The Juridical Narrowing: From Violations to Vulnerability

The resolution’s adoption of persons in street situations rather than homelessness merits doctrinal scrutiny. Within the International Covenant on Economic, Social, and Cultural Rights (ICESCR) framework, homelessness carries specific juridical weight. The Committee on Economic, Social and Cultural Rights (CESCR) established in General Comment No. 4 (1991) that states must ascertain the full extent of homelessness and identify homeless persons among vulnerable groups that require particular attention under Article 11 (para. 13).

Furthermore, General Comment No. 3 (1990) established minimum core obligations regardless of resource constraints, and the Special Rapporteur on adequate housing concluded in the Guidelines for the Implementation of the Right to Adequate Housing (2020) that preventing and eliminating homelessness constitute core obligations. This creates justiciable duties: states may not adopt retrogressive measures and must demonstrate the use of maximum available resources before claiming inability to meet obligations.

Against this established architecture, the resolution’s definitional choice signals a departure. The preamble defines the population as ‘heterogeneous, characterised by extreme poverty, social exclusion, stigmatisation, interrupted or weakened family ties, and a lack of regular, conventional housing’. This vulnerability framing acknowledges ‘adequate housing programs, including housing-led approaches’ (para 5(a)), but does not centre the right to housing as the foundational obligation from which state duties derive. The shift is from a violation’s framework to a needs-based approach: ICESCR Article 11 obligates states to ensure adequate housing; the ‘street situation’ language suggests discretionary protection for vulnerable populations.

By emphasising visible rough sleeping rather than broader housing precarity, the formulation narrows the scope. Without the structural analysis of how policies reproduce homelessness, such terminology risks sustaining rather than dismantling systemic inequalities. Regional courts, treaty bodies, and advocates must determine whether this juridical reframing reflects strategic inclusivity or constitutes a doctrinal retreat from established housing rights obligations.

The Structural Connection: What the Narrowing Enables

This juridical narrowing is not coincidental with but symptomatic of the resolution’s substantive omissions. The relationship is enabling: by reframing the problem from housing rights violations to vulnerable populations in street situations, the resolution can address the issue without interrogating the economic structures that produce homelessness. A violations framework under ICESCR Article 11 would require examining why states fail to meet their housing obligations, implicating questions of resource allocation, privatisation, and commodification. In contrast, a vulnerability framework focused on street situations requires only cataloguing protective interventions for those who are visibly sleeping rough.

By framing the issue as street situations, the resolution addresses visible symptoms while erasing structural causes. Despite Special Rapporteur Leilani Farha’s 2015 report describing homelessness as rooted in ‘treating housing as a commodity rather than a human right’ (para 2), the HRC resolution omits any mention of financialization, commodification, or structural economic drivers. The resolution’s preamble notes that ‘factors leading to street situations are complex and multidimensional’, listing inequality, poverty, and lack of affordable housing. Yet it treats these as a backdrop rather than violations requiring remedy under Article 2(1) of the ICESCR, which obligates states to use maximum available resources for progressive realisation.

This evasion extends to the resolution’s treatment of criminalisation. The 2024 study by the Special Rapporteurs on extreme poverty and adequate housing, “Breaking the Cycle: Ending the Criminalisation of Homelessness and Poverty”, documented how criminalisation violates the International Covenant on Civil and Political Rights, and analysed systemic economic policies (including austerity, privatisation, and deregulation) that produce homelessness.

The HRC resolution addresses criminalisation but severs it from this systemic analysis, framing it as a discrete policy rather than a governance mechanism. Criminalisation deepens precarity: incarceration interrupts employment, severs services, generates criminal records barring housing access, and creates legal debt. By framing homelessness as a street issue, the resolution allows for managing visibility without confronting structural causes.

Conclusion: Testing the Framework

The Grants Pass moment reveals the consequences of the juridical reframing away from homelessness. When housing rights obligations are weakened through terminological shifts, the enforcement deficit of soft law becomes acute. The HRC resolution provides normative material for advocates, but whether it hardens into enforceable law depends on regional courts and treaty bodies.

