On March 29, a private Tunisian radio station published a statement by the Ministry of Foreign Affairs, Migration, and Tunisians Abroad confirming the news that Tunisia had withdrawn its declaration accepting the competence of the African Court on Human and Peoples’ Rights (hereinafter “the African Court”) to receive petitions from individuals and NGOs.

The ministry justified this withdrawal on the basis of the large number of politically motivated cases filed against Tunisia before the African Court to undermine the prestige and reputation of the state and its institutions and discredit its judiciary. Tunisia’s declaration accepting the court’s jurisdiction in 2017, the statement said, stemmed from its belief in the court’s role in promoting human and peoples’ rights. However, Tunisia has realized – like other African states before it – that this litigation has transformed into a means of dragging it into foreign states’ domestic politics, which conflicts with its consistent stance of positive neutrality and nonintervention in domestic affairs. The statement added that the withdrawal of recognition of this jurisdiction is also based on the principle of national sovereignty and Tunisia’s categorical rejection of interference in its own domestic affairs, whatever the parties or justifications may be.

This statement came after widespread condemnation of this setback from human rights organizations. The news was unsurprising to people following the African Court’s decisions, as it was the first judicial body to embarrass the Tunisian state after the anti-constitutional coup on 25 July 2021. In September 2022, the court found Presidential Order no. 117 and decrees no. 69, 80, and 109 to be invalid because they breached the people’s right to administer their public affairs. In September 2023, it called on the Tunisian state to take temporary measures to ensure the fundamental rights and physical safety of a number of political prisoners. Finally, in October 2024, the court demanded the reversal of the collective dismissal of 57 judges, deeming it a grave impingement on judicial independence and fair trial guarantees.

Tunisia Retreats From Its African Commitments: What Is the Withdrawn Declaration?

Before discussing the withdrawal of jurisdiction, we must first consider the matter of the declaration accepting the African Court’s jurisdiction. Under Paragraph 3 of Article 5 and Paragraph 6 of Article 34 of the Protocol to the African Charter on Human And Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter “the Protocol”), state parties can submit a declaration allowing individuals and NGOs with observer status before the African Commission on Human and Peoples’ Rights (ACHPR) to access the court. In other words, the ability to appear before the court is not available to everyone. Rather, it is conditional on the state’s will to submit a declaration accepting the “competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration”. Hence, accepting the court’s personal jurisdiction is a discretionary act whereby the state commits to its compulsory jurisdiction and grants it, by unilateral will, the competence to examine disputes brought before it pertaining to human rights violations. By submitting this explicit acceptance of the court’s jurisdiction, the state concerned becomes internationally responsible before the African and international courts and agrees to the potential internationalization of human rights protection.

Establishing personal jurisdiction through the submission of such a declaration is not a novel concept in regional courts. The Protocol drew the idea from Paragraph 2 of Article 36 of the Statute of the International Court of Justice, which made the court’s jurisdiction over disputes between states contingent on their submission of declarations recognizing it. However, the European system later rescinded this condition in 1994. Nevertheless, the African system kept individuals and organizations’ access to the African Court contingent on states’ prior agreement. This restriction has impaired access to the court for individuals and NGOs in Africa, especially as the countries of the continent are generally governed by dictatorial regimes that fear rulings convicting them by a regional court. 

Withholding the declaration constitutes the most effective means of preventing access to the court amidst human rights violations. Of the African Union’s 55 member states, only 34 ratified the Protocol, and only 12 submitted the declaration stipulated in Paragraph 6 of Article 34, thereby expressing their acceptance of this jurisdiction. Those states are Burkina Faso, Malawi, Mali, Tanzania, Ghana, Côte d’Ivoire, Rwanda, Benin, Guinea-Bissau, Tunisia, The Gambia, and Niger. Five states – the most recent being Tunisia – have withdrawn the declaration,[1] bringing the number that recognize the court’s personal jurisdiction down to seven. States’ withdrawal of their declarations can generally be explained by the large number of cases brought against them by individuals and NGOs. The state that hosts the court – namely Tanzania – withdrew its declaration in 2019.

Tunisia’s Retreat From Its International Commitments: What Is the Political Background?

In 2017, Tunisia took a historic step in promoting human rights and African justice by submitting a declaration accepting the African Court’s personal jurisdiction. Thus, Tunisia became one of the few African countries to allow direct access to the court, which reflected its commitment to democratic transition and respecting human rights. It was an important gain that lasted no more than eight years, being rescinded with the stroke of a pen in March 2025. However, the declaration’s withdrawal does not prevent us from examining the numbers and the political background that destroyed this gain for African human rights. Currently, Tunisia is the fifth most litigated against state before the African Court, accounting for 7% of all cases. It follows Mali, Côte d’Ivoire, Benin, and Tanzania – countries which, except for Mali, have all withdrawn their declarations accepting the court’s personal jurisdiction. To date, the court has received 24 cases against the Tunisian state, all except two filed by Tunisian citizens.[2]

Since 25 July 2021, Tunisian litigants have resorted to the African Court remarkably proactively, with 70% of the cases against Tunisia having been filed after that date. These recent cases also differ from the older cases in subject matter. Previously, the cases were individual in nature. For example, the court examined deprivation of the right to defense and a fair trial in a case of illicit intercourse,[3] violation of the right to litigate and equality before the law in a case of fraud by a public official,[4] and violation of economic rights in a labor case.[5] The cases filed after 25 July 2021, on the other hand, have been distinctly political. Lawyer Brahim Belgeith unleashed this dynamic by seeking condemnation of the breach of the people’s right to self-determination and to participate in the administration of the nation’s affairs by the “exceptional measures”. He then contested Decree no. 11 of 2022, which replaced the Supreme Judicial Council with a temporary, appointed council. Many MPs and politicians also filed cases against the dissolution of Parliament and cases concerning Decree no. 54 of 2022 (on combating fake news) and Decree no. 55 of 2022 (on amending the electoral law). Likewise, relatives of political prisoners sought – in addition to demanding their release – interim measures enabling the latter to access lawyers and doctors of their choosing and an explanation of the legal grounds and alleged facts that warranted their detention.

