1. Introduction
Over the last few years, the African Court on Human and Peoples’ Rights (AfCHPR, Court) has been playing an increasingly prominent role in protecting individual and collective rights, enhancing debates about democracy and the rule of law on the African continent. This has been achieved by a series of judgments of the Court that have vigorously upheld democratic principles. In 2021, for instance, the Court delivered a judgment in Noudehouenou, in which it found the entire constitutional amendment process in Benin to be invalid.Footnote 1 In 2022, it delivered another judgment in Western Sahara, in which it held that Morocco violated the Sahraoui Peoples’ collective right to self-determination and governance.Footnote 2 And in June 2023, it ordered Tanzania to change its National Elections Act because it employed senior civil servants to perform the administrative and operational roles of its Electoral Commission.Footnote 3 The African Commission on Human and Peoples’ Rights (Commission) too, despite adversities, has made significant efforts to uphold human rights standards in Africa. In November 2024, for example, it delivered a brave decision condemning Ethiopia for not allowing all Ethiopians to participate freely in the 2015 elections.Footnote 4
Many of these applications before the Commission and the Court are accompanied by requests for provisional measures, whose purpose is to safeguard the status quo ante, that is, to preserve a situation until a final judgment is rendered.Footnote 5 Provisional measures in the African system have attracted relatively little comment thus far.Footnote 6 To date, the Court has considered 93 requests for interim protection and has issued 53 orders indicating provisional measures.Footnote 7 To put this in perspective, the number of orders indicated represents more than one third of the judgments of the Court on the merits.Footnote 8 The high number of both requests and orders should not come as a surprise. The trend of more frequent provisional measures requests is noticeable also before the other two regional human rights courtsFootnote 9 and United Nations (UN) human rights bodies, such as the Human Rights Committee,Footnote 10 as well as the International Court of Justice.Footnote 11
Understanding the function of provisional measures in the caseload of the African Court appears to be vital. On the one hand, the rise in requests for provisional measures showcases the gradually increasing confidence in the Court’s role as a human rights guarantor in Africa among individuals and communities. On the other hand, the orders indicated by the Court have been at the heart of the discontent of African Union (AU) Member States with the Court.Footnote 12 The proactive stance of the Court has triggered fierce reactions from States, as evidenced by the recent wave of withdrawals of declarations made under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights (Protocol),Footnote 13 under which States accept the competence of individuals and non-governmental organisations (NGOs) to petition the Court directly. Between 2016 and 2020, Rwanda, Tanzania (where the seat of the Court is located), Benin and Côte d’Ivoire all withdrew their Article 34(6) declarations, with Tunisia also withdrawing in 2025.Footnote 14 These withdrawals have undermined the much-needed direct access to institutions mandated with protecting individual human rights.Footnote 15 They have also fuelled the existing crisis of democracy and rule of law across the continent.Footnote 16 Individual States have been opposing the democratisation project of the AU and the Regional Economic Communities (RECs),Footnote 17 as evidenced by the withdrawal of the military-led Alliance of Sahel States (Mali, Burkina Faso and Niger) from the Economic Community of West African States (ECOWAS)Footnote 18 and, more recently, from the International Criminal Court (ICC).Footnote 19
Against such a backdrop, this article sheds light on the mechanism of provisional measures in the context of the African human rights system. The article is structured as follows. Section 2 contains brief introductory remarks on the African system, with a particular emphasis on the Commission and the Court as well as brief reference also to the African Committee of Experts on the Rights and Welfare of the Child (ACERWC). Section 3 provides an overview of questions related to the authority of these bodies to indicate provisional measures and maps out the relevant legal bases and requirements for requests to be successful. Section 4 discusses the proactive approach of African bodies to indicating provisional measures, and the unavoidable political ramifications of such an approach. It highlights the use of the Court as a platform for challenging violations of core human rights as well as the lack of participatory and democratic structures of governance in Member States. Section 5 identifies challenges and limitations in the African bodies’ approach to provisional measures and makes some suggestions for the way forward.
