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The permissibility and application of derogation from human rights obligations in the African human rights system are far from clear. Based on the absence of a derogation clause in the African Charter on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights has interpreted the Charter as prohibiting derogation even in emergency situations. However, this interpretation is inconsistent with the Commission’s practice of reviewing states of emergency during state reporting and creates confusion when considered together with the Commission’s conflation of derogation and limitation as well as its references to non-derogable rights. The African Court on Human and Peoples’ Rights is yet to pronounce itself on this question. Although Mali invoked a force majeure defence in APDF and IHRDA v Republic of Mali, the Court dismissed the defence without elaborating on its reasoning. As such, the article contends that the Court missed an opportunity to develop its jurisprudence on derogation.

A missed opportunity? Derogation and the African Court case of APDF and IHRDA v Mali