As Karlsruhe and Luxembourg Feud, are Jo’burg and Arusha Growing Closer?

—Tom Gerald Daly, The University of Melbourne

2020, which has been a friend to no one, has certainly not spared international courts. Most obviously, the Federal Constitutional Court of Germany’s Weiss^[1] judgment of 5 May, holding a judgment of the Court of Justice of the EU ultra vires due to poor reasoning, has shaken the primacy of EU law as the very foundation of the Union. The ultimate judicial showdown has launched (seemingly) a thousand blog posts, with commentators criticizing the German Court’s own reasoning, and issuing open letters insisting that national courts simply cannot override CJEU judgments. It has upturned a long-held view of broadly positive interaction in Europe achieved, not through formal design, but by courts engaging in ‘judicial diplomacy’ and strategy across the national/international divide to allow the overall system to function without excessive friction, despite key national courts’ longstanding refusal to acknowledge the absolute and unconditional supremacy of EU law.[2]

Other international courts have also had a tough 2020. As global attention has been consumed by the COVID-19 pandemic, the African Court on Human and Peoples’ Rights in Arusha, Tanzania, has suffered a stealthy backlash, with both Benin and Côte d’Ivoire withdrawing their declarations allowing individuals and NGOs to petition the African Court. This forms part of a wider pattern of backlash that has included Rwanda and Tanzania withdrawing their declarations in 2016 and 2019, non-compliance with key judgments, and questionable plans to merge the Court with the AU’s (as yet not established) Court of Justice to create an African Court of Justice and Human Rights, which have left the Court in a position of institutional insecurity.

However, a recent positive – and potentially quite significant – development in the relationship between national and international judiciaries in the African Union (AU) has gone largely unnoticed. On 11 June, for the first ever time the Constitutional Court of South Africa cited the African Court. In the Court’s New Nation Movement^[3] ruling, holding the ban in Electoral Act 73 of 1998 on independent candidates unaffiliated to any political party standing in national and provincial elections is unconstitutional and lacking justification, Madlanga J directly cited the African Court’s first merits judgment of June 2013, Mtikila v. Tanzania,[4] which unanimously held the Tanzanian Constitution’s bar on independent candidacies incompatible with the African Charter on Human and Peoples’ Rights (‘Banjul Charter’). To say this is a positive development does not necessarily require agreement with the substance of the judgment itself (indeed, on Twitter, Tarunabh Khaitan has already voiced a negative view of the decision).

This judgment matters for more fundamental reasons. Most immediately, it presents a recognition of the value of the Court in Arusha by the Constitutional Court in Johannesburg, which has a uniquely influential position among apex courts in the African Union, as well as a global audience. The African Court also has growing importance in its own right as the final judicial interpreter of Banjul Charter – which, as the most widely ratified rights treaty in the AU (54 of 55 member States to date, except the Kingdom of Morocco, which re-joined the AU in January 2017), may arguably be viewed as the primary pan-continental human rights instrument.[5]

Indeed, in a recent article, published in December 2019 in the Constitutional Court Review,[6] I had puzzled over why the Constitutional Court had never cited the African Court. As Dire Tladi has observed, the South African Constitution of 1996 is ‘reputed to be one of the most international law-friendly constitutions in the world.’[7] The Constitution’s now-famous s 39 expressly mandates reference by courts to international law in interpreting the Bill of Rights, and requires that interpretation “must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.”

Yet, Tladi also emphasises that South African courts, including the Constitutional Court, have struggled to elaborate a sound and systematic methodology for addressing and interpreting international law. As a consequence, references to international law can be quite superficial,[8] rather instrumental (e.g. referring to international-law requirements to bolster controversial decisions), can be problematic when assessed from the public international law perspective,[9] and may be cherry-picked, with a notable focus on international courts such as the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

The lack of connection between Johannesburg and Arusha appeared even stranger in light of the two courts’ missions and case-law. They appeared in many ways to be natural allies, having both developed a robust jurisprudence promoting civil-political and socio-economic rights, accountability, political participation, and good governance. However, despite the African Court having issued a raft of landmark merits judgments since June 2013, for seven years the Constitutional Court had not cited its jurisprudence. While Jo-burg’s lack of attention could be explained away in the mid-2010s by the African Court’s low profile and small corpus case-law, it had started to look like a deafening silence by the late 2010s and into 2020.

