Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences

27 European Journal of International Law, 293-328 (2016)

iCourts Working Paper Series, No. 21

Duke Law School Public Law & Legal Theory Series No. 2015-19

35 Pages Posted: 10 Apr 2015 Last revised: 7 Aug 2016

See all articles by Karen J. Alter

Karen J. Alter

Northwestern University - Department of Political Science; University of Copenhagen, Faculty of Law - iCourts Center of Excellence

James Thuo Gathii

Loyola University Chicago School of Law

Laurence Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: August 5, 2016

Abstract

This article discusses three credible attempts by African governments to restrict the jurisdiction of three similarly situated sub-regional courts in response to politically controversial rulings. In West Africa, when the Court of the Economic Community of West African States (ECOWAS) upheld allegations of torture by opposition journalists in Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the East African Court of Justice (EACJ) and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to restructure the EACJ in ways that have significantly affected the Court’s subsequent trajectory. In Southern Africa, after the Southern African Development Community (SADC) Tribunal ruled in favor of white farmers in disputes over land seizures, Zimbabwe prevailed upon SADC member states to suspend the Tribunal and strip its power to review complaints from private litigants. Variations in the mobilization efforts of community secretariats, civil society groups and sub-regional parliaments explain why efforts to eliminate the three courts or narrow their jurisdiction were defeated in ECOWAS, scaled back in the EACJ and largely succeeded in the SADC.

Suggested Citation

Alter, Karen J. and Gathii, James Thuo and Helfer, Laurence, Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences (August 5, 2016). 27 European Journal of International Law, 293-328 (2016); iCourts Working Paper Series, No. 21; Duke Law School Public Law & Legal Theory Series No. 2015-19. Available at SSRN: https://ssrn.com/abstract=2591837 or http://dx.doi.org/10.2139/ssrn.2591837

Karen J. Alter

Northwestern University - Department of Political Science ( email )

601 University Place
Evanston, IL 60208
United States

University of Copenhagen, Faculty of Law - iCourts Center of Excellence ( email )

Karen Blixens Plads 16
Copenhagen, DK-2300
Denmark

James Thuo Gathii

Loyola University Chicago School of Law ( email )

25 East Pearson
Chicago, IL 60611
United States

Laurence Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

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