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a. Using suitable examples critically analyse the extent to which the Assembly of the Heads of State and Government may supervise the activities of the African Commission under article 59 of African Charter on Human and Peoples Rights. b. Using appropriate case law, characterize the African Commission’s interpretive approach. To what extent does it rely on the jurisprudence of other regional systems and to what extent is its jurisprudence autochthonous? c. In your view, what are the most useful features of the African human rights system? How do the elements you have identified address the specific situation of human rights in Africa?
Netherlands Quarterly of Human Rights, 1993
This contribution discusses how to improve the African system of human and peoples' rights on the basis both of the practice of the African Commission and of a revision of the African Charter in the light of the practice and experience of other regional human rights conventions and bodies. 1 Particular emphasis is put on improvements in the procedure of communications. Furthermore, the role of the African Commission with regard to the move towards democracy and human rights in Africa and the relationship between the Commission and the OAD will be analyzed, and a number of proposals on strengthening the African Charter and the African Commission will be made.' In presenting the actual situation of the African Commission particular attention is given to the results of the 11th and 12th sessions (March and October 1992 respectively) of the African Commission which in respect to some concerns were breaking new ground.' I The African Commission After Five Years The African Charter on Human and Peoples' Rights, adopted by the OAD Assembly of Heads of State and Government in Nairobi in 1981, provides for an ll-member Commission of'African personalities of highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples' rights'. 4 The African Commission, by November 1992, had had five years of existence." This provides an opportunity for introducing its main activities and for a critical look at its achievements and problems" in order to develop some propositions on how to make the African system of human rights more effective. The African Commission on Human and Peoples' Rights is still struggling with some shortcomings which make it difficult for the Commission to make progress. Certain limitations call for a revision of the African Charter. In view of the attention paid to ... Associate Professor of international law, University of Graz, Austria. The author has served the Commission as a consultant during 1990-91 and attended all sessions of the African Commission since its 8th session. 1 Some of the findings contained in this article are preliminary results of a research project on the African Human Rights System in a Comparative Perspective undertaken at the Institute of International Law and International Relations of the University of Graz by the author. 2 This text is partly based on a contribution to the
The African Commission on Human and Peoples’ Rights was set up pursuant to the coming into force of the African Charter on Human and Peoples Rights, saddled with the responsibilities of promoting and enforcing the rights of the African people and further checkmating human rights breaches amongst its member states. This paper will contend that the commission while performing its duties is faced with numerous challenges and setbacks which tend to dissuade it, and which have in fact, hindered the effective actualization of the intendments of the African Charter and the expectations of the African people. A further detailed juxtaposition of the African system with its international counterpart is done which would serve as a benchmark in evaluating the achievements of the African Commission while enforcing human rights in the region in line with international standard and best practice.
Foster Tawiah, 2021
This paper presents an assessment of the main provisions, strength and weakness of the African Charter on Human and Peoples' Rights 1.0.Introduction The African Charter on Human and Peoples' Rights, also known as 'Banjul Charter', is a regional human rights instrument which was opened for endorsement by the members of the Organization of African Unity (OAU) in 1981, and subsequently laid the foundation for African legal systems. It came into force on 21 October 1986 after a simple majority of the members of the organisation had deposited instruments of ratification. It is clear that whilst striving to reflect an African conception of human rights the drafters recognized that it would not be prudent to deviate too much from universal norms of human rights already contained in other international human rights instruments. Therefore, it is argued that the ratification of the Charter by the African states was influenced, to a great extent, by the inherent obligation of member states of the United Nations (UN) to adhere to the provisions contained in the UN Charter and the 1948 Universal Declaration of Human Rights (UDHR) of the UN, as well as the UN Covenants of 1966, namely the Covenant on Civil and Political Rights and Covenant on Economic, Social and Cultural Rights. However, it should be noted that the existence of such international human rights declarations and covenants was not the sole basis for framing the African Charter. The Charter was drafted without disregard to different cultural tradition, levels of development and political ideologies in the new emerging post-colonial African States. Although, the goal of promoting respect for dignity remains
