Competing Incentives and Formal Independence: Explaining Decision-Making of the African Court of Human and Peoples’ Rights

In 2006, the African Court of Human and Peoples’ Rights (AfCHPR) became the world’s third operational international court dedicated to the protection of human rights. Like other international courts (ICs), the AfCHPR’s faces competing incentives in decision-making. At the same time, the AfCHPR is designed with a number of important institutional safeguards that might help to mediate these competing incentives. How has the AfCHPR adapted to its competing incentives, and what role do these institutional safeguards serve for the Court? More specifically, does formal judicial independence affect how the court adapts to its competing incentives and thus makes decisions? This paper seeks to gain traction on these questions. This paper argues that the degree to which judicial activism is used by an IC corresponds to the strength of the institutional safeguards preserving its independence. These safeguards, however, do not necessarily produce judicial activism, but rather increase the willingness of a court to demonstrate activist decision-making in its judicial outcomes, methods of treaty interpretation and decisions on remedies. At the same time, even with robust safeguards to independence in place, persuasive argumentation through citation of international jurisprudence and constituency mobilization provide additional protection to ICs that take activist decisions. Overall, these dynamics help to explain how the African Court is able to balance in favor of protecting human rights in the face of countervailing political constraints.