Retrial Legitimacy and Evidentiary Review under the African Charter:  A Doctrinal Critique of Rule 78 and Article 28(3) 

Abstract 

This article critically examines the legitimacy of retrials under the African human rights system,  focusing on procedural recognition, evidentiary standards, and judicial discretion. It analyzes  Article 28(3) of the Protocol establishing the African Court on Human and Peoples’ Rights and  Rule 78 of the Court’s Rules of Procedure, highlighting the Court’s consistent enforcement of  procedural thresholds while noting the absence of substantive criteria for assessing new evidence.  Through case studies, including Mkandawire v. Malawi and Chrysanthe v. Republic of Rwanda,  the article demonstrates how this gap affects predictability, fairness, and public confidence. It  concludes by proposing a structured framework for evaluating new evidence, emphasizing  unavailability, materiality, and credibility, to enhance retrial legitimacy and judicial consistency. 

Keywords 

New evidence, Judicial discretion, Procedural fairness, African Charter on Human and Peoples’  Rights. 

Abbreviations 

• ACHPR – African Charter on Human and Peoples’ Rights 
• ACP – African Court on Human and Peoples’ Rights Protocol 
• ICJ – International Court of Justice

Introduction 

Retrials play a critical role in safeguarding justice by allowing courts to revisit decisions in light  of new evidence, offering a mechanism to correct wrongful convictions and ensure that legal  outcomes reflect truth and fairness. However, retrials also challenge the principle of finality,  raising concerns about legal certainty, judicial efficiency, and the stability of judgments.1 Within  the African human rights system, this tension is reflected in the procedural recognition of retrials  under Article 28(3) of the Protocol establishing the African Court on Human and Peoples’ Rights  and Rule 78 of the Court’s Rules of Procedure, which permit the Court to review its judgments  when new evidence emerges but do not articulate substantive criteria for evaluating the quality,  credibility, or impact of such evidence.2 This article examines how the African Court has applied  Rule 78 and Article 28(3) in practice, focusing on key cases to assess whether its reasoning is  doctrinally sound, and argues that while procedural thresholds are consistently enforced, the  absence of substantive standards, including materiality, credibility, and decisiveness, undermines  retrial legitimacy, predictability, and judicial consistency. 

• Procedural Recognition of Retrials in the African System 

The African Charter on Human and Peoples’ Rights guarantees essential fair trial rights under  Article 7, including the presumption of innocence, the right to defense, the right to appeal, and  protection against double jeopardy, yet the Charter does not explicitly address retrials or post conviction review.3 The Protocol establishing the African Court fills this gap procedurally, as  Article 28(3) authorizes the Court to review its judgments in light of new evidence, while Rule 78 of the Rules of Procedure sets conditions for admissibility, specifying that the evidence must have  been unknown to the applicant at the time of judgment and that the request must be filed within  six months of discovering the evidence. These provisions establish a procedural gateway for  retrials but do not define what qualifies as new evidence in substantive terms, offering no guidance  on how judges should assess reliability, relevance, or potential impact. This lack of clarity leaves  judicial discretion unconstrained, applicants uncertain about the evidentiary bar required to justify  a retrial, and raises practical concerns for counsel regarding evidence collection, verification, and  timing. 

• Judicial Discretion and Its Implications 

Judges of the African Court exercise broad discretion in interpreting Rule 78 and Article 28(3),  which can create both flexibility and unpredictability. On one hand, judicial discretion allows the  Court to accommodate unique circumstances, including cases where evidence emerges late due to  external constraints or deliberate suppression. On the other hand, the absence of clear substantive  standards for evaluating new evidence means that different judges may apply inconsistent  reasoning across similar cases, leaving applicants and states uncertain about how their submissions  will be treated.4 This variability can undermine public confidence, affect fairness, and lead to  strategic uncertainty for litigants who may not know what type of evidence is likely to succeed in  justifying a retrial 

Case Study: Mkandawire v. Malawi 

One of the earliest cases to test the Court’s retrial mechanism was Mkandawire v. Malawi,  Application No. 003/2011, in which the applicant submitted a request for review under Rule 67 (Rule 78 under the revised Rules of Court) after the Court delivered its judgment in 2013, arguing  that certain exhibits had been overlooked and that the judgment misapplied Article 7 of the  Charter.5 The Court acknowledged the procedural validity of the request, confirming that it hadn’t been filed within the six-month window and that the evidence was previously unknown, but the Court’s reasoning focused almost entirely on procedural compliance and did not engage with the  substantive value of the new evidence, specifically whether it was credible, material, or capable of  altering the outcome.6 The absence of a structured test for evaluating evidentiary impact left the  decision vulnerable to discretionary drift, demonstrating that while the Court correctly applied  procedural filters, its failure to articulate substantive standards revealed a doctrinal gap that  continues to affect retrial legitimacy, predictability, and fairness in subsequent applications. 

