GOVERNMENTS fund regional courts using taxpayers’ money to harmonise the dispensation of justice and ensure it transcends national boundaries to encompass regional jurisdiction. These supranational bodies serve as essential checks and balances against national courts, setting progressive standards that take a wider perspective.

By Telesphor Magobe

GOVERNMENTS fund regional courts using taxpayers’ money to harmonise the dispensation of justice and ensure it transcends national boundaries to encompass regional jurisdiction. These supranational bodies serve as essential checks and balances against national courts, setting progressive standards that take a wider perspective.

In Europe, this legal ecosystem thrives. The decisions of the European Court of Human Rights (ECtHR) are final and legally binding, functioning as a powerful appellate safety net for citizens across the continent.

Nowhere is this clearer than in the protection of media freedoms. When national courts have wrongfully sentenced journalists for refusing to reveal their sources, the ECtHR has consistently overturned those domestic rulings. The European court famously argues that forcing journalists to reveal confidential sources marks the literal end of investigative journalism.

Three seminal cases from different European countries illustrate this uncompromising stance on press freedom. In Goodwin v The United Kingdom (1996), the ECtHR delivered a landmark judgment, ruling that a fine imposed on a British journalist for safeguarding a corporate whistle-blower violated Article 10 of the European Convention.

In Roemen and Schmit v Luxembourg (2003), the court held that police searches targeting an investigative journalist’s home to unmask a source were entirely disproportionate.

In Voskuil v The Netherlands (2007), the ECtHR challenged the Dutch government for detaining a journalist for two weeks, affirming that state interests in plugging administrative leaks cannot override the public’s right to a protected press.

In Africa, things work differently. Sceptics argue that regional courts operate like cosmetic bodies, existing for diplomatic prestige rather than real-world legal accountability. Historically, however, African regional courts possessed genuine teeth.

During the post-independence era, the East African Community (EAC) utilised the Court of Appeal for Eastern Africa. It acted as a binding final appellate court for Kenya, Tanzania, and Uganda until the original EAC political bloc collapsed in 1977.

Today, Africa possesses highly progressive regional benches, including the East African Court of Justice (EACJ) and the African Court on Human and Peoples’ Rights (AfCHPR).

Legally, the decisions of both courts are fully binding on member states. Under Article 38 of the EAC Treaty, partner states are required to implement judgments without delay, while Article 30 of the AfCHPR Protocol stipulates that member states must comply with decisions in cases to which they are parties.

The core failure is not a lack of legal obligation, but the absence of centralised, political enforcement mechanisms to penalise non-compliance. Consequently, their rulings are routinely ignored by domestic executives, leading critics to dismiss them as structurally irrelevant.

While critics claim the EACJ has passed numerous judgments without a single decision being implemented, the reality is more nuanced. Compliance is abysmally low, but it is not entirely non-existent.

Three seminal EACJ decisions remain largely unimplemented. In the Media Council of Tanzania v AG of Tanzania (2019), the EACJ ruled that key criminal defamation, sedition, and false news provisions of Tanzania’s Media Services Act unjustifiably restricted freedom of expression and breached EAC Treaty principles of good governance. Although the government lost its subsequent appeal, comprehensive legislative overhauls remain stalled by extensive domestic bureaucratic delays.

In James Katabazi v AG of Uganda (2007), armed security agents invaded the High Court of Uganda to re-arrest 14 treason suspects who had been granted bail. The EACJ boldly intervened, ruling that while it lacked an explicit human rights protocol, it possessed full jurisdiction to adjudicate when state actions directly violated the fundamental treaty principles of the rule of law. Despite the ruling, it was largely ignored by the domestic executive.

In Democratic Party v AG of Uganda (2013), the EACJ held that Uganda’s ongoing delay in ratifying regional human rights protocols constituted a direct breach of its treaty-bound operational principles. The ruling established that member states cannot use slow domestic legislative workflows as an excuse to avoid regional integration obligations, though it triggered no immediate legislative remedy.

Conversely, rare instances of compliance do occur. In Anyang’ Nyong’o v AG of Kenya (2006), the EACJ declared Kenya's rules for electing members to the East African Legislative Assembly (EALA) invalid. Kenya complied and subsequently amended its parliamentary rules.

In Margaret Zziwa v Secretary General of the EAC (2014), the EACJ ruled that the impeachment of Margaret Zziwa as Speaker of the EALA violated the community's rules of procedure. Because the remedy involved financial damages paid directly out of the centralised EAC institutional budget—rather than a stubborn domestic treasury—the court-ordered compensation was successfully fulfilled.

The AfCHPR faces a similar compliance crisis, with state implementation rates historically below 20 per cent. Prominent examples of defiant non-implementation include: The Ogiek Case (ACHPR v Kenya, 2017), the AfCHPR ruled that Kenya violated the indigenous land rights of the Ogiek people in the Mau Forest. Years later, reparations remain stalled.

In APDH v Côte d’Ivoire (2016), Côte d'Ivoire was ordered to reform its Independent Electoral Commission to ensure impartiality, but superficial domestic adjustments failed to meet the court’s progressive standards.

In Sébastien Ajavon v Benin (2019), the country was ordered to annul a politically motivated conviction against an opposition figure. Benin rejected the decision entirely and subsequently withdrew the right of individual citizens to file cases directly with the AfCHPR.

Despite this grim landscape, progressive implementation has succeeded where domestic political transitions allowed for it. In Zongo v Burkina Faso (2014), following a change in national leadership, Burkina Faso fully complied with orders to compensate the family of assassinated journalist Norbert Zongo and reopen the criminal investigations.

What must be done to bridge the chasm between regional judgments and domestic defiance? Can African countries truly learn from the European experience? The answer lies in building political enforcement mechanisms. Data shows that in Europe, the ECtHR does not rely on goodwill; it relies on the Committee of Ministers—a political body of foreign ministers that monitors implementation and imposes diplomatic and financial sanctions on non-compliant states. This can inform the African Union (AU) Executive Council to change from being a passive observer to an active enforcement body, treating state defiance as a breach of treaty that triggers immediate economic penalties.

Furthermore, African nations must pass domestic legislation giving regional court rulings "direct effect." Currently, national courts treat regional rulings merely as persuasive authorities: helpful authorities that a domestic judge can ignore if they conflict with local statutes.

By harmonising national and regional court decisions, regional rulings would automatically become part of national legal frameworks. In this way, national judges will be legally compelled to treat EACJ and AfCHPR decisions as binding supreme precedent that supersedes and overrides conflicting local laws. Without these structural reforms, Africa’s regional courts will remain toothless lions—brilliant at roaring from afar, but powerless to protect citizens in their own backyards.The author is a Dar es Salaam-based lawyer. He can be reached at t22magobe@gmail.com