Book Review Symposia

Earlier in November 2020, I reviewed the book, Enforcement of Intellectual Property Rights in Africa (Oxford University Press, 2020) for The IPKat Blog. In that review, I observed that as a continent with 54 countries having distinct and diverse legal systems and rules, “understanding and following developments on law and practice in Africa can be an uphill task even for a field like IP law that ‘enjoys’ the benefit of various international treaties”. To translate this observation in practical terms, my review could only engage with the broad objectives of the book and the way in which the chapters on each African country sought to achieve those objectives.

The book is a robust piece of work that covers assessment of different subject matters in the East African Court of Justice (EACJ), the African Court of Human and People’s Rights, the defunct Southern African Development Community Tribunal, and the ECOWAS Community Court of Justice (the ECCJ). However, this review will centre on the chapters which focus on the ECCJ. This is not in any way a dismissal of chapters dedicated to other courts, it is simply in a bid to streamline this review and also a reflection of the specific research interest of the writer i.e. the quality of the ECCJ.

This essay reviews the chapter co-authored by James Gathii and Jacquelene Wangui Mwangi, The African Court of Human and Peoples’ Rights as an Opportunity Structure. Like the other chapters of the book, Gathii and Wangui’s chapter reiterates the main theme of the book while focusing on the African Court of Human and People’s rights (the African Court), which is the only dedicated human rights court in the region.

The Performance of Africa’s International Courts published under the International Court and Tribunals Series of Oxford University Press, should quickly become a canonical text for all scholars of international adjudication, and especially those of them concerned with its nature, uses and impact in Africa. The book’s editor (Prof. Gathii) and contributors make a significant contribution to “a second wave” of scholarship on Africa’s International courts. Previous scholarship on these courts had tended to focus on their potential to advance legal integration across the continent and offer human rights protection, and their evolution from full-time regional economic integration institutions to part-time human rights protection bodies.

The fact that Africa hosts the largest number of international courts and tribunals in the world warrants a closer review of their effectiveness. Previous scholarship has assessed these courts’ and tribunals’ effectiveness through the prism of compliance with their decisions. There has been little analysis of the wider impact that the courts and tribunals have on litigants, on the social, political and economic progress in the State concerned and on the values that the states that establish these courts seek to uphold and protect. This volume by African researchers with a record of writing on these courts and tribunals espouses a more nuanced Afro-centric approach which will serve as a further stimulus to analysing this important topic.

Even though Africa has proven to be a fertile ground for testing international legal regimes, most scholarly accounts remain pessimistic in assessing these experiments. This book seeks to counter these depictions in a manner consistent with epistemologies of the Global South - arguing that theories and concepts developed in the Global North do not transfer with ease to other regional settings and prompts scholars to identify alternative ways of knowing

While exercising constitutional function, one  may suggest the use of some avoidance tactics discussed here. Doing justice in individual case might require court orders with robust remedies. How to master the splits? Clearly, the book does not only answer such pertinent research questions, it also opens new fields for research. It is a must read for everybody interested in regional integration, constitutional law and access to justice in Africa.

The purpose of my essay is to flesh out why the issue of corruption should be the preeminent foreign policy issue for the South African government – in line with the imperatives of the Constitution and furthered by the jurisprudence of the Constitutional Court and other courts, as well as giving effect to its own commitment of human rights in its most recent Foreign Policy White Paper (mentioned earlier). Moreover, South Africa has ratified the United Nations Convention Against Corruption, adopted in 2003 and coming into force in 2005.

We have argued that the Constitution primarily allocates foreign policy responsibility to the national executive. The President and the Department of International Relations and Cooperation (DIRCO) and its foreign missions are the key actors in the executive responsible for making and overseeing foreign policy. The Constitution prescribes both substantive and procedural rules to guide the executive in its foreign policy choices

In South Africa’s constitutional scheme, all public power, including foreign policy powers, is subject to judicial review for legality, rationality and compliance with the Bill of Rights. However, the scope of the judicial review – and in particular the standard of rationality – is informed by a certain deference to the executive, in order to respect the democratic principle and its institutional competence. The level of deference will depend on the facts and circumstances of each case. This means that the level of scrutiny to be afforded the other branches of government’s respective foreign relations powers and responsibilities cannot be predicted with any degree of confidence. Rather, the particular circumstances and context of the case will be the primary concern of the courts.