours based on different metrics, and the network can be moved around manually, or by using algorithms that simulate a physical system which places the nodes in community clusters and giant ‘clouds’ or ‘webs’. ⁵⁵ A static ‘snapshot’ of the network is then taken. ⁵⁶ These visualizations do not necessarily communicate the data in a clear, effective, and ‘objective’ way, in line with the mantra of ELS visualization. ⁵⁷ The networks are instead shaped by aesthetic choices made by the scholar. ⁵⁸

The aesthetics of networks, as a structure composed of links and nodes in proliferating multiplicity, highlight the ‘extensibility, complexity, internal asymmetry, and interdependence of individual parts’. ⁵⁹ The networks visualized in the case study communicate the data they contain, but at the same time tell a story of emergent complexities within the African Court’s jurisprudence, and interlinked developments between the African Court and the other regional human rights courts. ⁶⁰

3. The design and practice of the African Court of Human and Peoples’ Rights

The African Court is, by design, open to the use of external international instruments, and external jurisprudence has played a prominent role in the emerging jurisprudence of the Court. This section first describes the open design of the African Charter, before turning to the empirical and substantive analysis of the jurisprudence of the African Court.

The African Charter is the founding instrument of the African Human Rights System. The African Charter contains a number of important innovations, which distinguish it from the ECHR and the ACHR. ⁶¹ Of relevance here is that it is designed to include a wider area of law than the two other regional human rights systems. Whereas the ECHR and ACHR are limited to the jurisdiction and state obligations contained within their respective instruments, the African Court has jurisdiction ‘to interpret the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned’. ⁶² As sources of law, it can apply ‘the provision of the Charter and any other relevant human rights instruments ratified by the States concerned’. ⁶³ This means that the African Court has jurisdiction ratione materiae over, in addition to the Charter itself, any alleged violations of UN and sub-regional human rights instruments, such as the ECOWAS Treaty.

Chapter IV of the African Charter is dedicated to applicable principles for the interpretation of the Charter. ⁶⁴ Article 60 instructs the Court to ‘draw inspiration from’ international law on human and peoples’ rights, particularly from the African and United Nations instruments on human rights. Article 61 adds that general or special conventions laying down rules expressly recognized by member states of the African Union, African practices, custom, legal precedent, and doctrine, as a subsidiarity measure for determining the principles of law, must be taken into consideration. Article 60 is particularly interesting as it directly offers the ability to interpret the African Charter in the light of other international law, without specifying whether the African states in general, or the specific state, must be bound by it. Although it does not specify what ‘draw inspiration from’ entails, it can be seen as a broader, or less restricted version of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), which is limited to applicable international law. ⁶⁵ The interpretive clauses of the African Charter have meant that the African Court has not needed Article 31(3)(c) of VCLT for its reasoning, and the Court has rarely referred to the VCLT in its judgments. ⁶⁶ The expanded jurisdiction, as per Article 3.1. of the Protocol of the Court, and the principles of interpretation in Articles 60 and 61 of the African Charter, thus reveal a treaty design that is focused on the incorporation of international human rights law into the African system. As other human rights treaties do not contain equivalent clauses, this implies that there must have been a specific purpose to this inclusion, which correlates with the wider proliferation of human rights mechanisms around the time of the drafting of the Charter and Protocol. ⁶⁷

The open structure of the African Charter allows external judicial decisions to play a central role in the interpretation of the rights and procedures within the regional instruments. This, in turn, opens the African Court up as a venue for broader human rights issues to be addressed, and turns it into a judicial mechanism for all international and regional human rights treaties ratified by a state party. While this is an explicit part of the African Charter, the other regional human rights courts have to employ ‘decompartmentalization techniques’ to use external sources. ⁶⁸ Thus, the African Court is a new ‘judicial animal’. ⁶⁹ However, its novel design raises associated questions about the Court’s authority within the African system and its engagement with the broader system of international law: does the Court become a mere extension of existing human rights instruments, some of them universal? ⁷⁰ Its design decentralizes the African Charter as the main instrument in the protection of human rights within the African human rights system, and situates it as just one among many human rights instruments. ⁷¹ Yet, as will be shown below, the African Court recentres the African Charter, and its own settled case law, through its judicial practice.