As this article argues, the frequency of requests for provisional measures is illustrative of the growing confidence that aggrieved applicants demonstrate towards the system and, specifically, the Court. At the same time, the Court has been increasingly proactive in cases involving core rights, such as the rights to life and a fair trial,Footnote 20 and, more recently, also political and electoral rights.Footnote 21 There should be optimism about the role of the Court in shaping the global human rights discourse and promoting democratic participation in Africa. Better guidance to applicants and more precise information about procedural requirements could however be beneficial in enabling greater compliance with the Court’s orders.Footnote 22
2. The African system and the Banjul Charter
The idea of a human rights court for Africa was born in the 1960s, being first discussed at the Pan-African Conference in 1961 that was held in Lagos, in which lawyers, judges and law professors from 23 countries participated.Footnote 23 However, the process of adopting the African Charter on Human and Peoples’ Rights (ACHPR, Charter) under the auspices of the then Organization of African Unity (OAU) (now the AU), was delayed by the various endemic and structural problems besetting African countries, as well as various ideologies rejecting Western concepts of rights.Footnote 24 The Charter was only adopted by the Member States of the OAU in 1981.Footnote 25 The innovations of the Charter have attracted some positive comment.Footnote 26 However, many authors have questioned the relevance of the Charter to the continent,Footnote 27 or underlined the need for more political commitment by AU Member States to the Charter, the Court and the Commission.Footnote 28
For nearly two decades the Commission was the only body in this system assuming a monitoring, quasi-judicial role.Footnote 29 The Court was set up in 2005, 18 years after the Commission started functioning, following the adoption and entry into force of the Protocol.Footnote 30 To add uncertainty to the system’s future, there is also the prospect of the Court being merged with the African Court of Justice (through the 2008 Protocol),Footnote 31 while also extending its jurisdiction to criminal matters (through the Malabo Protocol).Footnote 32 However, it is unlikely that these developments will materialise, given the limited ratifications of these instruments,Footnote 33 financial challengesFootnote 34 and other complexities related to the structure of the proposed merged Court.Footnote 35
The Charter is complemented by other human rights instruments, in particular, the African Charter on the Rights and Welfare of the Child (ACRWC),Footnote 36 the Maputo Protocol on the Rights of WomenFootnote 37 and the African Charter on Democracy, Elections and Governance.Footnote 38 These are implemented and monitored by key bodies of the AU, including the Commission and the Court. Specifically, the ACRWC is monitored by ACERWC, which will be discussed in Section 3.2. There are also various special mandates, including rapporteurs and working groups working on various themes,Footnote 39 the latter of which may also urge governments to take immediate action as part of their mandates.Footnote 40
3. Provisional measures in the African human rights system
3.1. The powers of the Commission
The Charter does not contain an explicit provision relating to the powers of the Commission to indicate provisional measures. Under the Charter, the powers of the Commission to investigate emergencies are relatively weak,Footnote 41 as the only option available to it is to submit relevant information to AU leaders requesting them to attend to the matter,Footnote 42 if they so decide.Footnote 43
The Commission, however, has expanded its powers by unilaterally asserting its authority to indicate provisional measures in its own practice. In 1995, eight years after its establishment, the Commission decided to insert a provision in its Rules of Procedure authorising it to indicate measures to avoid irreparable damage to the victimFootnote 44 in cases requiring immediate attention.Footnote 45 The formal requirements for such ‘emergency communications’ are the same as those pertaining to any petition that reaches the Commission under the category of ‘other communications’.Footnote 46 The Commission has nonetheless exhibited great flexibility in its consideration of the requirements pertaining to provisional measures, particularly its assessment of the exhaustion of domestic remedies.Footnote 47 Also, it may indicate provisional measures (or ‘warnings’) not only at the request of an applicant who files a request, but also proprio motu, as warranted by the circumstances of each case.Footnote 48
