The African Union’s continental human rights court, the African Court on Human and Peoples’ Rights (AfCHPR), received a setback this past March when Tunisia withdrew its declaration, under Article 34(6) of the Court’s founding Protocol, allowing individuals and NGOs to directly access the Court. Tunisia accounts for 24 (7%) of the 371 applications to the African Court to date, and the two-thirds of applications still pending (and those submitted before the withdrawal enters into force) will proceed as normal. However, once the withdrawal takes effect in March 2026, Tunisians will be deprived of a potential avenue for accountability for human rights abuses during a period of increasing authoritarianism in Tunisia.
Tunisia’s move also has significant institutional implications for the African Court. Tunisia is the fifth state to revoke individual and NGO access, amid ongoing backlash against the Court. Of the 34 states that have ratified the AfCHPR’s Protocol since it entered into force in 2004, only 12 states have ever deposited a declaration under Article 34(6) enabling individuals and NGOs to directly petition the Court. Now only 7 states remain. Individuals and NGOs account for the vast majority of AfCHPR cases, so this, like the other declaration withdrawals, will negatively impact the Court’s caseload and ability to promote state accountability for human rights violations.
Tunisia’s Road to Withdrawal: Democratic Backsliding, Activism at the African Court, and State Backlash
Tunisian officials did not disclose the rationale behind the withdrawal decision. However, some observers (e.g., here and here) have connected Tunisia’s declaration withdrawal to increasing authoritarianism within the state and declining human and political rights since President Kais Saied’s election in 2019. Saied has effectively ruled by decree since he dismissed the government and suspended parliament in 2021. The independence of the judiciary has also suffered with Saied dismissing dozens of judges, abolishing the High Judicial Council (Tunisia’s judicial watchdog), and pressuring the judiciary to target opposition candidates leading up to last year’s presidential election.
Amid this democratic decline, Tunisian lawyers, activists, politicians, and members of the public have sought justice at the AfCHPR. Of the 24 applications against Tunisia at the AfCHPR, 16 have been filed since 2021, with most alleging violations of democratic rights and fair trial rights, especially concerning the independence of judicial organs. The AfCHPR has handed down judgments in two significant and politically sensitive cases. First, in its September 2022 decision in Brahim Ben Mohamed Ben Brahim Belgeith vs Republic of Tunisia, the Court found that several 2021 presidential decrees that dismissed the government, removed powers from parliament, and revoked most of the constitution had violated the Applicant’s right to be heard and his right to participate in public affairs. Tunisia has not implemented the Court’s order for it to repeal the decrees and return to constitutional democracy within two years. Second, in November 2024, in Samia Zorgati vs Republic of Tunisia, the Court held that two 2022 decree-laws, which dissolved Tunisia’s High Judicial Council and its legislature, violated Tunisia’s obligation to guarantee the independence of the judiciary and the legislature. The Court ordered Tunisia to repeal the law and to restore the High Judicial Council within six months.
Tunisia’s withdrawal of individual and NGO access represents a sharp turn from its once-friendly relations with the AfCHPR. When Tunisia signed the Article 34(6) declaration in 2017, following a visit from a delegation of African Court officials, then President Beji Caid Essebsi expressed his view that the African Court must be promoted on the continent. The Court also has had Tunisian representation on its bench since 2014 with Justice Rafaâ Ben Achour.
The human rights community, within and beyond Africa, has been highly critical of the withdrawal. In their press release, the University of Pretoria’s Centre for Human Rights urged the government to reverse its decision. Additionally, a joint press release by a group of organizations seeking to abolish the death penalty criticized Tunisia’s decision for “further eroding the rights of citizens and the rule of law.” A joint statement from 12 civil society organizations, including Human Rights Watch and Amnesty International, expressed similar concern and condemnation.
Mounting State Backlash Against the African Court
Tunisia is the fifth state to withdraw its declaration, following Rwanda in 2016 and a quick series of withdrawals from Tanzania in 2019 and Benin and Côte d’Ivoire in 2020. Rwanda’s withdrawal in 2016 initially seemed to be an isolated development in response to the Ingabire Victoire Umuhoza vs Republic of Rwanda case. The Rwandan government argued the Article 34(6) declaration gave a platform to and sanitized the image of the Applicant, an opposition party leader who had been convicted for spreading the ideology of genocide.