The African Court on Human and Peoples’ Rights’ 2020 advisory opinion, declaring that vagrancy laws are incompatible with the African Charter on Human and Peoples’ Rights, demonstrates how international norms can influence regional jurisprudence. The challenge for these institutional actors is whether to work within the ‘street situations’ framework or resist the definitional narrowing by re-centring ICESCR Article 11’s housing rights architecture. That choice will determine whether the resolution marks normative progress or juridical retreat disguised as consensus.

This amendment was passed with an overwhelming majority in  the Parliament, following a wave of arrests of LGBTQ+ individuals in February 2026. The Parliament echoed with chants like “homosexuals will no longer breathe in this country,” and “homosexuals will no longer have freedom of expression in this country.” The amendment delineates unnatural sexual acts as homosexuality, bisexuality, transsexuality, zoophilia and ​necrophilia. It criminalises sexual orientation and activities, as well as gender identities and expressions.

It introduces the offence of apology, which penalises anyone who promotes, supports, or defends the LGBTQ+. Since promotion of homosexuality is also punishable, it places journalists, civil society activists, human rights organisations, and medical service providers supporting the LGBTQ+ in jeopardy.

Same-sex relationships were always punishable in Senegal. However, doubling the imprisonment and fines, and punishing the “promotion” of homosexuality further endangers the LGBTQ+ community. This amendment, which now explicitly discriminates against the LGBTQ+ community, exacerbates the continuing violation of  several civil and political rights in Senegal, including the right to life (Article 6), the right against torture, inhuman, or degrading treatment (Article 7), privacy (Article 17), expression (Article 19), peaceful assembly (Article 21), association (Article 22), etc. of the International Covenant on Civil and Political Rights, 1966.

The violation of civil and political rights is condemnable. But the violation of economic and social rights is equally concerning. These violations affect granular aspects of LGBTQ+ lives, causing indirect discrimination and deprivation.

Among the various ICESCR rights infringed, the most notable is the right to the highest attainable standards of physical and mental health (Article 12). HIV status is considered a determinative factor for unnatural sex, and the (intentional) transmission of HIV is punishable. With this draconian amendment, LGBTQ+ individuals might avoid HIV testing, leading to a negative impact on detection, counselling, and treatment. NGOs cannot even freely impart sexual awareness due to fear of persecution. Since possession of lubricants and condoms is also considered indicative of homosexuality by the police, many individuals will avoid buying them, potentially causing STIs and other health concerns.

The cascading implications on the health of LGBTQ+ individuals will also erode years of Senegal’s progress against HIV. Alongside deteriorated physical health, mental health too will suffer. These implications transgress Article 12, and also defy the CESCR’s General Comment No. 14 (2000) – proscribing discrimination based on HIV/AIDS in health care accessibility (Paragraph 18), General Comment No. 22 (2016) – proscribing intersectional discrimination based on sexual orientation and HIV/AIDS status in the realisation of sexual and reproductive health (Paragraph 30), and General Comment No. 20 (2009) – promoting non-discrimination, and expanding “other status” in Article 2(2) to prohibit discrimination based on sexual orientation (Paragraph 32) and health status (Paragraph 33).

The amendment ostracises LGBTQ+ people from the community and curtails their access to public facilities. This causes difficulties accessing nutrition, sanitation, and accommodation. This violates their right to an adequate standard of living (Article 11(1)). They suffer from the lack of equal employment opportunities, jeopardising their right to work (Article 6). Similarly, the Bill also violates the right to work (Article 15), the right to health (Article 16(1)), the right to partake in cultural life of the community (Article 17(2)), etc., of the Banjul Charter.

This amendment is an addition to discriminatory laws across the world that criminalise the existence of the LGBTQ+ community and deprive them of the right to health. Three human rights treaty bodies have urged Senegal to repeal Article 319 and implement legislation prohibiting discrimination based on sexual orientation. During Senegal’s 2019 UPR cycle, 13 state parties likewise recommended. Unfortunately, it only noted their recommendations.