3.1 The use of external judicial decisions by the African Court of Human and Peoples’ Rights

To date, few cases have been brought before the African Court due to problems of access and the lack of state parties signing up to the Court. ⁷² In spite of this, the pace of development is similar to the early history of both the IACtHR and the ECtHR. ⁷³ The dataset is therefore relatively small, but is nevertheless revealing when it comes to the use of external judicial decisions by the African Court (Table 1, above).

Table 1. References found in ACtHPR judgments (2013 – 2020)

The African Court issued 49 judgments on the merits between 14 June 2013 ⁷⁴ and 4 December 2020. ⁷⁵ Sixty-nine percent of the judgments include external references, meaning that only 15 judgments did not include any. The dataset includes 206 external references: ⁷⁶ 133 are references to the European Court and 49 to the Inter-American Court; plus 16 references to the International Court of Justice and seven references to international criminal courts (the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Court).

Figure 1 illustrates the distribution of references in the 49 cases. It shows a general decline in external references, and an inclination of the Court to cite the European Court over the Inter-American Court. However, given that the European Court of Human Rights has issued around 20,000 judgments, and the Inter-American Court only about 481, this might not signal a preference as much as the simple fact that there are more ECtHR references to choose from. The polynomial trendline shows an increase in more recent cases, curving the trendline back up. This later upswing is discussed further below.

Figure 1. A stacked column chart showing the total number of external references in each judgment, and the references to the cited courts.

Though individual references to external judicial decisions vary in content and form, it is still possible to identify some trends. There is often a general reference to the practice of the other regional courts in the main text, with a selection of cases in the footnotes. ⁷⁷ In some cases, the reference is introduced by simply stating that this is the approach adopted by the Inter-American Court or the European Court, which is a comparison to ‘courts of similar jurisdiction’. ⁷⁸ This phrasing does not tell us much about the value that the African Court places on external references. It merely highlights approaches, and solutions, that similar courts dealing with similar issues have opted for. However, the African Court often uses an expressive vocabulary, which stresses the role of the external reference. The African Court is ‘fortified in its reasoning’ by the judicial decisions of other courts. ⁷⁹ The other courts have adopted approaches which ‘should be taken into account’. ⁸⁰ The jurisprudence of the other regional courts ‘reveals’ criteria which may be used by the African Court. ⁸¹ The Court is ‘persuaded by the conclusions’ of the European Court. ⁸² It considers legal questions ‘in [the] light of the case law of the Inter-American Court’. ⁸³ These phrases show the emphasis that the African Court places on the value of the other regional human rights courts as sources of authority. Judge Ben Achour of the African Court confirms this when he links the use of external judicial decisions to the experience of other established courts. ⁸⁴ In his view, external case law is used in the very construction of the reasoning of the Court, and forms part of the essence of developing an African jurisprudence. ⁸⁵

The Court’s first case on the merits already made apparent that external case law is an integral part of the reasoning of the African Court. Tanganyika Law Society and Legal and Human Rights Centre and Reverend Christopher R Mtikila v. United Republic of Tanzania concerned constitutional amendments in Tanzania restricting the right to form political parties and to participate in elections. ⁸⁶ The African Charter does not explicitly state the requirement for a restriction imposed on a human right to be lawful, but the African Court conducted a three-pronged test: the restriction must be prescribed by law, it must serve a legitimate aim, and it should be proportionate to the aim pursued. ⁸⁷ The Court inserts this test into its interpretation of Article 27(2) and notes that ‘this is the same approach [as that used by] the European Court’. ⁸⁸ In fact, unlike the African Charter, both the ECHR and ACHR explicitly mention the legitimate purposes and proportionality tests, and have built their respective approaches to restrictions on that basis. ⁸⁹ Rather than attempting its own construction of a test for the balancing of rights, the ACtHPR immediately based its approach on the ECtHR and the IACtHR, regardless of the design differences between the respective instruments. ⁹⁰