There are two broad issues which the Commission faces in respect of its legitimacy and acceptance. The first issue relates to transparency and accountability. Article 58(3) of the Charter vests the AU Assembly of Heads of States and Government (AU Assembly) with the primary responsibility to examine any cases of emergency submitted to it by the Commission,Footnote 49 which pursuant to Article 59 are confidential.Footnote 50 Furthermore, the measures indicated by the Commission are not published in separate documents (as, for example, in the press releases of the European Court of Human Rights (ECtHR)) and are only referred to as part of the decisions of the Commission on the merits.Footnote 51 As a result, it is not possible to know with certainty exactly how many measures the Commission has indicated, nor how many requests have been submitted to the AU Assembly. By the same token, it is unclear whether the Commission has taken prior action in cases where the complaint has been found inadmissible on the merits (for example, for non-exhaustion of domestic remedies)Footnote 52 or those where a complaint has been discontinued following an amicable settlement of the dispute (as occurred in the case against Djibouti concerning atrocities committed against members of the ethnic group Afar).Footnote 53
The second issue is the implementation of the orders and the lack of compliance with such orders. The Charter does not contain guidance as to the implementation of orders. It is also evident that, more often than not, States have simply failed to comply.Footnote 54 The case of the execution of the Ogoni 9 (among the first cases that the Commission had to consider) confirms this viewpoint.Footnote 55 Likewise, in an early case of the Commission relating to the arbitrary deportation of two prominent political figures—Chinula and Banda—from Zambia to Malawi, the Commission requested that Zambia adopt provisional measures allowing the burial in Zambia of Chinula, who had died in Malawi, and the return of Banda.Footnote 56 Zambia, however, did not comply with the measures.Footnote 57 In the case of Zegveld v Eritrea, despite the Commission issuing an order requiring the immediate release of 11 political detainees imprisoned in Eritrea incommunicado,Footnote 58 years later most of them remained imprisoned or were missing.Footnote 59
3.2. The powers of ACERWC
The ACERWC, which was established by the ACRWC in 2001, is mandated to interpret and apply the ACRWC.Footnote 60 The ACRWC mentions the ability of the ACERWC to examine communications, but is silent on provisional measures. The ACERWC, however, has asserted the authority to indicate them in its practise ‘in order to prevent any other harm to the child or children who would be victims of violations’.Footnote 61 The ACERWC also monitors the implementation of its decisions, and follows up with the respondent States.Footnote 62
The ACERWC has issued ten decisions on the merits so far.Footnote 63 Akin to measures indicated by the Commission, the measures indicated by the ACERWC are also not published in separate documents and are only referred to as part of the ACERWC’s decisions on the merits. The first case where an examination of provisional measures requests appeared in the decision was a complaint related to access to health during detention, in which the Committee found that the applicant had failed to meet the requirements of urgency and irreparable harm.Footnote 64 The second case dealt with the application of the death penalty in Sudan, in relation to the imminent execution of three individuals for crimes committed while they were under the age of eighteen.Footnote 65 The applicants requested the ACERWC to order Sudan to stay the executions. The measure was granted on the basis of Article 5(3) ACRWC which prohibits the death sentence for crimes committed by children.Footnote 66 The ACERWC requested the State to respond within 15 days on the implementation of these provisional measures.Footnote 67 However, the State did not respond.Footnote 68 Since the ACERWC lacks a follow-up mechanism on the implementation of provisional measures, there is no publicly available information on whether the State actually complied with the measure.
