US President Donald Trump’s second term has brought South Africa’s domestic human rights record into stark international prominence. Based on misinformation, Trump’s anti-South African campaign seems designed to weaken South Africa’s image as an international torch bearer for human rights.
At the heart of the issue lies American resentment about South Africa’s submission in December 2023 to the International Court of Justice (ICJ) of a case alleging that Israel has violated the 1948 Genocide Convention.
South Africa has won accolades for its principled and courageous submission of the ICJ case. Nevertheless, its role in advancing human rights on the African continent has been more ambiguous.
My research has focused on the African regional human rights architecture, set up under the African Union (AU) as a continental bulwark for human rights. The primary continental judicial body for human rights is the African Court on Human and Peoples’ Rights, based in Arusha, Tanzania.
South Africa has fallen short in one key aspect when it comes to championing human rights on the continent: it has failed to sign up to accepting direct individual access to the court. This matters because almost all cases submitted to and decided by the court have reached it in this way.
South Africa’s role in African human rights system
One of the first human rights treaties South Africa formally accepted after its full embrace of democracy in 1994 is the core African Union human rights treaty, the African Charter on Human and Peoples’ Rights. Since then, it has made significant contributions to the charter monitoring body, the African Commission on Human and Peoples’ Rights.
Two prominent South African human rights experts served as members of the 11-member continental human rights watchdog. Professor Barney Pityana, who was also the first chair of the South African Human Rights Commission, served between 1997 and 2003; and Advocate Pansy Tlakula, who had been the chairperson of the Independent Electoral Commission, served from 2005 to 2017.
When the idea of establishing a continental human rights court to complement the protective mandate of the African Commission was flagged, South Africa played a pivotal role by stepping forward to host the inaugural drafting meeting for the enabling instrument, bringing together experts from around the continent to Cape Town in 1995.
This was the first building block that culminated in the adoption of an optional protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights, allowing for the creation of an African Court on Human and Peoples’ Rights.
South Africa was also one of the first states to accept the court’s jurisdiction in 2002. Today, 34 of the 55 African Union member states have formally accepted the protocol, thereby agreeing to the court’s jurisdiction. Two South Africans have been part of the 11 judges of the court.
Since it became operational, the African Court has adjudicated several human rights cases, including those affecting marginalised groups such as persons with albinism in Tanzania.
In these cases, the court has been instrumental in defining the scope of human rights guarantees under the charter and related treaties. It also defined appropriate measures that states should take to respect, protect and fulfil these rights.
A missing piece
South Africa falls short when it comes to the most crucial measure of the African Court – the acceptance of direct individual access.
A case by an individual or group against a state party to the charter can end up before the court in one of two ways.
First, a case can reach the court indirectly, via the commission. In this scenario, an individual initially submits a case alleging human rights violations by a state to the commission. The commission then has a discretion to refer the case to the African Court. This access route applies to all 34 states that have become party to the court protocol. However, this route has yielded a very small number of cases – three in total – being submitted to the court.
Complex reasons account for this. One of them seems to be linked to an unfortunate institutional turf war between the commission and the court, manifesting itself in an unwillingness on the part of the commission to have its findings ‘reviewed’ by the court.
Second, a case can reach the court directly, when an individual or nongovernmental organisation (NGO), after exhausting domestic remedies, submits a case directly. But this is only possible if a state has made a declaration to accept the competence of individuals and NGOs with observer status with the commission to directly access the court.
So far, the majority of cases handled by the African Court reached it along this avenue. Around 260 judgements have been delivered in respect of direct access cases.
Of the 34 states parties accepting the court’s jurisdiction, only seven currently allow their nationals direct access to the court. They are Burkina Faso, Ghana, Guinea-Bissau, Malawi, Mali, Niger and The Gambia. While 12 states have made the optional declaration, five of them have subsequently changed their mind, and withdrawn their optional acceptance of direct access to the court. Rwanda was the first to withdraw its acceptance, in 2016. The most recent withdrawal, on 7 March 2025, was by Tunisia.
The reasons for withdrawal differ. But a common thread is the aggravation of governments for being held accountable by the court for human rights violations, often of the most marginalised persons, or of political opponents of the ruling government.
The most immediate consequence of these withdrawals has been a drop in the number of cases submitted to the African Court. In 2024, only 15 new cases were submitted. There were 66 in 2019.
Why direct individual access matters
It’s not clear why South Africa has not (yet) accepted direct access to the court. But there are compelling reasons for it to do so.
First, allowing direct access from South African courts to the African Court would serve to complement domestic human rights protection by allowing for redress and reparations beyond the national level. This will be in line with the South African constitution. It will also be in line with the principle of subsidiarity, in terms of which recourse to the African Court will only be possible after all domestic remedies had been exhausted.
Second, bolstering the effectiveness of the court is an investment in African institutions, and will underscore South Africa’s full embrace of its African identity. And if it accepts the court’s direct access jurisdiction, it will become the AU member state with the largest population and economy to do so.
The right moment
The court protocol, which South Africa has ratified, requires that a declaration accepting direct individual access be made. The relevant provision (article 34(6)) stipulates that state parties to the court protocol are required to (“shall”) make such a declaration. What is left to the discretion of states is the timing. According to the protocol, these states “shall” do so “at the time of the ratification of this protocol or any time thereafter”.
There has never been a more opportune and important time for South Africa to make this declaration.
The African Court on Human and Peoples’ Rights risks being underused and receding into irrelevance. This is happening in a landscape increasingly inimical to rights and rights institutions. South Africa should signal to other states that it accepts independent judicial scrutiny of its human rights record as the logical end result of having helped create the African Court.
Frans Viljoen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
This article was originally published on The Conversation. Read the original article.