Abstract: The African Charter of Human Rights was established by the Organization of African Unity (OAU) now African Union (AU) to promote and protect human rights. In this study, we shall focus our attention on the history of (OAU) now (AU), its major organs, composition, powers and functions of the organs under the system. We shall also look at the body of rights and instruments adopted to protect these rights under the African Charter and to also examine problems facing the African Charter on human rights and peoples’ right. We adopted a multidisciplinary approach in this study, having regard that it is focused on legal and historical perspectives. Our findings are that the Charter has several problems confronting it and also, Article 30 of the Charter establishes the enforcement and implementation of human and peoples’ rights by states’ parties. Also, we observed that the African Charter should be reformed and a court with full judicial powers be created to cater for the north, south, east and western states that make-up the African Union. The study concludes that the frequent violations of human and peoples’ rights within African states could be avoided, if the excesses of various organs of the AU are properly checked. Key words: African charter, analysis, human and peoples’ rights
African Human Rights mechanisms, 2018
Regional human rights systems, consisting of regional instruments and mechanisms, play an increasingly important role in the promotion and protection of human rights. Regional human rights instruments (e.g. treaties, conventions, declarations) help to localize international human rights norms and standards, reflecting the particular human rights concerns of the region. Regional human rights mechanisms (e.g. commissions, special rapporteurs, courts) then help to implement these instruments on the ground. Currently, the three most well-established regional human rights systems exist in Europe, the Americas and Africa. Following the end of the Second World War, the international community worked towards developing an international system for the promotion and protection of human rights that is binding on member states. With a view to attaining such goal, the international human rights system developed human rights norms that apply across regimes and transcend geographical confines. The United Nations emerged as a leading organ in the universal human rights movement. Parallel to the UN, regional systems have emerged in different parts of the world (Europe, America and Africa) and contributed to the universal human rights discourse. It is believed that the regional systems were created to address gaps and inadequacies that were existent in the international system. Alleged normative disconnect between the universal standards and the realty at the regional level was often viewed as a reason that necessitated the creation of regional systems. It is argued that an international system could sometimes be too far and has to leave some space for regional peculiarities. It seems that these were the considerations that led to the creation of an African regional system for promotion and protection of human rights. This paper will Critically examine the African regional human rights system embodied in the African Charter on Human and Peoples’ Rights
Penn State Law Review , 2004
Conference Paper: Undergraduate Development Conference hosted by University of East London in 2013., 2013
The article tries to shed light on two regional human rights tribunals, i.e., European Court of Human Rights (Strasbourg Court) and African Court of Human Rights (Arusha Court), the future African Court of Justice and Human Rights. The second half of 20 th century is remarked with the steady development of human rights in Africa. One of such development is advanced by the establishment of African Court on Human and Peoples' Rights which has of significant importance in the institutionalization of human rights in Africa. However, while viewed from the perspective of Strasbourg court, the Arusha court is almost weak and ineffective while the former is a crown jewel in protecting and promoting civil and political liberties. In this article, the issues relating to accessibility, efficacy of the decisions of both courts on respective member states and the enforcement mechanisms of the decisions that are rendered will be at the hub of the article. In order to arm young scholars with lucid idea on the area, I will look into different articles, books and practical cases. As an African human rights court is at its embryonic stage, numbers of lessons have to be adopted from the foolproof , advanced and revolutionary court of world.
African Human Rights Law Journal, 2011
This Article assesses the African Human Rights Commission's efforts at developing and defending fair trial norms under the African Charter on Human and Peoples' Rights. The African Commission develops human rights jurisprudence through interpretation of the African Charter and elaboration of resolutions and recommendations. The Article asserts that, with respect to fair trial, the Commission has faired well through the harvest jurisprudence from its communications and the development of soft laws. The Commission's jurisprudence has expounded, explained, clarified, amplified and solidified the Charter's guarantees. This Article notes, at the level of generality, that there is still a great gulf between the enunciated principles and the reality of human rights enforcement and enjoyment in Africa. It suggests steps that the African Union (AU) and its Member States could take to make fair trial rights realisable at the domestic levels, the zones of accountability where o...
