Evidence at the African court on human and peoples’ rights : the case for an equitable applicant-centred approach as a pathway to substantively fairer decisions

Evaluation of evidence is the fulcrum of the adjudicative function of the African Court on Human and Peoples’ Rights. However, there is an acute shortage of comprehensive research on how the Court assesses evidence to determine whether claims of human rights violations have been established or disproved. This study contributes to filling this research gap by systematically studying the evidentiary practices at the African Court to unveil not only its explicit and implicit application of evidence rules but also how its evidential approaches impact the substantive fairness of its decisions. It does this by critically analysing the evolution of the Court’s case law from 2013 to 2024 and this analysis is supplemented by review of relevant literature and fieldwork data from interviews with judges and registry members of the Court. Based on this, the study’s main proposition is that the African Court is gradually abandoning its initial preference for a flexible, applicant-centred approach in favour of an equal balancing of applicants’ and States’ interests in its consideration of evidence. The negative consequences of the increasing dominance of the latter approach include a less accessible African Court, more decisions that are substantively unfair as a result of the Court’s formalistic attempt at neutrality while considering evidence, and inconsistencies in the case law. To address these negative developments, the study proposes a return to and consistent application of an equitable applicant-centred approach to evidence. The justification for the suggested approach is in its responsiveness to the evidentiary difficulties faced by most individual applicants and unique socio-legal realities in Africa that hinder presentation of required evidence. Not prescriptive in their details, the study recommends four pillars that could anchor an equitable applicant-centred evidentiary approach: (1) communication of applicable evidence standards to litigants, (2) a more proactive fact-finding role by the Court, (3) flexibility regarding acceptable forms of evidence and (4) reliance on presumptions of fact and the taking of judicial notice of certain facts in some specific circumstances.