The weaknesses of the African Charter (the duties and ‘clawback clauses’ ⁹¹ ) and the vagueness of the rights recognized within it (a common feature among most human rights instruments) are adjusted and contained by the use of external decisions. ⁹² As noted above, the duties aspect of Article 27(2) is nullified by the first case on the merits, as the African Court instead adopted the approach of the European Court. ⁹³ In the same way, in other early judgments, the African Court uses the case law of the European and Inter-American courts to fill out the contours of the rights contained in the African Charter. In Lohe Issa Konate v. Burkina Faso, the Court draws extensively from ECtHR jurisprudence on the freedom of expression and its legitimate restrictions. ⁹⁴ In African Commission on Human and Peoples’ Rights v. Republic of Kenya, concerning the Ogiek people, the Court uses the case law of the IACtHR on indigenous peoples’ rights to elaborate on peoples’ right to existence and right to culture under the African Charter. ⁹⁵ Finally, in a number of the Tanzanian Fair Trial cases, discussed below, the contours of Article 7 (right to be heard) are expanded and consolidated through the use of European jurisprudence.

3.2 Developments in the African jurisprudence

Figure 1 (above) shows a general decline in the use of external judicial decisions over the years, as the jurisprudence of the African Court developed. There is a significant decline in external references after the initial cases establishing a basic settled case law, which occurs in parallel to an increase in internal references, as shown in Figure 2 (above). The expansion of internal jurisprudence reduces the use of external judicial decisions. This shift from external to internal citations evidences the development of the jurisprudence of the African Court and highlights the overarching effect of an internalization process. The internalization process can be seen more clearly by visualizing the use of external judicial decisions as a network. By including both the citations of external judicial decisions and the African Court’s citations of its own jurisprudence (including citations to admissibility decisions), the network in Figure 2 displays how the declining use of the external correlates to a growing self-citation network. ⁹⁶

Figure 2. Central nodes of red (ACtHPR judgments on the merits) and blue (ACtHPR cases declared inadmissible but that are cited by judgments on the merits) are shown chronologically from 2013 to 2020 (arrow indicates start). ECtHR (green) and IACtHR (yellow) are placed in a circle according to when they are first cited. The size of nodes is relative to the number of times they are cited.

Figure 2, in four stages (¼, ½, ¾, and the full network), displays the growing citation network of the African Court as a circular wheel, expanding chronologically as judgments have accumulated. ⁹⁷ It illustrates the distribution of citations to external judicial decisions and the growing intricate citation network between the African judgments. In the first stage, from 2013–2017, the Zongo, Konate, Alex Thomas, and Abukari cases establish a fundamental jurisprudence in the areas of the right to a fair trial, freedom of expression and unlawful detainment, together with some principles related to procedure and reparations. ⁹⁸ This jurisprudence is built with frequent reference, comparison to, and borrowing of the case law of the European and Inter-American Human Rights Courts. In the second stage (until 2018), the additional cases are almost exclusively fair trial cases against Tanzania. ⁹⁹ The newly established African jurisprudence, rather than the external case law, becomes the reference point in these repetitive cases. In the third stage (until 2019), there is a continuation of the use of external references, as the jurisprudence expands into new areas beyond the right to a fair trial. ¹⁰⁰ The completed image (until 2020) displays the full network, and shows how cases that move into new areas continue to refer externally, whilst those on established matters only refer internally. ¹⁰¹ At this point, the internal citations are so inter-connected that the inner circle resembles a ball of yarn.