Case Study: Chrysanthe v. Republic of Rwanda 

A similar pattern emerged in Chrysanthe v. Republic of Rwanda, Application No. 022/2015, where  the applicant sought review of the Court’s earlier decision, citing procedural errors and overlooked  facts.7 The Court dismissed the request, citing failure to meet procedural thresholds, specifically  the six-month deadline and the novelty requirement, and while the strict enforcement of procedural  conditions demonstrated consistency, the Court did not assess whether the evidence, had it been  admissible, would have materially affected the judgment, nor did it clarify what would count as  decisive or credible evidence in future cases. This omission highlights the Court’s reluctance to  develop substantive standards for evaluating new evidence, leaving applicants and states uncertain  about the criteria that govern retrial legitimacy, which may affect strategic litigation and overall  trust in the judicial process. 

III. Patterns and Gaps in Judicial Reasoning 

Across these cases, a clear pattern emerges in which the African Court consistently enforces  procedural thresholds, such as filing deadlines and novelty requirements, with rigor and clarity,  but rarely articulates substantive criteria for evaluating the quality or impact of new evidence.8 Judicial reasoning tends to focus on admissibility rather than evidentiary weight, and decisions  often lack transparency regarding the standards used to assess whether retrials are justified.9 This  doctrinal vacuum creates risks of inconsistency, unpredictability, and diminished public confidence in the review process, while also limiting the ability of counsel to advise clients on the  likelihood of success, thereby affecting strategic decision-making and access to justice.10 

• Toward Substantive Standards for New Evidence 

To strengthen retrial legitimacy, the African Court should adopt a doctrinal framework for  evaluating new evidence, moving beyond procedural recognition and providing judges with  principled tools for assessing whether evidence merits reopening a case. Three core criteria should  guide this assessment: the evidence must have been unknown and not reasonably discoverable at  the time of the original judgment, it must be material and capable of altering the outcome rather  than merely reinforcing existing findings, and it must be credible and persuasive, with sufficient  probative value to justify reconsideration.11Additionally, practical guidance should clarify that  evidence like newly obtained expert reports, documents revealing procedural errors, or key witness  statements may meet the materiality threshold if they could alter the judgment.12 Judicial discretion  should be exercised within these boundaries, and decisions should include written reasons  explaining how the evidence meets or fails to meet these standards.13 Codifying these criteria  through practice directions or strategic guidance would enhance consistency, promote  predictability, and align the Court’s approach with contextual flexibility, thereby improving both  procedural fairness and substantive legitimacy. 

Conclusion 

The African Court’s procedural recognition of retrials under Rule 78 and Article 28(3) represents  an important step toward safeguarding justice, yet its jurisprudence reveals a doctrinal gap in which  procedural thresholds are consistently enforced but substantive criteria for evaluating new  evidence remain undefined. This limits the Court’s ability to balance fairness and finality,  undermines the predictability of its review process, and leaves applicants and states uncertain  about how evidence will be assessed. By adopting a structured framework for assessing  unavailability, materiality, and credibility, and by clarifying practical examples of what constitutes  material evidence, the Court can move beyond procedural recognition toward substantive  legitimacy, reinforcing public confidence in the justice system, improving strategic clarity for  litigants, and ensuring that retrials serve their intended purpose of correcting injustice without  compromising legal certainty. 

Bibliography 

Journal Articles and scholarly papers  

• Henok Gabisa, “The African Court on Human and Peoples’ Rights and the Principle of  Legal Certainty,” 61 Journal of African Law 21 (2017). 
• Edward Kahuthia Murimi, Fluctuating Standards of Proof at the African Court: A Case for  Principled Flexibility, 7 Afr. Hum. Rts. Yearb. 175, 176–78 (2023). 
• C. Theophilopoulos & A. Bellengere, Relevance, Admissibility and Probative Value in a  Rational System of Evidence: A South African Perspective, 25 Potchefstroom Elec. L.J. 1  (2022). 
• Fairbridges Wertheim Becker, Rule 53 and the Record of Decision: Ensuring  Accountability in Administrative Review, Fairbridges Legal Insights (2022),  https://www.fwbattorneys.co.za/legal-insights/rule-53-review. 
• Lawmara Legal, Judicial Discretion and Evidentiary Standards: A Doctrinal Overview,  Lawmara Legal Commentary (2023), https://www.lawmara.org/commentary/judicial discretion-evidence. 

Books

• FIDH, Admissibility of Complaints before the African Court: Practical Guide 24–26 (June  2016). 