What did the African Court order?

The LIDHO case originated in 2006 in Abidjan. The claimants argued that the illegal dumping of toxic waste at multiple sites by the ship Probo Koala, chartered by TRAFIGURA Limited had resulted in severe harm to life and the environment. The consequences ranged from groundwater contamination to air pollution, causing multiple deaths and serious health effects. Relying on extensive evidence, the Court found that Côte d’Ivoire had violated the rights to life and health of all affected persons. Crucially, it concluded that the Ivorian authorities failed to protect the right to a generally satisfactory environment, having neither prevented the dumping nor ensured effective decontamination.

To remedy these violations, the Court ordered a comprehensive set of reparation measures, demonstrating how large-scale pollution can be effectively addressed. Côte d’Ivoire was required to prosecute those responsible for the environmental disaster, establish a compensation fund, create a register of all victims, implement legislative reforms banning hazardous waste dumping, and enact laws holding companies liable for human rights and environmental harms. The Court also mandated training programs for public officials and universities to raise awareness of the interdependence between the environment and human rights.

Côte d’Ivoire: has it really complied?

Côte d’Ivoire was ordered by the Court to implement the prescribed reparation measures within one year of the notification of the judgment. On 23 November 2023, just only two months after the Court’s ruling, the country amended its domestic law through a new Environmental Act. This new legislation incidentally reflects some of the Court’s orders, establishing, inter alia, a right to a healthy environment, a right to environmental education, criminalising the import and dumping of hazardous waste, providing a right to remedy for ecological harm, and introducing criminal liability provisions for companies involved in toxic waste dumping.

However, this legislation was not a direct response to the LIDHO judgment, raising concerns about true compliance with the judgment. According to the Ivorian Minister of Environment, in a statement of 18 October 2024, the purpose of the reform – without any reference to the Court’s ruling – was to modernize the previous legal framework and align it with the imperatives posed by emerging environmental challenges and protection needs. Côte d’Ivoire’s full compliance with the Court’s orders remains uncertain. In addition, the Court has not thus far received any detailed report on the implementation of these measures. In its 2024 Activity Report, it emphasized that key information regarding the execution of decisions concerning Côte d’Ivoire, including the LIDHO judgment, are still missing, despite repeated reminders to the authorities. In short, Côte d’Ivoire has not complied yet with the ruling, which raises the key question: what comes next?

AU Executive Council’s response and what lies ahead

On 13 February 2025, following its examination of the Court’s 2024 Activity Report, the AU Executive Council — mandated to monitor the execution of the Court’s judgments — merely called upon States to comply fully with the Court’s rulings. It stopped short of expressly naming non-compliant States, including Côte d’Ivoire. No concrete follow-up measures were adopted, nor were States required to provide detailed information on implementation. This pattern of supervision, regrettably, is not new.

Yet the story may not end there. As in the Ogiek case, the Court could suo motu convene a public hearing to assess whether — and to what extent — Côte d’Ivoire has implemented the LIDHO judgment. Such a move would be more than welcome, as the Ivorian government’s response stands to influence expectations of future environmental cases. LIDHO’s implementation therefore deserves close scrutiny.

This episode is also available on SPOTIFY.

Do also read our related blog by Furaha-Joy Sekai Saungweme: Implementing Imperfect Laws or Fighting for Law Reform: A Closer Look at Sexual Harassment Laws

The court conducted a thorough analysis, guided by the principle of purposive interpretation. It concluded that the purpose and effect of Section 226 was inconsistent with the Constitution. The provision failed to address the root causes of suicide and instead perpetuated stigma, thereby violating fundamental rights. In particular, the provision violated the right to equality and non-discrimination under Article 27, as it disproportionately targeted individuals with mental health conditions, perpetuating stigma and discrimination. It also infringed on the right to human dignity under Article 28 by criminalising individuals experiencing suicidal ideation, treating them as offenders rather than individuals in need of care and support. Further, the provision impeded the right to health under Article 43, as the fear of criminal sanctions discouraged individuals from seeking mental health assistance. Finally, the court found that Section 226 contravened the rights of persons with disabilities under Article 54, recognizing that the Mental Health (Amendment) Act 2022 classifies suicidal ideation as a mental illness, thereby warranting constitutional protection. The judgment emphasised that criminalising suicide fails to address its root causes and exacerbates the challenges faced by affected individuals.