3.3 Looking more closely at the internalization of references to external judicial decisions

This section examines a specific area of the jurisprudence in more detail in order to give a clearer picture of both the substantive use of external judicial decisions in the African Court and the internalization process in action. The focus is on cases against Tanzania which deal with the right to a fair trial as per Article 7 of the African Charter. Article 7 can be distinguished from comparable provisions in other human rights instruments as it does not expressly mention the right to a fair trial, but instead cites the ‘right to be heard’ and contains a relatively limited number of procedural rights. ¹⁰² The section shows how the African Court expanded the scope of Article 7 through its use of external sources of law.

The Tanzanian Fair Trial cases represent the only real cluster of judgments in the Court’s case law, and thus the ideal area in which to study the evolving citation practice of the Court. The cluster consists of 24 different cases concerning applicants serving lengthy prison sentences, the majority handed down on robbery charges. ¹⁰³ All the applicants claimed numerous violations of their right to a fair trial under Article 7 of the African Charter, among other violated rights. ¹⁰⁴ Alex Thomas and Wilfred Onyango Nganyi are the two first cases, concluded respectively in 2015 and 2016 (within a few months of each other). In both cases, the alleged violation of the right to a fair trial receives the most attention. The violation encompasses the arrest procedure, the trial, and the appeal process. The European Court and the Inter-American Court are cited extensively in these parts of the judgment. In Alex Thomas, 18 European Court and seven Inter-American Court judgments are cited, and Wilfred Onyango Nganyi cites 11 European Court judgments and one Inter-American Court judgment.

The external judgments are mostly cited as comparisons to courts with a similar jurisdiction, or to strengthen the African Court’s reasoning which is aligned with the other courts. ¹⁰⁵ In two instances, however, the judicial decisions of the European Court are directly adopted by the African Court. When assessing whether the trial was an unduly lengthy process, the African Court adopts a ‘principle of reasonable time’ developed by the ECtHR and adopted by the Inter-American Court. ¹⁰⁶ The European Court stipulated three elements to be taken into account when establishing the fairness of the duration of judicial proceedings: the complexity of the issue, the procedural activities, and the conduct of the judicial authorities. ¹⁰⁷ The African Court uses these three elements to conclude that the time spent on the proceedings was unreasonable, and that there had been a violation of the right to a fair trial. On this matter, the African Court refers not only to the European case law but also to the case law of the Inter-American Court. ¹⁰⁸ It is interesting to note that the African Court only cites older Inter-American case law, which implements the three elements determined by the European Court, and not more recent cases in which a fourth element for consideration was added. ¹⁰⁹ Since Valle Jaramillo et al. v. Colombia in 2008, the Inter-American Court has additionally considered ‘the effect on the person involved in the procedure’. ¹¹⁰

Borrowed interpretive criteria are repeated in the two judgments when deciding whether the applicant is entitled to free legal aid. The right to legal aid is not specifically mentioned in Article 7 of the African Charter, but because of Article 7 of the Protocol to the African Charter, the Court could refer to Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR), which does contain an explicit right to legal aid. ¹¹¹ It is not entirely clear whether the African Court is interpreting the content of Article 7 using Article 14(3)(d) of the ICCPR, or is in fact directly applying Article 14(3)(d) of the ICCPR. ¹¹² In Alex Thomas, the Court uses the two terms interchangeably. ¹¹³ Irrespective of this opaque understanding of the source of the right, the right to free legal aid is found to be present and applicable. ¹¹⁴

In both cases, the African Court relies on four factors identified by the ECtHR, which should be taken into account when determining whether the situation demands legal aid: ¹¹⁵ the seriousness of the offence, the severity of the potential sentence, the complexity of the case, and the social and personal situation of the defendant. ¹¹⁶ The African Court applied these four factors to the applicable facts, and found that the applicants were entitled to legal aid, which should have been granted to them. ¹¹⁷ Thus, in Alex Thomas and Wilfred Nganyi, the African Court establishes criteria for determining the right to legal aid, a right found in an external instrument, with elements borrowed directly from the jurisprudence of the European Court of Human Rights.

