Only Rwanda indicated in its letter of withdrawal the reasons for its decision:
In good faith Rwanda unilaterally and voluntarily accepted to allow NGOs’ and individuals to lodge cases before the Court. It was later realized that the Declaration, as it is currently framed, was being exploited and used contrary to the intention behind its making. Specifically, convicted genocide fugitives secured a right to be heard by the Honourable Court, ultimately gaining a platform for re-invention and sanitization, in the guise of defending human rights of the Rwandan people”. (Clarification, Ministry of justice of the Republic of Rwanda)
Beyond the official withdrawal notice, the Tanzanian government has not made any additional statements clarifying or justifying its decision. Some have implied the withdrawal could be connected to the Court’s many judgments against Tanzania over the years, around 65% of the cases of the Court. The Spokesperson for the Government of Benin, for his part, referred to the Court’s decision to give priority to individual interests over the collective interest: under the pretext of protecting the interests of one applicant, the ACtHPR wished to jeopardise the interests of an entire nation and the duties of a government that wanted to organise its elections at the right time (translation). Côte d’Ivoire used the same arguments, even accusing the Court of “undermining the foundations of the rule of law”.
In my view, there is no doubt that these criticisms, whether well-founded or not, should not lead to the extreme solution of withdrawing jurisdiction from the Court. Applying a text necessarily implies an interpretation on the part of the legal operator. And that interpretation itself implies a sovereign assessment by the judge not only of the letter and spirit of the text but also of the facts. By accepting the competence of the judge, States agree to comply with the judge’s application/interpretation, in other words, with the choices that the judge will necessarily have to make. The integrity of the judicial function would be greatly compromised if the judge had to live with the haunting of a sword of Damocles, in the form of a backlash, if the interpretation/application of the legal rule did not suit the litigant.
To say this, however, does not mean that the judge can give free rein to his/her interpretative imagination with impunity. Saying that the judge should not engage in politics does not mean that the judge office 365 database should not have a jurisprudential policy. He/She cannot ignore the significance of his/her decisions and must no doubt be attentive to the reactions that these decisions provoke in the community in which he/she operates: the judge must know how far it can go without going too far. Any court must thus ensure, through the rigour of its reasoning and the strength of its motivations, that it establishes at least the plausibility of its interpretation, failing to succeed in convincing that it was the only possible one.
Admittedly, the practice of the African Court has encountered serious issues and has raised many reservations and criticisms from commentators. It is impossible to list here the many criticisms levelled at the Court. I had already expressed concern many years ago about the perceived lack of rigour in the reasoning of the ACtHPR judgments. States could legitimately be frustrated by the laconism of the Court’s replies to some of their arguments, in particular on questions of jurisdiction and admissibility (see, for example, the Court’s most recent Order). The impression sometimes is of a Court so concerned with the protection of human rights that it does not hesitate to bypass possible procedural obstacles to provide a remedy to all citizens of a country (See judgment of 14 June 2013). The iterative opinions of Judge Fatsah Ouguergouz, attached to virtually all the Court’s judgments when he was sitting on the bench, have shown the concern of some judges within the ACtHPR for the lack of rigour of the Court on procedural issues.