Subsidiarity, exhaustion of domestic remedies, and the margin of appreciation in the human rights jurisprudence of African sub-regional courts

Abstract

As an organising principle within multi-level governance systems, subsidiarity stipulates that decisions should be taken at the lower of any two levels of politico-legal organisation, unless compelling reasons argue in favour of moving decision-making to the higher level. In the judicial field, the principle has found expression, procedurally, in the exhaustion of domestic remedies rule and, substantively, in the margin of appreciation and similar deference-granting doctrines. These judicial manifestations of the subsidiarity principle should particularly likely to appear in the context of courts exercising jurisdiction over individual human rights complaints. This article investigates the extent to which three sub-regional courts in Africa that shortly after their creation began to foray into the human rights domain – the ECOWAS Community Court of Justice, the East African Court of Justice, and the Tribunal of the Southern African Development Community – have recognised subsidiarity as a guiding principle for the exercise of their human rights jurisdiction. Contrary to expectations, neither the exhaustion of domestic remedies rule nor margin-of-appreciation-type doctrines have so far played any meaningful role in the human rights jurisprudence of the three sub-regional courts.

Keywords:

• Africa
• regional economic communities
• courts
• human rights
• subsidiarity
• margin of appreciation
• exhaustion of domestic remedies
• deference

Disclosure statement

No potential conflict of interest was reported by the author.

Note on contributor

Andreas von Staden is Assistant Professor of Political Science, especially Global Governance, in the Faculty of Economics and Social Sciences at the University of Hamburg. His principal research interests concern the various ways in which law and politics interact in regional and global governance arrangements (most notably in relation to issues of compliance), questions of institutional design and diffusion, and legitimacy aspects of decision-making beyond the state. Andreas holds a PhD from Princeton University and MA degrees from Princeton, Yale, and the University of Hamburg. In 2010, his dissertation on compliance with the judgments of the European Court of Human Rights won the Best Dissertation Award of the American Political Science Association’s Human Rights Section.

Notes

1. See generally Markus Jachtenfuchs and Nico Krisch, ‘Subsidiarity in Global Governance’, Law & Contemporary Problems 79, no. 2 (2016): 1–26; Michelle Evans and Augusto Zimmermann, eds, Global Perspectives on Subsidiarity (Dordrecht: Springer, 2014).

2. See Treaty on European Union (TEU), Article 5 (3), 2010 O.J. (C 83) 18 (30 March 2010).

3. See, for example, Andreas von Staden, ‘Subsidiarity in Regional Integration Regimes in Latin America and Africa’, Law & Contemporary Problems 79, no. 2 (2016): 27–52.

4. The literature on the margin in the ECHR context has become voluminous; see only Dominic McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for Its Application by the Human Rights Committee’, International & Comparative Law Quarterly 65 (2016): 21–60; Alastair Mowbray, ‘Subsidiarity and the European Convention on Human Rights’, Human Rights Law Review 15 (2015): 313–41.

5. See, for example, Lukasz Gruszczynski and Wouter Werner, eds, Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation (Oxford: Oxford University Press, 2014); Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford: Oxford University Press, 2012); Yuval Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’, European Journal of International Law 16 (2005): 907–40.

6. Legg, The Margin of Appreciation in International Human Rights Law, 1.

7. McGoldrick, ‘A Defence of the Margin of Appreciation’, 22.

8. Compare only Shany, ‘Toward a General Margin of Appreciation Doctrine’, 939 (‘growing acceptance on the part of many international courts and tribunals of the margin of appreciation doctrine’), with Eirik Bjorge, ‘Been There, Done That: The Margin of Appreciation and International Law’, Cambridge Journal of International and Comparative Law 4 (2015): 190 (‘international law … jettisoned [the doctrine] in the early postwar years’).

9. See Lucyline Nkatha Murungi and Jacqui Gallinetti, ‘The Role of Sub-Regional Courts in the African Human Rights System’, Sur: International Journal on Human Rights 7, no. 13 (2010): 119–43; Frans Viljoen, International Human Rights Law in Africa, 2nd ed. (Oxford: Oxford University Press, 2012), Ch. 11.

10. See Karen Alter, James Gathii, and Laurence Helfer, ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’, European Journal of International Law 27 (2016): 293–328.

11. Andreas Føllesdal, ‘Subsidiarity and International Human Rights Courts: Respecting Self-Governance and Protecting Human Rights – or Neither?’, Law & Contemporary Problems 79, no. 2 (2016): 148.

12. For discussion see Philipp Kiiver, The Early Warning System for the Principle of Subsidiarity: Constitutional Theory and Empirical Reality (London and New York: Routledge, 2012), Ch. 4.