In other cases, the ACERWC has shown dynamism in relation to emergencies by sending urgent letters of appeal. In 2019, for instance, it issued a letter of appeal to Tanzania, jointly with the Commission, regarding the right to education of pregnant girls.Footnote 69 In the relevant individual communication, it ordered the State to immediately prohibit the practice of forced pregnancy testing and subsequent expulsion of pregnant and married students from schools in Sudan.Footnote 70 It also ordered the State to remove both pregnancy and wedlock as grounds for expulsion of schoolgirls in education laws in order to give ‘immediate attention to the realisation of children’s rights’.Footnote 71
3.3. The powers of the Court
The power of the Court to indicate provisional measures derives from the Protocol, which provides it with considerable discretion, stating in Article 27(2) that ‘in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons’ the Court ‘shall adopt provisional measures as it deems necessary’.Footnote 72 The Court will generally determine whether to adopt provisional measures following a preliminary examination of its jurisdiction, either upon a reference from the Commission, at the request of the applicant or proprio motu.Footnote 73 Further, the Court has explained on many occasions that the criteria of urgency, gravity and irreparable harm stated in both the Protocol and the Rules of Procedure are cumulative.
However, the meaning of these terms has not been clearly defined. As the Court has reiterated on many occasions, the applicants need to produce specific evidence to demonstrate urgency, gravity and the likelihood of irreparable harm.Footnote 74 However, the Court generally does not define irreparable harm but, rather, associates it with a ‘reasonable probability’ of its occurrence, when considering the applicant’s circumstances.Footnote 75 In a few instances, however, the Court has attempted to elaborate further. For instance, in Flora Mustafa, the Court stated that irreparable harm consists of ‘damage that cannot be sufficiently redressed or compensated through any subsequent reparation’,Footnote 76 while in Kajoloweka it stated that ‘it is established in instances where the impugned acts are capable of seriously compromising the rights … in a way that prejudice would be caused prior to the Court making a determination on the merits’.Footnote 77
Furthermore, there is no particular definition of gravity, or extreme gravity in the Court’s jurisprudence—rather, the Court often mentions that ‘urgency is consubstantial with extreme gravity’.Footnote 78 Urgency, in turn, appears to be dependant not only on the nature of the harm as irreparable, but also on the likelihood and imminence of harm since, according to the Court, urgency also means that there is a ‘real and imminent risk of irreparable harm’ that will be caused before the Court renders its final decision, noting also that this risk should not be a purely hypothetical one.Footnote 79 It has therefore been suggested that the Court could benefit from more rigour and consistency in relation to the interpretation of these terms—and, generally, from more conceptual precision.Footnote 80
4. The increasing proactivity of African bodies in indicating provisional measures and its implications
4.1. Proactivity of the Commission
Cases before the Commission, and subsequently also provisional measures requests, are not all publicly available. It does seem, however, that consideration of requests prior to 2013 were limited in number,Footnote 81 and that the Commission gradually began to take a more proactive approach from 2010 onwards. For example, in a 2011 case concerning the imminent execution by hanging of the suspects of the 2004 Sinai bombings, the Commission took urgent action to request the Egyptian Government to stay the executions just a few days after being seized of the case,Footnote 82 with which Egypt complied.Footnote 83
