The African court on human and peoples’ rights’ power to review its decisions [le pouvoir de révision des décisions de la cour africaine: l’article 28(3) du protocole à la charte africaine portant création de la cour africaine des droits de l’homme et des peuples en pratique] [o poder do tribunal Africano dos direitos humanos e dos povos para rever as suas decisões]

Abstract

Article 28(2) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights provides that ‘[t]he judgment of the Court decided by majority shall be final and not subject to appeal’. However, article 28(3) states that ‘[w]ithout prejudice to sub-article 2 above, the Court may review its decision in the light of new evidence under conditions to be set out in the Rules of Procedure’. Rule 78 of the Rules of the Court (2020) provides that the Court may review its decision ‘in the event of the discovery of a new fact or evidence which, by its nature, has a decisive influence and which, when the decision was delivered, was unknown to the party and could not with due diligence have been known to that party’. Since its establishment (2013 to 2022), the Court has dealt with nine review applications. In this article, it is argued that Rule 78(1) is contrary to article 28(3) because it empowers the Court to review a decision based on new facts, yet article 28(3) limits the Court’s power for review to the discovery of new evidence; the Court can review its decisions ex mero motu (although the jurisprudence of the Court suggests otherwise); the requirement that for new evidence to be admissible before the Court reviews its decision should have been unknown to the Court and the party is contrary to Rule 78(1); and that the six-month period should start running when the applicant obtains the new evidence as opposed to when they become aware of its existence (provided for in the Rules).