A critique of the seizure criteria of the African Commission on Human and Peoples' Rights

Abstract

Seizure of communication is an important stage in litigating before the African Commission on Human and Peoples' Rights. At this stage a complainant is required to disclose a prima facie case, in the absence of which the communication will be refused. The seizure criteria are contained in the African Commission's Rules of Procedure. However, the procedural rules are as important as the substantive rules. Where there are burdensome procedural rules in human rights litigation, it becomes more difficult to gain access to justice. The African Commission's Rules of Procedure 2020 guide the communication proceedings of the Commission. The 2020 Rules have introduced some salient provisions that hitherto were not contained in the Rules. Under the 2020 Rules the Secretary can seize a communication during inter-session on behalf of the African Commission. Efforts have also been made to fully separate admissibility criteria from seizure criteria by deleting the admissibility criteria contained under the seizure criteria in the previous Rules. Consequently, it no longer is a requirement for a communication to pass a preliminary test of the admissibility criteria at the seizure stage. Notwithstanding these changes, the African Commission still applied the jurisprudence of the previous Rules in African Freedom of Expression Exchange & 15 Others (represented by FOI Attorneys) v Algeria & 27 Others (FOI), where the Commission also set a higher prima facie standard. This article critiques the Commission's seizure criteria and procedure. It argues that the 2020 Rules have introduced novel provisions that would necessitate the Africn Commission to change its seizure jurisprudence. It recommends that the Commission should adopt the 'might' test at the seizure stage rather than the wide prima facie standard it adopted in FOI. In this way the African Commission would have the opportunity to receive more compelling evidence of violation of the African Charter at the merit stage, rather than shutting out communications at a stage where compelling proof is not required.