By virtue of its own practice and Rules of Procedure, the Commission has been open to accepting applications by the public, NGOs, communities or even entire peoples,Footnote 84 without necessarily identifying specific individuals as victims.Footnote 85 As a result, it has also been able to develop its jurisprudence with respect to Indigenous Peoples’ rights, including their cultural rights.Footnote 86 Cultural rights have generally been given limited attention in the human rights discourse and even more so in Africa, where ‘culture’ has been largely weaponised to justify exclusion, marginalisation, discrimination and other human rights violations.Footnote 87 The Commission, however, has endeavoured, to some extent, to compensate for the historical neglect of social, economic and cultural rights, and has also affirmed that these rights generate obligations of immediate application under the Charter.Footnote 88 The landmark Endorois case,Footnote 89 in particular, has provided inspiration to other human rights bodies, including the Inter-American Court of Human Rights,Footnote 90 as the first international ruling on the right to development and the first definition of peoples and Indigenous Peoples in the African system. It is worth noting that in Endorois, the Chairperson of the Commission addressed an urgent appeal to the President of the Republic of Kenya based on reports received by the Commission alleging harassment of the Chairperson of the Endorois Welfare Council.Footnote 91
At the same time, the Commission has been delivering landmark decisions on the merits with respect to cases involving grave human rights violations and massacres, such as the Kilwa case.Footnote 92 Since 2018, the work of the Commission has been undermined by political pressure in the context of the AU.Footnote 93 This appears to have resulted in a significant decrease in the number of provisional measures orders issued in 2019 and 2020.Footnote 94 The 2020 revised Rules of Procedure of the Commission contain certain passages that could be interpreted as attempts to excessively regulate the Commission, hence impacting its independence vis-à-vis other African bodies.Footnote 95 The updated Rules of Procedure also imposed obstacles on the relinquishment of cases to the Court, such as the introduction of a requirement of prior consent by the complainant.Footnote 96 Consent may be extremely hard to achieve in certain situations, such as when the applicants are detained incommunicadoFootnote 97 or when they wish to remain anonymous. Given the low number of States that have accepted the procedure of individual petitions directly to the Court under Article 34(6) Protocol, this may have a negative impact on the system as a whole. Furthermore, unlike the previous 2010 Rules of Procedure, the revised Rules of Procedure do not provide for the Commission’s power to refer matters to the Court in cases of non-compliance.Footnote 98
Still, however, it seems that the Commission’s work continues to provide some relief for victims of human rights violations. In 2022, the Commission indicated provisional measures for the first time in a situation concerning widespread human rights violations in the context of an armed conflict—to protect civilians from irreparable harm in the Tigray Region in Eritrea.Footnote 99
4.2. Proactivity of the Court
In the initial years of its operation, the Court exercised its power to order provisional measures sparingly. The first two successful provisional measures requests were initiated by the Commission and involved the situation in Libya in the context of the uprisings in the north of the country, in 2011 and 2012, respectively. In the former, the Commission requested the Court to take action and order Libya to undertake investigations with respect to human rights atrocities.Footnote 100 In the latter, it requested the Court to order Libya to respect the rights of Gaddafi himself, such as, for example, having access to a lawyer.Footnote 101 Although these orders did not have any real prospect of being implemented, they did show that the Court might be willing to adopt a more dynamic stance from then on.Footnote 102
The Commission’s stance with respect to cultural and land rights, particularly in Endorois, has arguably also influenced the Court to some extent. In Ogiek, for example, one of the first cases that reached the Court directly from the Commission’s relinquishment of jurisdiction, the Court recognised an immediate need to protect indigenous land rights over the Mau Forest Complex where the Ogiek people lived.Footnote 103 Despite the lack of compliance with the provisional measures orders and the subsequent judgments on reparations by Kenya (the Ogiek are still struggling to realise their rights, as evidenced by recent applications to the Court),Footnote 104 the Court’s orders and judgments still set an important precedent in the area of indigenous land rights.Footnote 105 The Court has also exhibited a proactive stance in finding violations of media freedom. Shortly after delivering its judgment in Zongo, concerning the murder of an investigative journalist in Burkina Faso,Footnote 106 the Court was seized of a case brought by another journalist, Samba Konaté, who was detained in Burkina Faso on defamation charges.Footnote 107 In this case, provisional measures were also indicated in respect of the journalist to allow him access to medical care while detained. This willingness of the Court to indicate provisional measures in relation to medical care has also been confirmed in other cases,Footnote 108 such as Noudehouenou,Footnote 109 in which the Court ordered Benin to remove all impediments to the applicant’s access to medical care as well as to provide him with copies of his medical files.Footnote 110 However, the Court indicated that claims should be as specific as possible and supported by adequate evidence.Footnote 111