13. See, for example, Andreas von Staden, ‘The Democratic Legitimacy of Judicial Review beyond the State: Normative Subsidiarity and Judicial Standards of Review’, International Journal of Constitutional Law 10 (2012): 1023–49.

14. The exhaustion of domestic remedies rule can be understood as either a substantive or a procedural rule; in international litigation it has predominantly functioned as the latter. See James R. Crawford and Thomas D. Grant, ‘Local Remedies, Exhaustion of’, in Max Planck Encyclopedia of Public International Law, online ed. (2007), paras 35–41; Dinah Shelton, Remedies in International Human Rights Law, 3rd ed. (Oxford: Oxford University Press, 2015), 91–2.

15. See, for example, Paolo Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’, American Journal of International Law 97 (2003): 67.

16. Cesare Romano, ‘The Rule of Prior Exhaustion of Domestic Remedies: Theory and Practice in International Human Rights Procedures’, in International Courts and the Development of International Law: Essays in Honor of Tullio Treves, ed. Nerina Boschiero et al. (The Hague: TMC Asser Press, 2013), 563 and 564; see, similarly, Interhandel Case (Switzerland v. U.S.), ICJ judgment of 21 March 1959, 27.

17. See Romano, ‘Rule of Prior Exhaustion of Domestic Remedies’, 564 et seq.; Crawford and Grant, ‘Local Remedies, Exhaustion of’, paras 13–34.

18. Amos Enabulele and Bright Bazuaye, ‘Setting the Law Straight: Tanganyika Law Society & anor v. Tanzania and Exhaustion of Domestic Remedies before the African Court’, Mizan Law Review 8, no.1 (2014): 237–51.

19. George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007), 89.

20. Ibid., 88.

21. Ibid., 90.

22. Legg, The Margin of Appreciation in International Human Rights Law, 18 and 20–1.

23. See, for example, McGoldrick, ‘A Defence of the Margin of Appreciation’, 28–37; Matthew Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments’, Human Rights Law Review 15 (2015): 745–74; Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge: Cambridge University Press, 2015), 132–42.

24. Jachtenfuchs and Krisch, ‘Subsidiarity in Global Governance’, 16.

25. See, for example, Louis Henkin, ‘International Law: Politics, Values and Functions’, in Collected Courses of the Hague Academy of International Law 216 (1989): 250.

26. Shany, ‘Toward a General Margin of Appreciation Doctrine’, 912–17.

27. Ronald St. John Macdonald, ‘The Margin of Appreciation’, in The European System for the Protection of Human Rights, ed. Ronald St. John Macdonald, Franz Matscher, and Herbert Petzold (Dordrecht: Martinus Nijhoff, 1993), 123.

28. See, for example, Tobias Lenz, ‘Spurred Emulation: The EU and Regional Integration in Mercosur and SADC’, West European Politics 35 (2012): 166; Sanele Sibanda, ‘Beneath It All Lies the Principle of Subsidiarity: The Principle of Subsidiarity in the African and European Regional Human Rights Systems’, Comparative and International Law Journal of Southern Africa 40 (2007): 438–40.

29. Karen Alter, ‘The Global Spread of European Style International Courts’, West European Politics 35 (2012): 139.

30. Protocol A/P.1/7/91 on the Community Court of Justice, 6 July 1991. The 1975 Treaty of the Economic Community of West African States, 28 May 1975, 14 I.L.M. 1200 (1975), had, in Article 11, already foreseen a ‘Tribunal of the Community’ to be established in the future; see also Revised Treaty of the Economic Community of West African States, 24 July 1993, 2373 U.N.T.S. 233, Articles 6 (1) lit. 3 and 15.

31. Protocol on the Community Court of Justice, Article 9.

32. Karen Alter, Laurence Helfer, and Jacqueline McAlister, ‘A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’, American Journal of International Law 107 (2013): 748.

33. See Afolabi v. Nigeria, case no. ECW/CCJ/APP/01/03, ECCJ judgment of 27 April 2004, para. 54.

34. See Alter, Helfer, and McAlister, ‘A New International Human Rights Court for West Africa’, 750–3.

35. Supplementary Protocol A/SP.1/01/05 Amending Protocol A/P.1/7/91 Relating to the Community Court of Justice, 19 January 2005. In accordance with its Article 11, the protocol entered provisionally into effect upon signature.