Windsor Yearbook of Access to Justice, 2007
Human Rights, The Rule of Law, and Development in Africa raises some of the most topical issues in the discourse of human rights in Africa. Composed of seventeen chapters, the book is divided into three parts: universalism and relativism in human rights discourse, the economic and political dimensions of human rights, and Non-Governmental Organizations (NGOs) and struggles for human rights. Part I consists of six chapters, all of which approach the universalismversus-relativism debate from philosophical, historical, political, and economic perspectives. Together, these chapters overwhelmingly reject the Western appropriation of human rights and argue, instead, for a cross-cultural understanding of human rights. The authors argue that the preoccupation with the intellectual progeny of human rights by scholars does grave damage to the global human rights discourse and movement. By claiming that human rights are culturally specifi c to the West, these scholars homogenize and oversimplify the human rights traditions of both the West and the rest of the world, thereby undermining theoretical advances "that can come from serious and sustained intra-and intercultural comparisons and conversations". 1 These chapters also draw attention to four analytical traps which bedevil the universalism-relativism debate. The debate tends to be idealistic: human rights are often reduced to ideas which have a life of their own unrelated to social struggles; it tends to be legalistic in the sense that courts, not culture, enjoy primacy of authority where the existence of human rights is the issue, while procedure, not practice, tends to be conclusive of the observance or respect for human rights; the debate is also dualistic in the way that it polarizes or prioritizes human rights into civil and political rights against social and economic rights and vice-versa despite the emphasis on interdependence and indivisibility of human rights in the Universal Declaration of Human Rights; fi nally, the debate is ethnocentric: the source of human rights is often located in the West by both the relativists and the universalists. The overarching argument of the chapters of this part is for a holistic view of human rights, for contextualization and intellectual openness, in the acknowledgement that "the construction of a universal human rights regime is a work in progress to which different societies have a role, indeed a right, to contribute." 2 The chapters, thus, urge the reader to consider human rights as ideas and social practices which are not cast in stone, but which
2014
The African Court on Human and Peoples' Rights was established by the 1998 Protocol to the African Charter on Human and Peoples' Rights. On 2 June 2010, its Rules of Court came into force. Rules of procedure are designed to supplement and fill in any gaps in the parent treaty. They are an essential part of the workings of many international bodies, including judicial organs. These Rules, which have a bearing on important aspects of the Court's functioning, are discussed in this article. The article does not undertake an exhaustive analysis of the whole set of Rules; it focuses on those Rules that may help to clarify or not, as the case may be, any obscurities or difficulties associated with the parent Protocol. The contribution covers the Rules pertaining to the composition of the African Human Rights Court; the Court's contentious procedure; and the Court's advisory opinions mandate. In the discussion, the Court's Rules are linked to those of the African Com...
Netherlands Quarterly of Human Rights, 1998
In 1988 the Organisation of African Unity adopted a Protocol top the African Charter on Human and Peoples’ Rights establishing an African Court on Human and Peoples’ Rights. This development addresses one of the fundamental flaws in the institutional system for the protection of human rights in Africa since the Charter entered into force in 1986. The article analyses the provisions of the Protocol from a legal perspective and draws comparisons with other regional human rights judicial organs. The conclusion is reached that in principle the Court does not on the whole compare unfavourably with its European and American counterparts. It can only be hoped that when the Protocol is ratified and comes into force that the Court will be an effective guarantor of human rights in a continent that has been wrecked by abusive state behaviour.
2020
The root of most Human Rights discussions in Africa stems from the input of the west. This tracing of everything human right in Africa to sources outside Africa gives the impression that the idea of the better morality, better religion, better idea of right as distinct from wrong and better idea of human rights was introduced by foreign forces into our “barbaric practice and tradition”. The writer as a prelude to our discussion will be examining the concepts "Africa" and “human rights”, going further to refute the erroneous assertion as evidenced supra that human rights is a relatively new concept to Africa, concluding the discussion with a subtle outlook of the African Charter.
South African Journal on Human Rights, 2001
It is common knowledge that there are a number of features about the African Charter on Human and Peoples' Rights (hereafter, 'the Charter')' which have given cause for concern. 2 One of the principal sources of disquiet has been the fact that, more so than other comparable instruments, the substantive provisions of the Charter are equivocally phrased. 3 Extensive use is made of 'clawback' clauses (which permit 'in normal circumstances, breach of an obligation for a specified number of published reasons' 4) that seem to make the enforcement of rights dependent on municipal law, or at the discretion of the national authorities. 