Given the relatively young age of international human rights (IHR) law, there is a dearth of comprehensive studies on the subject. Related to this, the evidentiary regime in IHR adjudication that covers an array of issues such as the burden of proof, standard of proof, admissibility of evidence, collection and submission of evidence as well as the assessment and scope of evidence are largely understudied. There is preoccupation with the substance of human rights norms at the expense of procedural matters by academics of IHR and this explains the limited literature on questions of evidence in IHR adjudication. It is therefore hardly surprising that the European Convention on Human Rights and the American Convention on Human Rights have no substantive provisions on evidence while the Protocol that establishes the African Court on Human and Peoples’ Rights (African Court) briefly captures the issue of evidence and in very broad and open-ended terms.
This study therefore proposes to make a contribution in the endeavour to fill this apparent gap in academic work in this area of IHR law through four aims, namely, (1) analysing, (2) unveiling, (3) strengthening and (4) critically assessing the evidence regime in adjudication of human rights at the African Court. The analysis will consist of a comprehensive doctrinal study, from a purely legal perspective, the evidentiary regime at the African Court. Unveiling will critically assess the political underpinnings and uses of the evidentiary regime at the African Court and particularly address the question of what the African Court does about the litigants’ ‘inequality of arms’ with regard to matters of evidence. Power dynamics will be deliberately read into the jurisprudence of the African Court as appropriate. The study hopes to strengthen the evidentiary regime at the Court by attempting to develop ‘best evidentiary practices’ in adjudication process at the African Court through specific recommendations. The last aim of the study will be to critically assess the relationship in the Court’s practice between facts, evidence and truth, and include power to this equation. As a result, the study will have pioneered a new strand in Critical Legal Studies.
See also https://hrc.ugent.be/research/dissect-evidence-in-international-human-rights-adjudication/ for a link to the DISSECT project, which is the overall framework of this research.