The judgment reiterated Kenya’s commitment to its obligations under international human rights treaties, aligning with global standards. The Court noted that its decision reflects the principles of the Universal Declaration of Human Rights (UDHR), particularly Article 7, which ensures equality before the law without discrimination. Additionally, it upholds the Convention on the Rights of Persons with Disabilities (CRPD) specifically Article 4, which mandates the modification of discriminatory laws. The judgment also aligns with the International Covenant on Economic, Social and Cultural Rights (ICESCR), and particularly Article 12, that recognises the right to the highest attainable standard of mental and physical health. Furthermore, it echoes the African Charter on Human and Peoples’ Rights where Article 16 obligates states to protect the health of their citizens.

The judgement is poised to serve as validation of the transition from punitive to reformative measures to address mental illnesses. Along with the declaration of unconstitutionality of the provision, it gave several other directions to ensure this. The court highlighted the need for comprehensive mental health services, as outlined in the Suicide Prevention Strategy (2021–2026) and the Mental Health Policy (2015–2030). The Court emphasised that these two policies provide vital frameworks for improving mental health care but require full implementation. These policies focus on reducing suicide rates, raising awareness, and expanding equitable access to quality mental health services, which the Court stressed as essential for addressing Kenya’s mental health challenges.

The Court further mandated the state to prioritise mental health care by ensuring accessible and affordable services for individuals with suicidal ideation, while also requiring a review of past convictions under Section 226 to deliver justice to those affected. However, the judgment stops short of explicitly detailing what such a review would entail. Questions arise as to whether this process includes reversing prior convictions, granting early release to those incarcerated under the repealed provision, or offering expungement of criminal records.

The court’s adoption of a human rights-based approach to mental health marks a historic step in recognising mental health struggles as a public health issue. Activists and NGOs have also hailed it as a significant milestone which will help in reducing stigma and encouraging open discussions on mental health. However, much of its impact hinges on the government’s next steps, which remain to be seen.

First, the decision turns a blind eye to how difficult it was to bring a constitutional claim prior to the 2010 Constitution due to structural and systemic injustice. Kenya has a dark historical past dating back to pre- and post-independence, replete with an account of gross violations of human rights. Most of these violations went without redress due to an authoritarian rule cloaked under the guise of parliamentary democracy.  This has been extensively documented in the 2013 Truth Justice and Reconciliation Committee Report. The authoritarian rule made it difficult for parties to seek intervention from courts for protection of their rights, as judges lacked judicial independence and answered to the President who fired them at will. Justice often belonged to the highest bidder making it a privilege of a select few wealthy individuals. Most claims met their death at the altar of poverty and corruption, leading to the formation of a tribunal to investigate judges, which resulted in the famous Ringera Report.

Second, as per the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, for a limitation to be valid, it must be (i) prescribed by law, (ii) necessary in a democratic society and (iii) pursue a legitimate aim. It is quite disconcerting that a 6-judge bench of the SCORK did not even attempt to examine if the impugned limitation met these requirements. I argue that while it may meet the first requirement, the limitation is not necessary in a democratic society and does not pursue a legitimate aim.