In subsequent cases, the African Court began to internalize external judicial decisions. In Abubakari, several external references are still made and used to push forward certain arguments. For example, Abubakari refers to the ICTY Čtelebići judgment on the burden of proof in allegations of discriminatory treatment. ¹¹⁸ A similar reference to the Diallo judgment of the ICJ on the burden of proof is found in Kennedy Owino Onyachi. ¹¹⁹ In Abubakari, there are further references to the ECtHR and IACtHR regarding the right of the accused to be informed of the charges brought against them. ¹²⁰ The ECtHR is referred to in relation to whether or not a judgment must be delivered in public, ¹²¹ but on the issue of legal aid, the judgment instead refers back to Alex Thomas and the reasoning applied by the Court in this case. ¹²²

This internal reliance continues in Kennedy Owino Onyachi, which also refers back to Alex Thomas when assessing the right to legal aid. ¹²³ However, the African Court now uses the four factors previously found in ECtHR case law as an internal part of its own jurisprudence. In Onyachi, the African Court states that ‘in assessing these conditions, the Court considers several factors, including …’. ¹²⁴ There is explicit ownership in this phrasing, which suggests that the criteria are part of the reasoning of the African Court itself. Onyachi refers to Granger v. United Kingdom, on the right to free legal aid, but this reference to the ECtHR is phrased as a ‘see also …’ together with references to Alex Thomas and Abubakari, rather than indicating the European cases as the source of the criteria. ¹²⁵

Thus, what was initially a standard developed by the European Court of Human Rights has become the African Court’s own standard. This transformation, or internalization, of the external judicial decisions is even clearer in the following cases. Christopher Jonas v. Tanzania and Kijiji Isiaga v. Tanzania do not cite any external judgments – the Court instead relies on its own reasoning from its previous judgments. ¹²⁶ The references to the European Court and the Inter-American Court are no longer considered a necessary part of the argumentation, as the African Court has a sufficient ‘settled jurisprudence’ of its own. ¹²⁷ Nguza Viking (Babu Seya) and Johnson Nguza (Papi Kocha) v. Tanzania makes one reference to the Diallo judgment of the ICJ, but this is found in a direct and identical reference to the Court in the Kennedy Owino Onyachi case. ¹²⁸ The reference therefore pertains primarily to a past reasoning of the African Court.

While there are occasional references to external judicial decisions in the Tanzanian Fair Trial cases following Christopher Jonas, these are used to confirm the reasoning of the African Court, ¹²⁹ or are invoked by other parties. ¹³⁰ The adoption of external principles is not renewed. External judicial decisions reappear, however, in some more recent fair trial cases, which have expanded into new issue areas, such as inhumane treatment (in Armand Guehi v. Tanzania), ¹³¹ or the death penalty (in Ally Rajabu and Others v. Tanzania). ¹³²

This example shows the development of the African Court case law through a string of related cases, as illustrated in Figure 3 (below). The African Court has expanded the ambit of the right to a fair trial under Article 7 of the African Charter, both with the inclusion of Article 14 of the ICCPR, and through reference to the jurisprudence of the other regional courts. ¹³³ The Court has applied and internalized certain approaches of the other regional human rights courts and used them to hold Tanzania responsible for violations of its human rights obligations to resolve a systemic fair trial issue.

Figure 3. Citation network of the African Court highlighting the 24 Tanzanian Fair Trial cases (blue) and the 51 cited external judicial decisions (red).

3.4 Internalization and progress beyond the fair trial cases

The Tanzanian Fair Trial cases show how the practice of using external judicial decisions changed and decreased as the African Court began to rely on its own settled case law. As stated, to date, the Tanzanian cases are the only ‘cluster’ of cases in the case law of the African Court. Most other areas have only been dealt with in a few cases, which makes it difficult to identify any repetition of this internalization process, as yet, in other areas. Internalization must be caused, at least partially, by the repetitious nature of cases and the desire to expedite rulings effectively. ¹³⁴ Having said this, looking at different areas of the case law offers a broader perspective of the Court’s practice.

