Embedding regional human rights in adverse times : the judgments of the African Court on Human and Peoples’ Rights as interpretive precedents for national actors

Abstract

This article argues that the impact of the African Court on Human and Peoples’ Rights should not be measured solely by direct compliance with its contentious judgments, which remains weak and is undermined by withdrawals of individual-access declarations. Instead, it builds on the concept of res interpretata as a theory of authority: The idea that the Court’s judgments and advisory opinions serve as interpretive precedents that generate general principles that, while not formally binding erga omnes, provide heightened persuasive guidance for all state parties facing analogous issues. Grounded in treaty obligations, good-faith commitments and the Court’s mandate to interpret and apply AU and other human rights treaties, these precedents can orient domestic courts, legislatures, policy makers and administrators towards convergent standards on matters as diverse as form of punishment, criminal procedure, election management and the protection of indigenous peoples. The article compares European and Inter-American approaches, proposing a hybrid model for Africa that is sensitive to legal pluralism and the domestic context. It calls for deliberate diffusion of the Court’s jurisprudence through constitutional incorporation of AU treaties, an explicit requirement that courts consider the Court’s case law, possibilities for advisory references, and systematic use of Court principles in law reform, policy design and parliamentary oversight. AU organs, in particular the African Court itself, the Pan-African Parliament and the AU Commission on International Law, are urged to coordinate efforts, create accessible case law tools, and develop model laws. Ultimately, embedding the Court’s jurisprudence via res interpretata, supported by informed elites, active civil society and reoriented legal education, offers a pragmatic path to constructing a nascent pan-African human rights common law even in adverse political conditions.