The core of Article 22 of the 2010 Constitution deals with the right to an (effective) judicial remedy which is integral to citizenship in a democratic society and a constitutional government. The normative basis for the right to a remedy and reparation is well established under Article 2(3) of the ICCPR, which is recognized as part of Kenyan law by dint of Article 2(6) of the  2010 Constitution. This right demands that a judicial authority examine the merits of a case and issue a legally binding decision. Where a remedy is ineffective, in that it offers no prospects of success and where a remedy is insufficient, in that it is incapable of addressing one’s complaint, then according to the African Commission on Human and Peoples Right’s holding in  Jawara v The Gambia, such a remedy is rendered nugatory. In Kenya according to Monata Matiko Chonchorio v John Marwa Chabaro [2021] eKLR, the successful invocation of the law of limitations ousts the jurisdiction of Courts (See para 16 – 18). Such ouster of jurisdiction renders a remedy ineffective (See Jawara v. Gambia para 38).

While it has been  successfully argued elsewhere that for purposes of fair trial as provided under Article 50 of the Constitution, it is expected that one should not advertently delay commencement of a suit filed under Article 22, such that the other party is compromised in putting forth a plausible defence, it is an elementary principle of constitutional law that the burden of proof always lies with the petitioner, not the respondent. Further, for violations committed by the State, the elaborate systems within the State allow for a meticulous systematised record and preservation of information.

Also, as a budding democracy that is yet to overcome the challenges institutional independence, separation of powers and respect for the rule of law as amongst the three arms of government, it would be imprudent for a court to adopt such an interpretation that limits the justiciability and enforceability of the Bill of Rights, and which is oblivious to the systemic and structural challenges faced by the justice system, as this spells doom for the protection of human rights under the hard-gained 2010 Constitution.

Although the Court touched on the state’s duty to investigate, it missed an important opportunity to highlight the failure of the state to exercise due diligence in prosecuting alleged perpetrators of violent crimes in the framework of public protests. Subverting due diligence obligations is a violation of Article 1 of the African Charter which requires state parties to protect and promote rights.

Unchecked and systemic abuse of crime suspects by officers of the Nigerian Police Force’s Special Anti-Robbery Squad (SARS) led to the #ENDSARS protests. The applicants in this case witnessed the protests and some of the violations that accompanied them. They approached the court when the prospect of state-delivered justice for victims became slim.

The #ENDSARS protests were initially met with silence from the government. That changed when the protesters persisted and slowly began to gain ground. At that point, the Muhammadu Buhari-led federal government decided to increase the boots on the ground by inviting the military to perform policing duties, notably breaking up public protests. The consequence was immediate and devastating. The victims, HRW Report, media, and at least one government investigation report hinted that lives were lost, and limbs maimed.

Addressing the question of violation of the right to life, the ECOWAS Court correctly observed that the applicants did not canvass their claim on behalf of any deceased victim. However, it took the initiative to direct the government of Nigeria to investigate the allegation of arbitrary killings. Interestingly, Nigeria’s counsel drew the Court’s attention to the report of a government-sponsored panel on the #ENDSARS protests. Regrettably, the Court did not review that report.

Had it examined the report, the Court would have observed that it contained specific recommendations regarding prosecuting named individuals for their roles in the “arbitrary and indiscriminate shooting and killing of protesters.” This finding should have led to further inquiry about the status of prosecutions. To the extent that there was no credible evidence of prosecution, it stands to reason that the Court would have raised questions about Nigeria’s compliance with its due diligence obligations.

In a prior case, the Court explained that the due diligence principle invites states to prevent human rights violations in their territories. Additionally, it expects the state to investigate, prosecute, and punish perpetrators when violations occur. Failure to do this triggers state responsibility. It is important to point out that the acts of state institutions and officials constitute state conduct.

It is unclear why the Court failed to apply this principle to the case under review. However, it is fundamental to the quest for redress and prevention of future violations. This is crucial given the current #EndBadGovernance protests in different cities around Nigeria. The protests demand better governance outcomes and have already led to the extrajudicial execution of at least 13 protesters.

Making a point to hold states accountable for failing to fulfil their due diligence obligations sends clear signals to governments and their institutions that the rights of citizens matter and should be protected. After the initial slip, the Court has another opportunity to fix the problem. The judgment requires Nigeria to report on the state of compliance within six months. I hope the report provides a framework to discuss the prospects of prosecution and the value of additional investigations.