Between 2016 and 2020, the Court dealt with a high number of cases involving the mandatory imposition of the death penalty for certain crimes, such as murder. There were 17 such cases brought against Tanzania in 2016 alone,Footnote 112 and another four between 2019 and 2021.Footnote 113 All the requests for provisional measures in these cases were granted.Footnote 114 This shows the determination of the Court to indicate provisional measures in emergency situations—without considering in detail the procedural requirements which could prevent an order being made.Footnote 115 Similar proactivity has been visible in the area of political rights, such as in Noudehouenou,Footnote 116 Soro Footnote 117 and Ajavon. Footnote 118 In these cases, the Court granted the requests for the indication of provisional measures, ordering the respondent States to remove obstacles in order to allow the applicants (prominent political figures and opposition leaders) to exercise their rights to vote and to stand for election. In Noudehouenou, in particular, the Court found violations of the principle of peoples’ consensus in electoral matters, as guaranteed in the African Charter on Democracy, Elections and Governance.Footnote 119 More recently, in Rahmani, the Court granted the request by the applicant and other members of the Tunisian judiciary, who petitioned the Court to stay the implementation of a Tunisian law dismantling the country’s judicial system in order to allow citizens to ‘participate freely in the governance of their country’.Footnote 120
The orders in these cases add to the dynamic stance of the Court on the merits, many of these cases exemplifying its use as a forum for strategic litigation and social mobilisation.Footnote 121 It is also clear from the nature of the applications submitted to the Court that individuals still have confidence in the African system. In Adelakoun, for example,Footnote 122 the applicants went as far as requesting the Court to suspend the decision of the Malian Constitutional Court, which declared that judgments of the Court of Justice of ECOWAS were non-binding, and claimed that the decision ‘would constitute a violation of the right of access to justice protected by Article 7 of the Charter’.Footnote 123
4.3. Response to the proactivity of the Court: Article 34(6) declaration withdrawals
The proactive stance of the Court has, however, not been without hostile reactions. The hostility started with Rwanda, which withdrew its declaration under Article 34(6) Protocol in the course of proceedings before the Court (related to the stay of execution of Mrs Umuhoza, who was sentenced to death for propagation of genocidal ideology).Footnote 124 Tanzania and Benin followed,Footnote 125 with both countries publicly announcing that they would not comply with the Court’s orders.Footnote 126 This stance was emulated by Côte d Ivoire, which withdrew its declaration following the indication of provisional measures in Soro. Footnote 127
Whilst orders indicating provisional measures are certainly not the only reason for discontent, unsurprisingly, the Court appears to have been more hesitant to indicate provisional measures following the withdrawals. Of the 22 requests for the indication of provisional measures between 2022 and 2025, only three were granted.Footnote 128 A request to stay executions in Tanzania was also dismissed.Footnote 129 Rahmani, in which the Court ordered Tunisia to stay the implementation of a law of reforming the Tunisian judicial system, was one of the three cases in which provisional measures were granted,Footnote 130 alongside a judgment ordering Tunisia to repeal various presidential degrees and ‘return to constitutional democracy within two years from the date of notification of [the] judgement’.Footnote 131 Shortly after, Tunisia also notified the Court of the withdrawal of its Article 34(6) declaration,Footnote 132 making it the fifth State to withdraw.
