US President Donald Trump’s second time period has introduced South Africa’s home human rights report into stark international prominence. Based mostly on misinformation, Trump’s anti-South African marketing campaign appears designed to weaken South Africa’s picture as a world torch bearer for human rights.
On the coronary heart of the difficulty lies American resentment about South Africa’s submission in December 2023 to the Worldwide Courtroom of Justice (ICJ) of a case alleging that Israel has violated the 1948 Genocide Convention.
South Africa has won accolades for its principled and brave submission of the ICJ case. Nonetheless, its function in advancing human rights on the African continent has been extra ambiguous.
My analysis has targeted on the African regional human rights structure, arrange below the African Union (AU) as a continental bulwark for human rights. The first continental judicial physique for human rights is the African Court on Human and Peoples’ Rights, based mostly in Arusha, Tanzania.
South Africa has fallen brief in a single key facet relating to championing human rights on the continent: it has failed to enroll to accepting direct particular person entry to the court docket. This issues as a result of virtually all circumstances submitted to and determined by the court docket have reached it on this approach.
South Africa’s function in African human rights system
One of many first human rights treaties South Africa formally accepted after its full embrace of democracy in 1994 is the core African Union human rights treaty, the African Charter on Human and Peoples’ Rights. Since then, it has made vital contributions to the constitution monitoring physique, the African Commission on Human and Peoples’ Rights.
Two outstanding South African human rights specialists served as members of the 11-member continental human rights watchdog. Professor Barney Pityana, who was additionally the primary chair of the South African Human Rights Fee, served between 1997 and 2003; and Advocate Pansy Tlakula, who had been the chairperson of the Unbiased Electoral Fee, served from 2005 to 2017.
When the concept of building a continental human rights court docket to enhance the protecting mandate of the African Fee was flagged, South Africa performed a pivotal function by stepping ahead to host the inaugural drafting assembly for the enabling instrument, bringing collectively specialists from across the continent to Cape City in 1995.
This was the primary constructing block that culminated within the adoption of an non-obligatory protocol to the African Constitution on Human and Peoples’ Rights on the institution of an African Courtroom on Human and Peoples’ Rights, allowing for the creation of an African Court on Human and Peoples’ Rights.
South Africa was additionally certainly one of the first states to simply accept the court docket’s jurisdiction in 2002. Immediately, 34 of the 55 African Union member states have formally accepted the protocol, thereby agreeing to the court docket’s jurisdiction. Two South Africans have been a part of the 11 judges of the court docket.
Because it turned operational, the African Courtroom has adjudicated a number of human rights circumstances, together with these affecting marginalised teams resembling persons with albinism in Tanzania.
In these circumstances, the court docket has been instrumental in defining the scope of human rights ensures below the constitution and associated treaties. It additionally outlined acceptable measures that states ought to take to respect, defend and fulfil these rights.
A lacking piece
South Africa falls brief relating to essentially the most essential measure of the African Courtroom – the acceptance of direct particular person entry.
A case by a person or group in opposition to a state get together to the constitution can find yourself earlier than the court docket in certainly one of two methods.
First, a case can attain the court docket not directly, by way of the fee. On this state of affairs, a person initially submits a case alleging human rights violations by a state to the fee. The fee then has a discretion to refer the case to the African Courtroom. This entry route applies to all 34 states which have grow to be get together to the court docket protocol. Nevertheless, this route has yielded a really small variety of circumstances – three in complete – being submitted to the court docket.
Advanced causes account for this. Considered one of them appears to be linked to an unlucky institutional turf warfare between the fee and the court docket, manifesting itself in an unwillingness on the a part of the fee to have its findings ‘reviewed’ by the court docket.
Second, a case can attain the court docket instantly, when a person or nongovernmental organisation (NGO), after exhausting home cures, submits a case instantly. However that is solely attainable if a state has made a declaration to simply accept the competence of people and NGOs with observer standing with the fee to instantly entry the court docket.
To this point, the vast majority of circumstances dealt with by the African Courtroom reached it alongside this avenue. Round 260 judgements have been delivered in respect of direct entry circumstances.
Of the 34 states events accepting the court docket’s jurisdiction, solely seven at the moment enable their nationals direct entry to the court docket. They’re Burkina Faso, Ghana, Guinea-Bissau, Malawi, Mali, Niger and The Gambia. Whereas 12 states have made the non-obligatory declaration, 5 of them have subsequently modified their thoughts, and withdrawn their non-obligatory acceptance of direct entry to the court docket. Rwanda was the primary to withdraw its acceptance, in 2016. The newest withdrawal, on 7 March 2025, was by Tunisia.
The explanations for withdrawal differ. However a typical thread is the aggravation of governments for being held accountable by the court docket for human rights violations, usually of essentially the most marginalised individuals, or of political opponents of the ruling authorities.
Probably the most quick consequence of those withdrawals has been a drop within the variety of circumstances submitted to the African Courtroom. In 2024, solely 15 new circumstances have been submitted. There have been 66 in 2019.
Why direct particular person entry issues
It’s not clear why South Africa has not (but) accepted direct entry to the court docket. However there are compelling causes for it to take action.
First, permitting direct entry from South African courts to the African Courtroom would serve to enhance home human rights safety by permitting for redress and reparations past the nationwide degree. This will probably be according to the South African structure. It’ll even be according to the precept of subsidiarity, by way of which recourse to the African Courtroom will solely be attainable in any case home cures had been exhausted.
Second, bolstering the effectiveness of the court docket is an funding in African establishments, and can underscore South Africa’s full embrace of its African identification. And if it accepts the court docket’s direct entry jurisdiction, it’s going to grow to be the AU member state with the biggest inhabitants and financial system to take action.
The appropriate second
The court docket protocol, which South Africa has ratified, requires {that a} declaration accepting direct particular person entry be made. The related provision (article 34(6)) stipulates that state events to the court docket protocol are required to (“shall”) make such a declaration. What’s left to the discretion of states is the timing. In line with the protocol, these states “shall” achieve this “on the time of the ratification of this protocol or any time thereafter”.
There has by no means been a extra opportune and vital time for South Africa to make this declaration.
The African Courtroom on Human and Peoples’ Rights dangers being underused and receding into irrelevance. That is occurring in a panorama more and more inimical to rights and rights establishments. South Africa ought to sign to different states that it accepts impartial judicial scrutiny of its human rights report because the logical finish results of having helped create the African Courtroom.