In the last three years observed (2018–2020), the Court issued 37 judgments on the merits, three times as many as in the previous five years. The majority of these cases are a continuation of the Tanzanian Fair Trial cases, but the Court also issued judgments against Benin, Côte D’Ivoire, Ghana, and Rwanda. The jurisprudence of the African Court continues to expand into new areas, such as the right to marry, ¹³⁵ the right to property and non bis in idem, ¹³⁶ the right to residence, ¹³⁷ the mandatory imposition of the death penalty, ¹³⁸ and the right to work. ¹³⁹ While there has been a general decline in the number of references to external judicial decisions, these judgments, which deal with novel legal problems, reinvigorate the practice of judicial borrowing. The general decline in references, and the selective increase in these newer judgments can be seen in both Figures 1 and 2.

References to external judicial decisions appear frequently in these cases as a persuasive tool or to substantiate the interpretation. For instance, in Lucien Ikili Rashidi v. United Republic of Tanzania, the ECtHR case Stretch v. United Kingdom is invoked in relation to the requirement to take into account the possible consequences that a sudden loss of residence could have for an individual. ¹⁴⁰ In Fidéle Mulindahabi v. Rwanda, on the question of whether the right to work implies security of employment, the Court cites the Inter-American Court case Lagos del Campo v. Peru. ¹⁴¹ Furthermore, Sebastian Germain Ajavon v. Republic of Benin found a violation of the principle of non bis in idem. Besides using the jurisdictional scope to invoke Article 14(7) of the ICCPR, as the principle is not found in the African Charter itself, the African Court borrows from the ECtHR’s understanding of non bis in idem in Grande Stevens and Others v. Italy, concerning a prohibition on prosecutions of second offences arising from facts that are substantively the same. ¹⁴² In Ally Rajabu and Others v. United Republic of Tanzania, the African Court notes the emphasis that the Inter-American Court places on the conflict between the right to due process and the mandatory application of the death penalty for certain crimes in Hilaire, Constantine & Benjamin v. Trinidad & Tobago. In the same case, it is noted that ‘in arriving at its finding with respect to this issue, the Court is persuaded by the conclusions of the European Court of Human Rights in the case of Soering v. United Kingdom’. ¹⁴³

3.5 Internalizing external jurisprudence to bolster the African Court’s semantic authority

The case study of the African Court on Human and Peoples’ Rights shows the extent to which the Court uses external judicial decisions. The Court actively refers to external judicial decisions to compare the case before it to cases from other courts with a similar jurisdiction, to strengthen its arguments, or to borrow approaches. The Court shows no hesitation in borrowing from and comparing itself to the older regional human rights courts. Venzke has shown how the WTO Appellate Body enhanced its semantic authority by establishing a de facto precedent of its own jurisprudence, thus reinforcing its claims to the correct interpretation of the GATT. ¹⁴⁴ Hernández has also used the concept of semantic authority to explain how the ICJ relies on its settled jurisprudence to increase its normative power. ¹⁴⁵ Both show how international courts use their settled jurisprudence to build their semantic authority for present and future interpretations of international law. The case study shows that, while this development is also apparent in the jurisprudence of the African Court, as seen in the increased level of self-citation, the Court was initially borrowing the authority of the other regional human rights courts. As the references above show, the African Court states it is fortified in its reasoning and persuaded by the conclusions of the other regional human rights courts. These phrases, and the general use of the principles and standards developed by the other courts, are clear examples of the interpretive authority ascribed to the other regional courts by the African Court in its jurisprudence. As its own jurisprudence develops, particularly in repetitive cases, this borrowing of external authority stops, and the African Court can both develop, and lay claim to, its own authority through its own case law. I characterized this evolving practice as an internalization process, indicating the prolonged effect of a repetitive practice. The evolving jurisprudence of the African Court has been shaped by its use of external judicial decisions, and that use is contingent on the building of a settled African jurisprudence. Over time, the borrowing of the semantic authority of other interpretive actors has become an expression of the authority of the African Court itself. The African Court roots itself in the open terrain of the African human rights system. ¹⁴⁶

