Abstract

FOMBA, Joris Joël Tala. The notion of fairness in reparation litigation before the African Court on Human and Peoples' Rights. AHRY [online]. 2023, vol.7, pp.52-69. ISSN 2663-323X.  http://dx.doi.org/10.29053/2523-1367/2023/v7a3.

Reparation is a general principle of law that applies both in the domestic and international order. The African Court on Human and Peoples' Rights (African Court) is no exception. In its jurisprudence it strives to rule on reparation on the basis of fairness. It is true that some provisions of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (African Court Protocol) as well as the Rules of Court do not expressly define what is meant by fairness. The Court's exercise of its office reveals a case-by-case approach to the application of the principle of fairness. This construction is characterised by not only the humanisation, socialisation but also the moralisation of African law. In applying their discretionary power, the judges of the Court face a dilemma between the requirements of law and social order. The question that arises is what criteria the Court uses to evaluate the notion of fairness in the context of reparation litigation. In other words, do these criteria allow for an objective reparation of the applicants' damage? This article deals with the Court's case law, which takes into account an essential aspect of justice, namely, corrective justice, which aims to remedy the imbalance in the assessment of reparation when the notion of fairness dictates its solutions in African positive human rights law. Based on a global approach, the concept of fairness therefore enables the Court to ensure arithmetical equality and the proportionality of gains and losses without regard to individuals. Although the Court's case law strives to do this, certain shortcomings persist and hinder the Court's mission of fairness.

Keywords : fairness; reparation; compensation; African Court on Human and Peoples' Rights; fair trial.

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