36. Viljoen, International Human Rights Law in Africa, 490.

37. Helen Chuma-Okoro, ‘The Nigerian Constitution, the ECOWAS Treaty and the Judiciary: Interplay of Roles in the Constitutionalization of Free Trade’, Global Journal of Comparative Law 4 (2015): 64.

38. Alter, Helfer, and McAlister, ‘A New International Human Rights Court for West Africa’, 754.

39. Revised ECOWAS Treaty, Article 4 lit. g.

40. Protocol on Democracy and Good Governance A/SPl/12/01, 21 December 2001, Article 1 lit. h.

41. Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria, case no. ECW/CCJ/APP/08/09, ECCJ judgment of 14 December 2012, paras 25–30.

42. Supplementary Protocol A/SP.1/01/05, Article 4 (introducing new Article 10 lit. d nos (i) and (ii)).

43. See, for example, Ocean King Nigeria Ltd v. Senegal, case no. ECW/CCJ/APP/05/08, ECCJ judgment of 8 July 2011, para. 7, with Senegal ‘posit[ing] that in international courts like [the ECCJ], local remedies, judicial or not, ought to be exhausted before the court could assume jurisdiction’.

44. Amos Enabulele, ‘Sailing Against the Tide: Exhaustion of Domestic Remedies and the ECOWAS Community Court of Justice’, Journal of African Law 56 (2012): 286; see also Romano, ‘The Rule of Prior Exhaustion of Domestic Remedies’, 561 (‘The rule … can be considered part of the body of customary international law.’).

45. Protocol on Democracy and Good Governance, Article 39 (emphasis added).

46. See Solomon Ebobrah, ‘Critical Issues in the Human Rights Mandate of the ECOWAS Court of Justice’, Journal of African Law 54 (2010): 9.

47. See Ocean King Nigeria Ltd v. Senegal, paras 36–41, relying, inter alia, on Supplementary Protocol A/SP.1/01/05, Article 10 (‘The provision of any other protocol that is inconsistent with the provisions of this Protocol shall to the extent of the inconsistency be null and void.’).

48. Case Concerning Elettronica Sicula S.p.A (ELSI) (U.S. v. Italy), ICJ judgment of 20 July 1989, para. 50.

49. See Alter, Helfer, and McAlister, ‘A New International Human Rights Court for West Africa’, 761–5.

50. Ibid., 765.

51. Based on a keyword search at http://www.worldcourts.com/.

52. SERAP v. Nigeria, para. 34.

53. Compare, for example, the ECtHR’s grant of a wide margin of appreciation in environmental matters in Hatton & Others v. United Kingdom, judgment of 8 July 2003, paras 96 et seq., 122 and 129.

54. SERAP v. Nigeria, paras 108–12.

55. Falana & Others v. Benin, Nigeria & Togo, case no. ECW/CCJ/APP/10/07, ECCJ judgment of 24 July 2012, paras 43–4.

56. Keita v. Mali, case no. ECW/CCJ/APP/05/06, ECCJ judgment of 22 March 2007, para. 26.

57. Ugokwe v. Nigeria, case no. ECW/CCJ/APP/02/05, ECCJ judgment of 7 October 2005, para. 32.

58. Koraou v. Niger, case no. ECW/CCJ/APP/0808, ECCJ judgment of 27 October 2008, para. 91.

59. Umar v. Nigeria, case no. ECW/CCJ/APP/12/11, ECCJ judgment of 14 December 2012, para. 21.

60. Edefe Ojomo, ‘Competing Competences in Adjudication: Reviewing the Relationship between the ECOWAS Court and National Courts’, African Journal of Legal Studies 7 (2014): 112; see also Chuma-Okoro, ‘The Nigerian Constitution, the ECOWAS Treaty and the Judiciary’, 64 (noting that ‘the non-existence of a supervisory role of the ECCJ over national courts’ is implicit in the absence of the exhaustion of local remedies rule).

61. Ojomo, ‘Competing Competences in Adjudication’, 117–18.

62. Ebobrah, ‘Critical Issues’, 14.

63. See only Ugokwe v. Nigeria, para. 13,

64. See similarly Ebobrah, ‘Critical Issues’, 10.

65. The number of violations of the right to a fair trial is second only to that of the related violation of the right to trial within a reasonable time; see the summary statistics for 1959–2015 in European Court of Human Rights, Annual Report 2015 (Strasbourg: Council of Europe, 2016), 198–9, http://www.echr.coe.int/Documents/Annual_Report_2015_ENG.pdf.

66. A first East African Community had been created in 1967, but had disintegrated again in 1977.

67. Treaty Establishing the East African Community, 30 November 1999, 2144 U.N.T.S. 255, Articles 9, 30 (1) and 33 (2). The amended treaty text can be found at http://www.eac.int/treaty/.