4. Characterizing the jurisprudence of the African Court of Human and Peoples’ Rights

The use of the jurisprudence of other regional human rights courts has allowed the ACtHPR to expand its scope and to reinforce the contours of the rights of the African Charter. But reliance on other regional human rights courts raises some specific questions. Mujuzi asks why the ACtHPR would refer to the ECtHR rather than to the practices of the African Commission or the UN Human Rights Committee. ¹⁴⁷ Unlike the ECtHR, these institutions are parts of instruments ratified by the respondent state. Mujuzi warns that ‘the Court should be sensitive to the manner in which it chooses international jurisprudence on which it will rely, as otherwise it risks being criticized for “Europeanising” its jurisprudence’. ¹⁴⁸ This criticism mirrors longstanding critiques of international human rights law and its specific characteristics. TWAIL scholars, among others, have exposed how the rhetoric and instruments of human rights have been imposed on African people, and critical historians have shown how the human rights movement is linked to a neoliberal world order that perpetuates colonial and imperial hierarchies. ¹⁴⁹ These discourses on the issues of existing international human rights law often revolve around the dilemma of engagement vs. dismissal. ¹⁵⁰

The African Union is itself a mild, even conservative, form of Pan-Africanism, built on the notions of state sovereignty and reciprocal non-intervention in domestic affairs. ¹⁵¹ Thus, it is a pragmatic institution, rather than a critical or progressive one. ¹⁵² The African Charter of Human and Peoples’ Rights, as an instrument of the African Union, follows the same engagement with the international system. However, the case law of the Court has expanded into a number of areas reaching beyond the content of the African Charter. In observing this case law, Gathii and Mwangi characterize the work of the Court as an ‘opportunity structure’ that has a supportive function for opposition parties, minorities, and civil society groups. ¹⁵³ The African Court is thus pushing the boundaries of the African Charter, in line with Gathii’s optimistic views on the potential for international law to benefit individuals, aspiring towards universality without ascribing to a pure legal formalism. ¹⁵⁴ This trend is visible in the way in which the Court even ascribes normative force to rights only found in external instruments, and in its pragmatic use of existing human rights jurisprudence.

The study of the jurisprudence shows that the African Charter has become centralized in the African human rights system. While applicants often invoke the broad jurisdiction of the Court to claim violations of human rights instruments beyond the African Charter, the Charter is taken as the starting point for any potential human rights violations. The African Court only moves beyond it when the African Charter is silent on a particular issue. ¹⁵⁵ Yet, even in these cases, the Court eventually expands its interpretation of the African Charter to include certain rights and obligations, even if they initially came from external legal instruments. ¹⁵⁶ Furthermore, the changing use of external judicial decisions, particularly in repeated judgments, centralizes the internal jurisprudence as the point of reference for future judgments. When the African Court makes a claim to its own semantic authority, it is also making a claim concerning the role of African jurisprudence within the international human rights system. Thus, the African Court is asserting its place as a participant in the international legal system.

In its design and practice, the African Court is pragmatic when it comes to the existing human rights system. Yet, at the same time, it is aspirational when it comes to the universal ideals promised by international human rights law. ¹⁵⁷ This pragmatic universalism is expressed in the practice of the Court just as it is evident in the design of the African Charter. ¹⁵⁸

This pragmatic universalism does not answer the question of whether this means that the specific interpretations of human rights norms become ‘African’ in substance or only in form. The use of European and Inter-American case law changes over time and is used in repeated cases as part of the African Court’s own reasoning. The substance remains the same, but there is a clear change in the interpretive practice of the Court. Rather than reaching beyond its own jurisprudence, the Court reaffirms its own position. This warrants a degree of scepticism as to whether the external has become ‘African’, or is simply just the external, being appropriated. Whether or not the transfer of an interpretation from one regional human rights court to another changes the regional character of the interpreted norm, or whether it simply reaffirms the universal nature of the norm, is a highly debated issue that this article does not aim to resolve. ¹⁵⁹