5 Article I 0(1) of the Charter is one such Adopted by the Eighteenth Assembly of Heads of State and Government of the Organisation of African Unity (OAU) at Nairobi in July 1981, entered into force on 21 October 1986, (1982) 21 ILM 58. See GJ Naldi (ed) Documenrs o{the Organi=ation (){African Unity (1992) 109. All of the OAU's fifty-three Member States have now ratified the Charter, seeR Murray 'Africa' (1999) 17 NQH R 350. For an analysis of the Charter. see EA Ankumah The African Commission on Human and Peoples' Rights (1996) 111-177: GJ Naldi The Organization of African Unity 2ed (1999) 109-212; UO Umozurike The African Charter on Human and Peoples' Rights (1997); E Bello 'The African Charter on Human and Peoples' Rights' (1985/86) 194 Hague Recuei/13; RM D'Sa 'The African Charter on Human and Peoples' Rights: Problems and Prospects for Regional Action' (1981/83) 10 Australian Yearbook of International Law 101. 2 The Charter has been described as 'modest in its objectives and flexible in its means'. BO Okere 'The Protection of Human Rights in Africa and the African Charter on Human and Peoples' Rights: A Comparative Analysis with the European and American Systems' (1984) 6 Human Rights Quarterly 141, 158. For other sceptical assessments, see R Gittleman 'The African Charter on Human and Peoples' Rights: A Legal Analysis' (1982) 22 Virginia J of International L 667; P Amoah, 'The African Charter on Human and Peoples' Rights-An Effective Weapon for Human Rights?' (1992) RADIC 226: G Robertson, Crimes Against Humanity (1999) 57-58. D'Sa (note I above) 107-8; Gittleman (note 2 above) 685. CA Odinkalu 'The Individual Complaints Procedures of the African Commission on Human and Peoples' Rights: A Preliminary Assessment' (1998) 8 Transnational L & Contemporary Problems 359, 398 however expresses little concern, as he believes that the African Commission on Human and Peoples' Rights has been addressing this problem through its procedures and jurisprudence. 4 R Higgins 'Derogations under Human Rights Treaties' (1976-77) 48 BYIL 281. 5 It is interesting to note that, unlike other similar human rights treaties, the Charter does not contain a derogation clause that permits the suspension of certain rights and freedoms in strictly defined circumstances. See R Murray The African Commission on Human and Peoples' Rights and International Lall' (2000) 123-26 and generally DJ Harris, M O'Boyle & C Warbrick Law o{ the European Con\'ention 011 Human Rights (1995) 489-506. Thus, in Commission Nationale des Droit.1• de /'Homme et des Lihates I' Chad Communication No 74/92 (1997) 41HRR 94 (state of civil war led to serious and massive violations of human rights, including rights to life, prohibition of torture, inhuman and degrading treatment, and liberty and security of the person) para 21 the Commission observed that the Charter 'does not allow for States Parties to derogate from their treaty obligations during emergency situations. Thus, even a civil war in Chad cannot be used as an excuse by the State violating or permitting violations of rights in the
The African Regional Human Rights System is one of the world's most unique human rights mechanisms. It is an integrated system consisting of numerous institutions and instruments, such as the African Charter on Human and Peoples' Rights, the African Commission on Human and Peoples' Rights, and the African Court on Human and Peoples' Rights. This system was created to promote and safeguard human rights on the African continent. Unique in its conception, the African Regional Human Rights System is founded on the African philosophy of Ubuntu, which emphasises the interconnectedness and interdependence of humans. This philosophy acknowledges that human rights are not only individual rights, but also collective rights that are vital to the well-being of the entire community.1Consequently, the African Regional Human Rights System aims to promote and protect not only civil and political rights, but also economic, social, and cultural rights, which are essential for the development and prosperity of African societies. The African Regional Human Rights System has, over time, developed a comprehensive set of norms and principles that reflect the values and aspirations of African people. The African Charter on Human and Peoples' Rights, which was adopted in 1981, is the foundation of this system. It provides a comprehensive framework for the preservation and promotion of human rights in Africa, and the overwhelming majority of African states have ratified it. The African Commission on Human and Peoples' Rights, which is primarily responsible for monitoring the implementation of the Charter, has also produced a vast corpus of jurisprudence and recommendations that have helped to shape human rights norms and practises in Africa.2 However, despite the significant accomplishments of the African Regional Human Rights System, its implementation faces obstacles. Some African states' lack of political will and resources to fulfil their human rights obligations is one of the greatest obstacles. The limited ability of some institutions, such as the African Court on Human and Peoples' Rights, to effectively implement their decisions and rulings is another obstacle.3 This essay examines the African Regional Human Rights System and its primary characteristics, as well as its conceptualization, the role of the African Union, and the participation of regional stakeholders. In addition, it will examine whether the concept of an African human rights system is based on an essentially "western" approach, whether the standards set by the African human rights are imported or solely reflect the rich African legacy, the extent to which the African values are derived from cultural and tribal traditions, and whether they reflect different cultural values and norms. This essay will conclude by shedding light on the larger human rights debate on universalism and cultural relativism, and whether or not African human rights are included.
2023
This paper considered the views of Some human rights scholars who considered the African Chapter on Human and Peoples' Rights' as a failure, especially its coverage on civil and political rights to be inadequate as a regional Framework. For example, the right to privacy or a right against forced or compulsory labour are not explicitly recognized. The provisions
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