In 2019, the withdrawal by Tanzania—the African Court’s host state that accounts for the bulk of applications to the Court—was a significant blow to the Court. Tanzania did not clearly identify the reasoning for its decision, which may have been prompted by recent rulings and judgments from the Court (see a previous EJIL:Talk! post here). Benin and Côte d’Ivoire’s withdrawals that soon followed in March and April of 2020 (summarized here) seem to relate to undesirable Court decisions. For Benin, officials pointed to provisional orders in Ghaby Kodeih vs Republic of Benin and Ghaby Kodeih and Nabih Kodeih vs Republic of Benin which were unfavourable to the government and the business community. However, observers speculate that another provisional order in Sébastien Germain Marie Aïkoué Ajavon vs Republic of Benin, to postpone an election to ensure the rights of an exiled opposition politician, may have prompted Benin’s withdrawal. While Côte d’Ivoire’s notice did not explain its withdrawal, state officials have referenced provisional measures in Guillaume Kigbafori Soro and 19 Others vs Republic of Côte d’Ivoire which ordered a stay on the execution of an arrest warrant for Guillaume Soro, a former prime minister and a candidate in the 2020 presidential election.
No further declaration withdrawals followed for several years, and there were even some developments in support of the African Court. The Court successfully encouraged two more states (Niger and Guinea Bissau) to deposit declarations, and received rhetorical state support as it continued to promote itself amongst AU states. Additionally, as reviewed in our recent EJIL:Talk! post, 2024 marked a resurgence of activism for extending the African Court’s jurisdiction to include international crimes via the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol), for which Angola provided the first ratification.
Tunisia’s withdrawal, however, continues the overall trend of states withdrawing individual and NGO access to the Court when dissatisfied with applications before the Court and its decisions. Based on the contexts for state withdrawals so far, governments appear unwilling to accept orders from the Court which are politically unfavourable, especially when involving a government’s actions to suppress political opposition. More generally, these withdrawals can be situated within the trends of democratic backsliding and increasing authoritarianism across the continent (and world).
These withdrawals have both concrete and more diffuse effects. With less individual and NGO access to the Court, the African Court’s caseload and opportunities to develop its jurisprudence have declined. During the latter half of the 2010s, the AfCHPR consistently received an average of 45 cases per year. In stark contrast, the AfCHPR has received an average of 19 cases per year thus far in the 2020s. This dramatic decline cannot be separated from the impact of Article 34(6) declaration withdrawals as approximately 79% of the cases ever filed at the AfCHPR were brought against states which have since revoked this access mechanism.
More generally, with each declaration withdrawal, the gap widens between the aspiration of a “continental” human rights court and the reality of its de facto scope of influence. If individuals and NGOs within a state do not have direct access to the African Court, that state effectively evades legal accountability from the Court. If a state has merely ratified the Court’s Protocol without depositing an Article 34(6) declaration, only the African Commission on Human and Peoples’ Rights (ACPHR) and other AU states can submit applications against it. To date, however, both these categories of potential applicants have shown their reluctance to use the African Court, with the ACHPR referring only 3 cases and just one (DRC v. Rwanda) interstate application.
The Way Forward
Tunisian individuals and NGOs still have one year from Tunisia’s notice of withdrawal (7 March 2025) to directly petition the Court. This delay provides a window in which individuals and NGOs can mobilize to “litigate while they can” at the AfCHPR (see De Silva and Plagis 2023). In the case of Tanzania, for instance, applications to the Court increased within the year following Tanzania’s notice of withdrawal, compared to the previous year. Tunisian individuals and NGOs could similarly take advantage of the period before the declaration withdrawal takes effect.
Tunisia’s move may also prompt renewed advocacy to increase state support for the Court more generally, to counter the ongoing series of declaration withdrawals. The Court itself has been continuing to promote itself through sensitization missions to African states, which aim to increase Protocol ratifications, Article 34(6) declarations, and awareness of the Court. There is clearly also scope for other AU actors, African states, and extra-regional actors to defend the Court against ongoing state backlash. The broader human rights community, as discussed, has already mobilized to criticize this development and support the Court, but sustained advocacy from a variety of stakeholders will be needed to counter this ongoing trend that undermines a key human rights accountability mechanism in Africa.