To contrast the idea that the transfer of an interpretation is an active choice on the part of the African Court to bolster its own semantic authority, you could consider the idea that the interpretation is actually imposed upon the citing court. From this perspective, the interpretive authority of the ECtHR is a hegemonic imposition that the African Court cannot escape and must necessarily abide by. ¹⁶⁰ The ‘European interpretation’ would as such retain its European characteristics. However, it would be stretching the contours of semantic authority to say that the regional courts are forced to follow the interpretations of the more ‘authoritative’ among them. ¹⁶¹ Quantitatively speaking, the ECtHR is the most cited court and, on its part, cites others infrequently. ¹⁶² Does this mean that the other regional courts are unable to escape from the ECtHR’s interpretive claims? No. What it entails is that they must engage with claims raised by states or applicants that invoke the interpretations of the ECtHR. There are examples from the case law of the IACtHR and in the case study above from the ACtHPR, where it is the state that refers to the more subsidiarity-based, democracy-centred jurisprudence of the ECtHR. ¹⁶³ Conversely, in Kurt v. Turkey, the ECtHR was urged by the applicant to follow the reasoning of the IACtHR’s Velásquez Rodríguez v. Honduras. ¹⁶⁴ These invocations were addressed and distinguished, rather than simply dismissed. ¹⁶⁵ However, the vast majority of the references are invoked by the courts themselves, or are at least not explicitly mentioned as being invoked by a party to the case. The regional courts are therefore rarely the ‘target’ of the semantic authority of other regional courts, but are more likely to be ‘directing’ this authority. The external judicial decisions, and the interpretations they contain, become authoritative reference points that are used to reach intended audiences. ¹⁶⁶ As Venzke states, ‘[a]ctors struggle for the law in the law and in interaction with other authorities, trying to undermine some and support others’. ¹⁶⁷ The regional courts knowingly, or inadvertently, support each other to undermine the interpretive claims brought against their own positions.

5. Conclusion

The African Court has developed a broad jurisprudence in the decade since its first judgment on the merits. This article has highlighted the role that judicial borrowing has had as a judicial practice in the consolidation of this jurisprudence. By borrowing frequently from its regional counterparts in Europe and the Americas, the African Court has utilized existing human rights jurisprudence as a fundamental part of its argumentation. In this article this was theorized as the borrowing of the semantic authority of well-established actors in the international human rights system. By studying this borrowing in its aggregate form and as a repetitive judicial practice of cross-citation, the article has given credence to the internalization of the external judicial decisions, and in turn, shown how the African Court has centralized its own jurisprudence.

This article has described regional human rights courts as ‘brothers in arms’. These institutions rarely have reason to come into conflict with each other’s interpretations and instead use each other as argumentative supports. Venzke proposed the concept of semantic authority to capture ‘the struggle’ for the meaning of the law. The African Court and its homologues in Strasbourg and San José are rarely opponents in this struggle – they are quite firmly on the same side in a larger contest for the meaning of international human rights law. What remains, in the words of Simma, is a struggle among friends. ¹⁶⁸ The collaboration between the different courts can enhance their authority and increase the value of external authorities. As Schauer writes: ‘Citation practice is a practice, and thus an institution, and consequently every citation to a particular source legitimizes the institution of using sources of that type.’ ¹⁶⁹ At the same time, the African Court’s jurisprudence is becoming increasingly self-referential, as opposed to continuing the practice of cross-citation. The article has argued that this bolsters the semantic authority of the African Court and turns its jurisprudence into the central and authoritative reference body for interpreting and understanding the African Charter and human rights in an African context.