Abstract

MURIMI, Edward Kahuthia. Fluctuating standards of proof at the African Court: a case for principled flexibility. AHRY [online]. 2023, vol.7, pp.158-182. ISSN 2663-323X.  http://dx.doi.org/10.29053/2523-1367/2023/v7a8.

This article focuses on the application of standards of proof in cases before the African Court on Human and Peoples' Rights, a relatively under-studied area. It argues that the Court applies fluctuating standards of proof depending on facts of each case and, while this phenomenon is not uncommon in international practices, it nonetheless has negative implications for human rights protection when this fluid application of standards of proof is not properly calibrated. The application of a high standard of proof in admissibility decisions, as the article argues, risks making the African Court less accessible. Similarly, the article contends that in merits and reparations decisions, a strict approach to evidence that entails application of a high standard of proof has led to inappropriate dismissal of what arguably are valid claims in some cases. To address these challenges, the article suggests that a flexible yet principled evidentiary approach to questions of standards of proof can guide the Court towards fairer and more consistent decisions.

Keywords : evidence; evidentiary practices; standard of proof; flexibility; African Court on Human and Peoples' Rights.

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