While it is premature to draw definitive conclusions, the proactivity of the Court in ordering provisional measures does not appear to have been in vain. This is not only because of the actual use of the Court as forum for political change but also because, regardless of State reactions, the orders and judgments have already been widely read and used by civil society for advocacy and scrutiny purposes, in addition to being debated before UN human rights bodies.Footnote 133 The case of Ally Rajabu illustrates this point well since, on the merits, the Court found that the mandatory imposition of the death penalty constituted not only an arbitrary deprivation of life under the Charter, but also a violation of human dignity,Footnote 134 with these findings being hailed by international NGOs as a step towards the abolition of the death penalty in Africa.Footnote 135
5. Limitations and challenges to the African bodies’ practices
5.1. Prima facie jurisdiction and other procedural requirements
Certain procedural challenges warrant examination. According to its established jurisprudence in the context of orders for provisional measures, ‘the Court need not ascertain that it has jurisdiction on the merits of the case, but it simply needs to satisfy itself that it has prima facie jurisdiction’.Footnote 136 Typically, at this stage of proceedings the Court confines itself to examining, for example, whether the respondent State has accepted the jurisdiction of the Court under Article 34(6) Protocol, and whether it has ratified the Charter or any other relevant human rights instruments.Footnote 137 This allows the Court to be proactive without necessarily having to establish full jurisdiction over the case.Footnote 138 The Court has consistently examined its prima facie jurisdiction on the merits, without examining in detail the admissibility of complaints.Footnote 139 Nonetheless, an examination of admissibility could also be useful at this stage, facilitating a more positive reception from the respondent States. This is especially true for those cases that are seemingly likely to be inadmissible at a later stage such as, for example, those where domestic remedies are not exhausted prior to addressing a case to the Court.Footnote 140
Furthermore, more explicit reasoning with respect to urgency and the other procedural requirements would be much welcomed, if only for the purpose of judicial clarity. By way of example, in a case against Tanzania involving electoral violence, the applicants requested the Court to stay the 2020 elections, and ensure that independent candidates were able to run for election.Footnote 141 The Court did not grant the request for the indication of provisional measures, because the applicants ‘could have sought the provisional measures earlier than they did’.Footnote 142 In this way, however, the Court omitted to address the context, namely, the ‘arrests and harassment of opposition politicians and journalists’.Footnote 143 Further, as pointed out by various authors, there is nothing that prevents the Court from examining whether an application is generally well-founded, including the conditions of admissibility, at the stage of considering its prima facie jurisdiction.Footnote 144 This would arguably better serve the rationale of the procedures, including time, effort and resources.
5.2. Better guidance to applicants
Applicants before the Court would benefit from more guidance on the requirements for a request for provisional measures, as well as on the nature of requests that are likely to be declined from the outset. It is evident, for example, that the Court does not consider sudden precarity,Footnote 145 nor financial distress in general,Footnote 146 as matters rising to the threshold of irreparable harm. Better guidance to applicants, therefore, as well as more detailed interpretation of the irreparable harm criterion, would go a long way in enhancing the authority of provisional measures. Likewise, it could be stated in advance that certain types of concerns are unlikely to be the object of an order indicating provisional measures. In cases relating to the rights to liberty and a fair trial, for example, the Court typically upholds requests for access to health and medical care for those detainees and prisoners whose health is at stake, but has never gone as far as ordering their release.Footnote 147 This approach is in line with the approach of other regional courts such as the ECtHR, which typically rejects requests for the release of prisoners as part of interim measures—even in the context of a hunger strike.Footnote 148 It would also be useful to find ways to dismiss from the outset requests of a nature that are unlikely to be granted in discrete rulings (similar to the single judge formation at the ECtHR). Moreover, it could also be emphasised in the form of formal guidance to applicants that, unless a specific personal harm is demonstrated, requests are likely to be rejected (in the European context, such guidance has been issued in the form of practice directions annexed to the updated Rules of Procedure (2024)).Footnote 149 In accordance with the case law of the AfCHPR, laws impacting on political rights—such as banning political rallies—could be suspended pending the adjudication of a case on the merits, provided the applicants meet the requirements (in particular, that of irreparable harm).Footnote 150 The Court, however, could be more affirmative in its guidance to prospective applicants that constitutional changes should not normally be the object of consideration in the context of provisional measures as a matter of urgency.Footnote 151
5.3. Realistic expectations and greater specificity in the orders
Orders indicating provisional measures that are far-reaching or unrealistic are likely to be counterproductive. Hence, while orders without a real prospect of implementation were arguably accepted in the early years of the Court’s operation (as, for example, in the cases against Libya), serving to distinguish the Court’s role from the more politicised role of the AU,Footnote 152 this no longer seems to be the case. As African human rights bodies are maturing, the prospect of actual implementation and compliance enhances the effectiveness of the mechanism. This is especially true in cases involving large sums of public expenditure to facilitate the realisation of such orders. The Ajavon case, for example, prompts the question whether there should be a better balancing mechanism between the rights of the applicant (who was unable to participate in the elections because of his previous criminal conviction for cocaine trafficking) and the financial burden on States to reorganise their elections.Footnote 153 In other cases, the orders also appear to contain broad indications with little prospect of State compliance. In the case concerning Noudehouenou’s first application to the Court to allow him run in the 2021 presidential elections in Benin, for example, the orders contained general indications to remove administrative, judicial and political obstacles to the applicant’s candidacy.Footnote 154 It is unlikely that States will comply with measures involving deep political changes as a matter of urgency and within a short space of time, before a case is adjudicated on the merits.