Statutes and Codes 

• African Court on Human and Peoples’ Rights, Rules of Court, Rule 78 (2020),  https://www.african-court.org/wpafc/wp-content/uploads/2021/04/Rules-Final-Revised adopted-Rules-eng-April-2021.pdf. 
• African Court on Human and Peoples’ Rights. Rules of Court. 2010. 

Case Law 

• Mkandawire v. Republic of Malawi (Application No. 003/2011) [2013] AfCHPR 38 (21  June 2013) para. 17, https://africanlii.org/akn/aa-au/judgment/afchpr/2013/38/eng@2013- 06-21. 
• Mkandawire v. Malawi, Application No. 003/2011, African Court on Human and Peoples’  Rights. 
• Chrysanthe v. Republic of Rwanda, Application No. 022/2015, African Court on Human  and Peoples’ Rights. 

Treaties and international protocols 

• Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an  African Court on Human and Peoples’ Rights, art. 28(3), June 9, 1998, OAU Doc.  OAU/LEG/EXP/AFCHPR/PROT (III), African Charter on Human and Peoples’ Rights  (Banjul Charter), art. 7, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). 
• African Court on Human and Peoples’ Rights. Protocol Establishing the African Court on  Human and Peoples’ Rights, 1998. 

Online Sources and Reports 

• Reconsidering Final Judgments: Injustice in the Pursuit of Justice, De Rebus (May 1,  2015), https://www.derebus.org.za/reconsidering-final-judgments-injustice-justice/.
• Edward Kahuthia Murimi & Marie-Bénédicte Dembour, The Role and Use of Evidence at  the African Court on Human and Peoples’ Rights (2021–2024) (2024),  https://dissectevidence.wordpress.com/.

1 Reconsidering Final Judgments: Injustice in the Pursuit of Justice, De Rebus (May 1, 2015),  https://www.derebus.org.za/reconsidering-final-judgments-injustice-justice/ 

2 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on  Human and Peoples’ Rights, art. 28(3), June 9, 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III),  https://www.african-court.org/wpafc/wp-content/uploads/2020/10/2-PROTOCOL-TO-THE-AFRICAN-CHARTER ON-HUMAN-AND-PEOPLES-RIGHTS-ON-THE-ESTABLISHMENT-OF-AN-AFRICAN-COURT-ON HUMAN-AND-PEOPLES-RIGHTS.pdf; African Court on Human and Peoples’ Rights, Rules of Court, Rule 78  (2020), https://www.african-court.org/wpafc/wp-content/uploads/2021/04/Rules-Final-Revised-adopted-Rules-eng April-2021.pdf 

3 African Charter on Human and Peoples’ Rights (Banjul Charter), art. 7, OAU Doc. CAB/LEG/67/3 rev. 5, 21  I.L.M. 58 (1982).

4 Henok Gabisa, “The African Court on Human and Peoples’ Rights and the Principle of Legal Certainty,” 61  Journal of African Law 21 (2017) 

5 Mkandawire v. Republic of Malawi (Application No. 003/2011) [2013] AfCHPR 38 (21 June 2013) para. 17,  https://africanlii.org/akn/aa-au/judgment/afchpr/2013/38/eng@2013-06-21.

6Id, Para. 40. 

7 Chrysanthe v. Republic of Rwanda (Application No. 022/2015) [2018] AfCHPR 8 (11 May 2018),  https://ulii.org/akn/aa-au/judgment/afchpr/2018/8/eng@2018-05-11. 

8 FIDH, Admissibility of Complaints before the African Court: Practical Guide 24–26 (June 2016).

9 Edward Kahuthia Murimi, Fluctuating Standards of Proof at the African Court: A Case for Principled Flexibility,  7 Afr. Hum. Rts. Yearb. 175, 176–78 (2023).

10 Edward Kahuthia Murimi & Marie-Bénédicte Dembour, The Role and Use of Evidence at the African Court on  Human and Peoples’ Rights (2021–2024) (2024), https://dissectevidence.wordpress.com/. 

11 C. Theophilopoulos & A. Bellengere, Relevance, Admissibility and Probative Value in a Rational System of  Evidence: A South African Perspective, 25 Potchefstroom Elec. L.J. 1 (2022). 

12 Thino Bekker, The Role of Expert Evidence in Civil Matters: A Critical Analysis (Part 2), 49 J. Jurid. Sci. (2024). 

13 East African Court of Justice, Manual on the Functioning of the Court 12 (2020); Fairbridges Wertheim Becker,  Rule 53 and the Record of Decision: Ensuring Accountability in Administrative Review, Fairbridges Legal Insights (2022), https://www.fwbattorneys.co.za/legal-insights/rule-53-review; Lawmara Legal, Judicial Discretion and  Evidentiary Standards: A Doctrinal Overview, Lawmara Legal Commentary (2023),  https://www.lawmara.org/commentary/judicial-discretion-evidence.