The global abolishment of capital punishment is due to its violation of the most fundamental human rights. In 1984 Tanzania ratified the African Charter on Human and Peoples’ Rights (the African Charter) which reflects the country’s commitment and involvement in the African human rights framework. The African Charter’s Resolutions and Protocol accentuate the necessity of protecting the right to life and advancing to abolishing capital punishment in Africa. Furthermore, the Tanzanian Constitution makes provision for the right to life, stating that “every person has the right to live and to the protection of his life by the society in accordance with the law.”

In the recent February 2024 judgment in Crospery Gabriel & another v United Republic of Tanzania,  the African Court ordered Tanzania to review and report on its Penal Code within six months and publish within three months the rehearing of the cases of two death row applicants without the presupposition of capital punishment. This case reinforces the African Charter as a legal instrument which promotes and protects fundamental human rights and basic freedoms in Africa by contributing to the abolishment of capital punishment.

The Tanzanian death row inmates (the applicants) in this case were two of the four accused individuals whose actions led to the death of a seven-year-old child when they forcefully entered a family home and inflicted certain family members with machete injuries. They were arrested and charged with murder by the Bukoba High Court. In 2014, the applicants were convicted of the offence of murder and sentenced to death by hanging by the High Court. The applicants then filed a memorandum in 2016 complaining of violations of fundamental rights and justice to the African Court against the United Republic of Tanzania under the African Charter, namely, the rights to non-discrimination (Article 2), equality (Article 3), life (Article 4), human dignity (Article 5), and to a fair trial (Article 7).

In this judgment, as in its prior judgment in Rajabu v Tanzania, the Court ordered Tanzania to “undertake all necessary measures to repeal from the Penal Code the provision for the mandatory imposition of the death sentence.” Similarly, the Court in another recent judgment, Lazaro v Tanzania, found that the imposition of capital punishment by hanging is “inherently degrading”. This apparent irreconcilability of capital punishment to the African Charter is sufficient for legislative changes. As Judge Dumisa Buhle Ntsebeza in his judgment declaration reiterated, capital punishment by hanging is undebatably a human rights offence and compromises “the fundamental principles of human dignity, justice, and equality.”

Since Tanzania is now governed by the rule of law, the numerous decisions by the African Court that call for Tanzania to do away with this colonial relic that is capital punishment are calls for Tanzania to adhere to its own Constitution. The argument that, as an African country, it would be impossible for Tanzania to get rid of capital punishment does not hold much weight in light of the fact that more African countries continue to abolish capital punishment. For example, Zambia in 2022 amended the Penal Code Bill Number 25 by replacing the death sentence with life imprisonment. Zimbabwe in February 2024 also restricted the scope of capital punishment, but international and regional human rights standards require abolishing capital punishment in all circumstances, thus the Zimbabwean amendment is not exemplary.

Despite the de facto moratorium on executions since 1994, the Tanzanian courts persist in sentencing people to death, and in Kambole v the Attorney General of Tanzania in 2019 the High Court of Tanzania ruled to uphold the death penalty. The judgment of the African Court serves as a reminder to Tanzania of its commitment to reinforce human rights and urges the Tanzanian government to make necessary amendments to do away with the inhumane injustice that is capital punishment.

The African Court on Human and Peoples’ Rights in La LIDHO, LE MIDH, LA FIDH & others v Republic of Cote d’Ivoire (the Trafigura case) acknowledged that the African Charter on Human and Peoples’ Rights may have a horizontal effect on corporations. That is lawyer’s parlance for stating that the African Charter may bind corporations. The majority held that the African Charter has an indirect horizontal application, whereas the sole dissent by Justice Blaise Tchikaya pushed the needle further, holding that the African Charter has a direct horizontal effect.