5.4. Developing a culturally sensitive approach
The Court’s understanding of the criteria of urgency and irreparable harm could be further developed in the field of the right to equality, in light of Article 18 Charter, which protects the dignity of women but also refers to values such as family and morality.Footnote 155 A culturally sensitive approach could encourage women and girls to request provisional measures in cases involving gender-related human rights violations, such as forced pregnancy testing, lack of consent to marriage and female genital mutilation, which is still seen by some as ‘African heritage’.Footnote 156 Such cases so far have typically not been accompanied by requests for provisional measures,Footnote 157 yet they involve extreme urgency and irreparable harm. A more proactive stance by African bodies towards integrating a gender perspective on human rights could therefore contribute to more women having recourse to African human rights bodies and, eventually, also requesting interim relief. A case against Ghana involving the right to education for girls of the Ashanti communities living in rural areas that is currently pending before the Court could be the first step in this direction.Footnote 158
6. Conclusion
The frequent indication of provisional measures has been a positive development since the early years of the Court’s operation. Regardless of the outcome of the requests, the proliferation of requests for the indication of provisional measures exemplifies in and of itself the success of the system. It is a sign of growing confidence in the mechanism, exuding hope for the future.Footnote 159 Applications for provisional measures concerning political reforms and electoral matters, in particular, indicate the growing confidence of individuals in the Court. The Court in these cases has been proactive in protecting the right to participate freely in democratic life. This last point is evidenced by the series of orders in politically charged and high-profile cases such as Soro, Noudehouenou and Ajavon. Further, the provisional measures of the Court in death penalty cases have been a catalyst for wider public debate and advocacy on the subject—for this reason alone, the contribution of African bodies to enhancing the global human rights discourse is truly unique.
At the same time, the proactive stance of the Court has triggered adverse reactions from certain AU States—Benin, Côte d’Ivoire, Rwanda, Tanzania and Tunisia. Even the work of the Commission has been undermined by political pressure in the context of the broader crisis within the AU. It seems that, following State reactions and withdrawals of their declarations under the Protocol, the Court has been indicating provisional measures with more caution.
In this context, it is hoped that African human rights bodies will continue to show resilience, serving as a platform to promote participatory structures of governance. It is important for individuals and prospective applicants not to lose their confidence in the African human rights system. Some more guidance in the form of practice directions could be useful in this respect, to ensure that measures are as specific and as realistic as possible.
Finally, the Commission and Court serve as a paradigm of standard-setting in Africa. It is important to note that both these bodies, along with ACERWC, are slowly building their own worldview and approach to human rights by reference to their own jurisprudence and views. The Commission and the Court have played a vital role in interpreting and protecting human rights, including Indigenous land rights as well as social, economic and cultural rights—taking stock of the continent’s own challenges. Their contribution could grow in other areas of human rights law, such as those relating to gender equality and women’s rights, especially in matters deserving of urgent protection.
Acknowledgments
The author would like to thank the anonymous reviewers for their insightful comments and feedback, which have greatly contributed to refining the ideas presented in this article. Open Access funding was provided by the Qatar National Library.
Open access