68. See generally Anne Pieter van der Mei, ‘Regional Integration: The Contribution of the Court of Justice of the East African Community’, Heidelberg Journal of International Law 69 (2009): 410–20.

69. See Ally Possi, ‘The East African Court of Justice: Towards Effective Protection of Human Rights in the East African Community’, Max Planck Yearbook of United Nations Law 17 (2013): 186.

70. EAC Treaty (as amended), Article 27 (2).

71. Katabazi & 21 Others v. Secretary General of the EAC & the Attorney General of Uganda, case no. 1 of 2007, EACJ judgment of 11 November 2007, para. 46.

72. Rugumba v. Attorney General of the EAC & Attorney General of Rwanda, EACJ case no. 8 of 2010, judgment of 1 December 2011, para. 23; Attorney General of Rwanda v. Independent Medical Legal Unit, appeal no. 1 of 2011, EACJ judgment of 15 March 2012, 10–11.

73. For surveys, see the two EACJ case digests prepared by the Open Society Justice Initiative in June 2013 and May 2015, available, respectively, at https://www.opensocietyfoundations.org/sites/default/files/east-african-court-digest-june-2013-20130726.pdf and https://www.opensocietyfoundations.org/sites/default/files/case-digests-eacj-20150521.pdf.

74. Attorney General of Kenya v. Independent Medical Legal Unit, 10 (noting that the first instance court ‘should have delved into the cause of action and other considerations that provide the legal linkage and basis for this Court`s jurisdiction in the instant Reference, which is separate and distinct from human rights violations’).

75. See Ally Possi, ‘Striking a Balance between Community Norms and Human Rights: The Continuing Struggle of the East African Court of Justice’, African Human Rights Law Journal 15 (2015): 208–9.

76. Ibid., 202.

77. James Gathii, African Regional Trade Agreements as Legal Regimes (Cambridge: Cambridge University Press, 2011), 279.

78. An initiative by the region’s national human rights commissions to produce an EAC bill of rights jointly with a regional NGO produced a draft bill in 2009, but no further progress appears to have occurred since then. See James Gathii, ‘The Under-Appreciated Jurisprudence of Africa’s Regional Trade Judiciaries’, Oregon Review of International Law 12 (2010): 253–4; ‘EAC Forum of National Human Rights Commissions Meets in Arusha’ (press release, 25 April 2014, http://federation.eac.int/index.php?option=com_content&view=article&id=225:eac-forum-of-national-human-rights-commissions-meets-in-arusha-&catid=40:news&Itemid=147 (noting that ‘lobby[ing] for adoption and ratification of the EAC Bill of Rights’ remains on the Forum’s agenda)).

79. Attorney General of Rwanda v. Rugumba, appeal no. 1 of 2012, EACJ judgment of 1 June 2012, para. 24.

80. See Democratic Party v. Secretary-General of the EAC, Attorney General of Uganda & Others, case no. 2 of 2012, EACJ judgment of 29 November 2013, paras 55 and 63 (‘if there is a violation of the African Charter and Protocol, this is not the forum to challenge such violation in the circumstances of this case’).

81. Attorney General of Rwanda v. Rugumba, para. 35.

82. Ibid., para. 39 (op. para. 4)

83. Kyarimpa v. Attorney General of Uganda, case no. 4 of 2013, EACJ judgment of 28 November 2014, para. 71.

84. East African Law Society v. Secretary General of the EAC, case no. 1 of 2011, EACJ judgment of 14 February 2013, para. 10 (arguing that common market rules are among the most litigated ones in the EU because the ‘wide margin of appreciation [given] to Member States to restrict the application of the common market freedoms and rights on the grounds of public policy, public security or public health, just as [provided by] Article 13 (8) of the EAC Common Market Protocol … can be easily abused’).

85. Kahoho v. Secretary General of the EAC, appeal no. 2 of 2013, EACJ judgment of 28 November 2014, para. 65.

86. Mohochi v. Attorney General of Uganda, case no. 5 of 2011, EACJ judgment of 17 May 2013.

87. Ibid., para. 19.

88. Ibid., para. 36.

89. Ibid.

90. Sibalu v. Secretary General of the EAC, Attorney General of Uganda & Others, case no. 1 of 2010, EACJ judgment of 30 June 2011, 41 and 42.

91. Ariviza & Mondoh v. Attorney General of Kenya & Secretary General of the EAC, case no. 7 of 2010, EACJ judgment of 30 November 2011, 25.