The facts of the case stem from a well-known environmental disaster. In 2006, MV Probo Koala, a vessel chartered by the multinational company Trafigura, discharged and dumped highly toxic waste at several sites in Abidjan, Côte d’Ivoire. There were no chemical waste treatment facilities at these sites. This led to 17 people dying of toxic gas inhalation. Over 100,000 people were affected and left ill. The applicants, three NGOs, alleged that the respondent State – Côte d’Ivoire – violated the following rights of the African Charter: the right to life, the right to physical and mental health, the right to a healthy environment, and the right to information of the affected communities. The African Court unanimously held that each of these rights had been violated. While the case is interesting for several reasons, this piece will focus on the question of corporate accountability.

To contextualise the impact of the judgment, it is necessary to consider the accountability of corporations before this judgment. The African Commission on Human and Peoples’ Rights held that the primary obligations to protect, respect, and fulfil human rights fell within the province of States. This is because Article 1 of the African Charter places this responsibility on States. But there is more: States generally have a somewhat supervisory role in how these corporations operate by giving them licences and permission to operate and sometimes providing the state’s legal and military power to the corporations, as seen in SERI v Nigeria. Notwithstanding this, the Commission recognised that there are also indirect responsibilities on corporations who cause these violations. For instance, in Institute for Human Rights and Development and Others v DRC, the Commission dispatched a letter to the Anvil Mining Company to take responsibility for its role in alleged human rights violations in that case.

The Commission, in the form of soft law, has also enumerated the obligations of corporations under the African Charter. Consider its State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment: there, the Commission unequivocally finds that Article 27 of the Charter provides a ‘clear legislative basis’ that multinational corporations have obligations towards entities. This includes negative obligations as well as, to an extent, positive obligations.

This brings us to the Trafigura case. The majority of the African Court held that it is ‘incumbent’ on companies, particularly multinational companies, to respect international law obligations. The fact that this obligation primarily rests with States does not mean it ends there. The majority takes heed of the United Nations Guiding Principles on Business and Human Rights and held ‘[s]uch a responsibility requires enterprises to commit themselves to public policies in prevention and reparation, due diligence in continuous identification of the consequences of their activities and lastly, setting up procedures aimed at solving problems caused by their action.’ However, the majority ultimately finds that the primary obligation lay with the Respondent State, recognising only indirect responsibilities to the multinational corporation, Trafigura.

The minority judgment held that ‘Trafigura became fully liable the moment it loaded toxic and hazardous waste that was dangerous to human life and the ecosystem onto a vessel.’  To this end, ‘[t]he Court should horizontally extend the positive obligations contained in the African Charter to the powerful multinational companies that mastermind massive human rights violations on the continent’. The horizontal application of human rights applies to environmental law and is not just a theoretical conjuncture.  The minority decision relies on the Guiding Principles to establish that liability may exist beyond that of the State, recognising human rights’ horizontal effect. Justice Tchikaya recognises that this approach would not diminish the State’s obligation as a public authority.

This decision is significant for several reasons. First, while the majority found the Ivorian state responsible for human rights violations, the dissenting judgment by Judge Tchikaya went further. He argued for extending accountability to powerful multinational companies involved in such abuses. This highlights a critical discussion on corporate accountability in Africa. Second, the dissent emphasises the missed opportunity to directly hold the corporation responsible, especially given the foreseeable consequences of their actions. Third, both judgments point to more robust accountability standards under the African Charter. This pushes for stricter corporate responsibility within the African human rights system. Fourth, the dissent highlights the relevance of soft law developments like the ACHPR’s State Reporting Guidelines, which link corporate and individual duties. This strengthens the argument for considering non-binding standards alongside binding treaties.

While the Court did not directly hold the corporation liable, this case paves the way for future litigation and strengthens the call for direct corporate accountability in Africa. The dissenting judgment is a compelling reminder of the human cost of corporate actions and the need for stricter legal frameworks to hold them responsible.

