Fashioning rights in the African Court on Human and Peoples’ Rights:Understanding the proceduralisation of substantive rights

In the contemporary practice of international human rights adjudication, it is increasingly recognised that almost every substantive right implies a positive action of establishing effective procedures to ensure its enforcement. In intensifying their scrutiny of domestic procedures designed to ensure respect for human rights treaty provisions in the national order, regional human rights courts have developed a practice of adding a procedural obligation to national authorities to strengthen the internal protection of substantive rights. While such a practice remains unnamed in human rights law jurisprudence, scholars have described it as the ‘proceduralisation’ of substantive rights. In essence, the proceduralisation of substantive rights, as an offshoot of judicial activism, seeks to ensure the concretisation of rights by both widening the scope of obligations and strengthening the requirement for their protection. While this issue has been topical in scholarship relating to the European Court of Human Rights, there is no systematic analysis of how proceduralisation has so far helped the African Court on Human and Peoples’ Rights to fashion the trajectory of substantive rights in widening the scope of obligations and deepening the requirement of their protection. This article intends to fill that gap.