92. Ibid.

93. East African Center for Trade Policy and Law v. Secretary General of the EAC, case no. 9 of 2012, EACJ judgment of 9 May 2013, paras 56–61.

94. Treaty of the Southern African Development Community, 17 August 1992, 32 I.L.M. 120 (1993), Article 16.

95. Protocol on Tribunal and Rules of Procedure Thereof, 7 August 2000; see also Agreement Amending the Protocol on the Tribunal, 3 October 2002; Agreement Amending the Protocol on the Tribunal 2007, 17 August 2007; Agreement Amending Article 6 of the Protocol on the Tribunal 2008, 17 August 2008.

96. See Agreement Amending the Treaty of the Southern African Development Community, 14 August 2001, Articles 18 and 32.

97. Protocol on Tribunal, Article 15 (1).

98. Solomon Ebobrah, ‘Litigating Human Rights Before Sub-Regional Courts in Africa: Prospects and Challenges’, African Journal of International and Comparative Law 17 (2009): 84.

99. SADC Treaty, Article 4 lit. c.

100. Protocol on Tribunal, Article 14 lit. a.

101. Campbell & Others v. Zimbabwe, case no. 02/2007, SADC (T) judgment of 28 November 2008, para. 31.

102. Protocol on Tribunal, Article 21 lit. b.

103. Campbell & Others v. Zimbabwe, para. 33.

104. Shane Meckler, ‘A Human Rights Monster that Devoured No One: The Far-Reaching Impact of Dismantling the SADC Tribunal’, N.Y.U. Journal of International Law & Politics 48 (2015–2016): 1007–8.

105. See generally Gerhard Erasmus, ‘The New Protocol of the SADC Tribunal: Jurisdictional Changes and Implications for SADC Community Law’, tralac working paper no. US15WP01/2015 (2015) (includes text of the new protocol as an appendix; the jurisdictional clause is in Article 33). A 2013 complaint lodged with the African Commission of Human and Peoples Rights to have the dismantling of the SADC Tribunal declared to be in violation, inter alia, of the African Charter was unsuccessful; see Jeremy Sarkin, ’A Critique of the Decision of the African Commission on Human and Peoples’ Rights Permitting the Demolition of the SADC Tribunal: Politics versus Economics and Human Rights’, African Journal of International and Comparative Law 24, no. 2 (2016): 215–41.

106. See Viljoen, International Human Rights Law in Africa, 492. In addition to Campbell, they are Tembani v. Zimbabwe, case no. 07/2008, SADC (T) judgment of 14 August 2009, and Gondo v. Zimbabwe, case no. 05/2008, SADC (T) judgment of 9 December 2010.

107. Erasmus, ‘The New Protocol of the SADC Tribunal’, 18.

108. Protocol on Tribunal, Article 15 (2).

109. Bach’s Transport Ltd v. Congo, case no. 14/2008, SADC (T) judgment of 11 June 2010, para. 21. The remaining cases before the tribunal were against the SADC and not subject to the exhaustion requirement.

110. Campbell & Others v. Zimbabwe, paras 27–30; Tembani v. Zimbabwe, paras 14–27.

111. Gondo v. Zimbabwe, para. 38.

112. Campbell & Others v. Zimbabwe, para. 26.

113. Jahn & Others v. Germany, ECtHR judgment of 30 June 2005, para. 91.

114. Frederick Cowell, ‘The Death of the Southern African Development Community Tribunal’s Human Rights Jurisdiction’, Human Rights Law Review 13 (2013): 157 (reference omitted); see also Mwiza Jo Nkhata, ‘The Role of Regional Economic Communities in Protecting and Promoting Human Rights in Africa: Reflections on the Human Rights Mandate of the Tribunal of the Southern African Development Community’, African Journal of International & Comparative Law 20 (2012): 87–109.

115. Laurie Nathan, ‘The Disbanding of the SADC Tribunal: A Cautionary Tale’, Human Rights Quarterly 35 (2013): 880–1.

116. Campbell & Others v. Zimbabwe, paras 79 and 81.

117. Matczyński v. P oland, ECtHR judgment of 15 December 2015, para. 106.

118. See James & Others v. United Kingdom, ECtHR judgment of 21 February 1986, para. 46.

119. See, for example, James Gathii, ‘Variation in the Use of Subregional Integration Courts Between Business and Human Rights Actors: The Case of the East African Court of Justice’, Law and Contemporary Problems 79, no. 1 (2016): 37–62.

120. Viljoen, International Human Rights Law in Africa, 499–502; Alter, Gathii, and Helfer, ‘Backlash against International Courts’, 321–4.