An assessment of the possibilities for impact litigation in Francophone African countries

Abstract

The advent of democratisation in Francophone Africa did not provide an enabling environment for the protection of human rights through impact litigation. Also referred to as strategic litigation or public interest litigation, impact litigation can be defined as ‘a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have a pecuniary interest or some interest by which their legal rights or liabilities are affected’. The article examines whether Francophone Africa’s political and legal contexts are conducive to impact litigation. It concludes that, in general, the political context characterised by a weak separation of powers due to presidentialism, the timidity of constitutional judges, as well as the variance and complexity of electoral jurisdictions, hinder the possibilities for impact litigation. The article concludes that the legal context characterised by the lack of human rights mandates for constitutional jurisdictions (except Benin), the control of standing in constitutional matters by institutions and authorities, the limited standing afforded to NGOs and members of the public (except in Benin and Côte d’Ivoire) and the complete exclusion of amici curiae, have also hindered the prospects for impact litigation. In the same vein, the subscription to a monism doctrine does not lead to the application of international law in domestic courts and the situation is aggravated by the lack of a culture of litigation.