Since 2022, the African Court has not hesitated to deliver justice to many applicants, issuing historic rulings in a political period during which the authority first immunized its “exceptional measures” against any challenge and then undermined the judicial authority itself. In fact, the African Court is the first judicial body to issue an interpretation of the “special measures”, ruling that presidential decrees no. 117, 69, and 100 – which were adopted under the “state of exception” – must be abolished. The court found that these decrees violate Article 13 of the African Charter on Human and Peoples’ Rights, which guarantees citizens’ right to participate freely in the government of their countries. The court also ordered Tunisia to, within two years, return to the constitutional order and establish an independent constitutional court. In 2024, the court reiterated this stance and also ordered Tunisia to abolish Decree no. 11 of 2022, which dissolved the Supreme Judicial Council, and to reconstitute this council within six months. In August 2023, the court ordered that urgent measures be taken to ensure that detainees can access medical care and legal counsel, contact their families, and know the full legal grounds for their incarceration, in light of concerns about their health and due process rights. In October 2024, the court ordered the suspension of Decree no. 35 of 2022, which allowed the president to dismiss judges arbitrarily, and the presidential decree that dismissed 57 judges from their positions. These decrees, the court found, threaten the independence of the judiciary and judges. Besides constituting judicial victories for the applicants, the court’s rulings during recent years have placed international moral pressure on the current authority. Hence, the withdrawal of the declaration accepting its jurisdiction was a logical and expected move.

Withdrawing the Declaration Accepting Jurisdiction: A Means of Escaping Accountability, But…

For years, the requirement that a declaration be submitted in order for the African Court’s personal jurisdiction to be recognized, as well as the ability to withdraw such a declaration, has raised questions about whether the Protocol’s enshrinement of access to the court is effective, especially given the small number of states that have joined it. The withdrawal of the declaration by respondent states following the issuance of rulings against them confirms that this requirement can represent a means to impunity in cases of human rights violations. The issue that countries can withdraw their declarations, the conditions governing such withdrawal, and the legal effects of it have been raised before the court. In its decision on Goh Taudier and Others v. Republic of Côte d’Ivoire, the court found that its personal jurisdiction still stood even though the respondent state submitted a declaration withdrawal on 29 April 2020.[6] The decision emphasized that “the withdrawal of the Declaration has no retroactive effect and has no bearing on cases pending at the time of filing the instrument of withdrawal or on new cases filed before the withdrawal took effect, in the instant case, on 30 April 2021. The present Applications, having been submitted before the Respondent State filed the instrument of withdrawal on 23 April 2019, are not affected”.

The same goes for the decision issued on 3 June 2016. In it, the court defined a balance between the state’s right to withdraw its declaration and the need to ensure legal stability for the other parties, deeming that sudden withdrawal without prior notification weakens the system of protection stipulated in the African Charter of Human and Peoples’ Rights. It found that according to Paragraph 6 of Article 34 , prior notification of withdrawal is obligatory, thereby limiting states’ freedom with respect to its compulsory legal jurisdiction.

In this regard, the court imposed the condition of at least one year of notice before the withdrawal takes effect. It found that withdrawal does not impact cases filed before the date that it takes effect and that Rwanda’s withdrawal would not come into effect until a year after the date of notice, i.e. on 1 March 2017. Moreover, based on the principle of nonretroactivity, the court retained its jurisdiction over applications submitted before that date. Hence, although withdrawing the declaration is a unilateral act, it is not absolute. States are obligated to submit prior notice before the withdrawal can come into effect because the declaration creates rights for individuals and groups.

Therefore, individuals and NGOs with observer status before the ACHPR can resort directly to the African Court until March 2026. After this date, Tunisians can still access the court indirectly by having their cases referred to it by the ACHPR under Paragraph 1 of Article 5 of the Protocol.

This article is an edited translation from Arabic.

[1] Rwanda, Tanzania, Côte d’Ivoire, and Benin.

[2] The first was filed by Baghdadi Mahmudi in 2012 after he was surrendered to the Libyan authorities. The court refused to examine the case because Tunisia had not submitted the declaration allowing individuals and NGOs to litigate before it (this would occur in 2017). The second does not concern Tunisia specifically as it was filed by a Guinean citizen against the states that voted to accept the renewal of Morocco’s African Union membership, given its “occupation” of Western Sahara.

[3] Application 061/2019 – Elyssa v. Republic of Tunisia.

[4] Application 008/2019 – Brahim Ayed v. Republic of Tunisia.

[5] Application 005/2021 – Ahmad Ben Mohamed Ben Brahim Belgheith v. Republic of Tunisia.

[6] Application 017/2019 – Goh Taudier and Others v. Republic of Côte d’Ivoire, p. 6.