Writing in 2019, I attempted to account for this apparent lacuna in South African case-law, placing it against the Constitutional Court’s overall approach to citing international law and courts, and canvassing a range of other possible explanatory factors, including: institutional factors such as the Constitutional Court’s possible preference to retain constitutional supremacy and adjudicative autonomy, its tendency to more readily cite non-African jurisprudence, and the African Court’s youth; as well as broader structural factors such as a lack of citations in submissions to the Court and a civil society view of the African Court as an alien entity.

In my view, this lack of connection between the Constitutional Court in Johannesburg and its international counterpart in Arusha has had two negative effects. First, it has potentially deprived the Constitutional Court of sources that could enrich its jurisprudence and anchor it in the developing regional human rights system. Second, as perhaps the two most important courts on the entire continent with regards to rights protection, it seemed problematic that their jurisprudence was evolving along two parallel tracks. Arguing for developing and deepening the relationship between the Constitutional Court and the African Court did not of course mean they will always agree – an observation that has additional bite given recent developments in Europe.

Ultimately, it is evidently better if hegemonic courts can find a modus vivendi that does not degenerate into rather naked power plays that only harm both institutions. The European debacle is all the more surprising given the many channels and fora for informal communication and the conduct of judicial diplomacy, especially through judicial networks, At a time when courts worldwide are under pressure from errant executives, and leaders like the august Karlsruhe Court are throwing judicial diplomacy to the wind, can Jo’burg and Arusha show the way? While developments like the New Nation Movement judgment and the African Judicial Network (for which I produced the initial design) hold out promise, only time will tell.

We Want to Hear from You

In collaboration with the ACtHPR Monitor, which is the leading resource on the African Court on Human and Peoples’ Rights, a project has begun to map the influence of the African Court worldwide. We are collecting judgments of national and international courts that cite its jurisprudence. You can send any information to africancourtmap@gmail.com.

Suggested citation: Tom Gerald Daly, As Karlsruhe and Luxembourg Feud, are Jo’burg and Arusha Growing Closer? Int’l J. Const. L. Blog, July 8, 2020, at: http://www.iconnectblog.com/2020/07/as-karlsruhe-and-luxembourg-feud-are-joburg-and-arusha-growing-closer/

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[1] BVerfG, Judgment of the Second Senate of 05 May 2020 – 2 BvR 859/15.

[2] See e.g. N Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP, 2010) ch. 4.

[3] New Nation Movement NPC and Others v President of the Republic of South Africa and Others CCT 110/19 (11 June 2020).

[4] ACHPR, App. 009/2011 and 011/2011 (14 June 2013).

[5] The African Charter on the Rights and Welfare of the Child is very close, with 48 state parties. However, it is not of the same breadth as the Banjul Charter.

[6] TG Daly, ‘Kindred Strangers: Why has the South African Constitutional Court Never Cited the African Court on Human and Peoples’ Rights?’ (2019) 14(2) Constitutional Court Review 389.

[7] D Tladi, ‘Interpretation and International Law in South African courts: The Supreme Court of Appeal and the Al Bashir Saga’ (2016) 16(2) African Human Rights Law Journal 310.

[8] Tladi. id., at 338.

[9] A Koagne Zouapet & MA Plagis, ‘Braamfontein encroaching? An internationalist reading of the South African Constitutional Court judgment on the SADC Tribunal’ (2019) 35(4) South African Journal on Human Rights 378.