On 21 August 2023, the African Court received an application from the Democratic Republic of Congo (DRC) against the Republic of Rwanda. No material is available to the public at present. It is unclear, for instance, whether the DRC relies on its personal jurisdiction under Article 5(1)(b) of the Protocol on the Establishment of an African Court on Human and People’s Rights (which confers personal jurisdiction on a State Party which has lodged a complaint to the Commission) and/or Article 5(1)(d) (which confers personal jurisdiction on a State Party whose citizen is a victim of human rights violation).

This blog takes the opportunity to revisit the dispute between the DRC and Rwanda, which concerns alleged human rights violations in the context of the Second Congo War. For over two decades, the DRC has attempted to litigate this human rights dispute in international fora.

Proceedings before the African Commission

On 3 March 1999, the DRC filed a communication with the African Commission of Human and Peoples’ Rights against Rwanda (in addition to Burundi and Uganda). This was the first inter-state communication filed with the African Commission.

The DRC alleged violations of human rights committed by the armed forces of these State Parties in Congolese territory since August 1998 [2]. It claimed violations of a large share of the human rights set out in Part I of the African Charter on Human and Peoples’ Rights [8]. Rwanda denied these allegations and justified the presence of its troops in Congolese territory on grounds of national security, further alleging that the Congolese government was assisting groups hostile to Rwanda [22]. Moreover, Rwanda refused to take part in the proceedings beyond the admissibility stage [97].

The African Commission handed down its decision in May 2003. Due to the non-participation of Rwanda in the proceedings, it was treated as having admitted the allegations against it [97]. Frans Viljoen has noted that the non-participation of Rwanda hampered the ability of the African Commission to authoritatively ascertain the facts (see also his contribution to the conference on inter-state cases).

Proceedings before the International Court of Justice

On 28 May 2002, the DRC filed an application against Rwanda with the International Court of Justice (ICJ), claiming violations of various human rights instruments. By a judgment dated 3 February 2006, the ICJ held that it lacked jurisdiction to consider the merits [128]. In respect of each instrument, Rwanda was either not a party (as with the Convention Against Torture) or had made reservations excluding the ICJ’s jurisdiction (as with the Genocide Convention). Moreover, the ICJ argued that certain preconditions, such as the attempt to settle disputes by agreement, had not been met (as with the Convention on the Elimination of All Forms of Discrimination Against Women).

Looking ahead

Inter-state disputes are uncommon in the African human rights system. Only three inter-state communications have been received by the African Commission, of which this dispute is the first. The dispute is once again a milestone as the first inter-state proceeding before the African Court.

The application will undoubtedly be met with strong resistance from Rwanda for at least three reasons. First, its non-participation in the African Commission proceedings signals its attitude towards litigation of the dispute. Secondly, Rwanda already has a strained relationship with the African Court (see Daly and Wiebusch): in 2016, in response to an individual complaint filed by opposition politician lngabire Victoire Umuhoza, Rwanda withdrew its declaration under Article 34(6) of the Protocol which permitted individuals and non-government organisations to file complaints with the African Court. Thirdly, diplomatic relations between the DRC and Rwanda are currently volatile due to the resurgence of the March 23 Movement in 2022 (a rebel military group supported by Rwanda, according to a June 2023 report of the United Nations Group of Experts on the DRC). Rwanda for its part is rankled by the DRC’s support of the Democratic Forces for the Liberation of Rwanda, a military group founded by ethnic Hutu soldiers and militiamen in the aftermath of the Rwandan genocide (likewise found to be substantiated, per the June 2023 report of the Group of Experts). These patterns of violence in the Great Lakes region demonstrate that this dispute, albeit decades old, is not confined to history.

Those interested in following the dispute can do so via the African Court’s public dashboard.

Want to learn more?

• African Human Rights Court holds vagrancy laws incompatible with African human rights instruments
• The Supreme Court’s Rwanda Judgment: What Now for the Government?
• Tanzania’s Withdrawal of Access to the African Court: Further Retrogression in Human Rights Protection in East Africa
• Reparations for the Ogiek: A Step in the Right Direction