2025

African Human Rights Law,

LHR500

Suné-Mari Koekemoer

STADIO School of Law

TOPIC 1: INTRODUCTION TO INTERNATIONAL HUMAN RIGHTS LAW

BACKGROUND AND FOUNDATION

• Foundation
o Based on the International Bill of Human Rights
o A collection of legal instruments protecting the basic rights and fundamental
freedoms of individuals
o Binding on ratifying states
o Obligations must be performed in good faith
• Key Instruments

1948
• Universal Declaration of Human Rights
(UDHR)

1976
• International Covenant on Economic,
Social and Cultural Rights (ICESCR)
• International Covenant on Civil and
Political Rights (ICCPR)
• Optional Protocol to the CCPR on death
penalty abolition

UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

• Adopted by UNGA in 1948

• Not a legally binding treaty
• Addresses injustices and abuses
• Response to human rights violations during world wars
• Arguably now has customary international law status
• Core principles
 o International commitment to justice and dignity
o Universal recognition of basic rights
o Rights are inalienable and inherent
o All individuals are born free and equal
o Protection regardless of gender, nationality, ethnic/national origin, religion

‘HUMAN RIGHTS’, ‘HUMAN RIGHTS LAW’ AND ‘INTERNATIONAL HUMAN

RIGHTS LAW’

Human Rights Human Rights

• Abstract/philosophical Law
concept • Manifestation of moral
• Special moral claim claims in positive law
invoked by all • Constitutional
humankind guarantees in national
legal framework
• Expressed through
Bill of Rights

NEED FOR HUMAN RIGHTS PROTECTION

• Challenges of majoritarianism
o Majority rule may disregard minorities
o Vulnerable groups need protection
• Solution = constitutionally entrenched Bill of Rights
• Basic rights become integral to the national legal system
ROLE OF THE STATE

• State-centredness
o Human rights law linked to nation state
o States as primary duty bearers
• Fundamental paradox
o States must guarantee rights, but are often the principal violators
o Citizens thus need protection against state power
• State responsibilities
o Guarantees citizens rights
o Protects residents within territory
o Accountable through domestic legal processes
• Comparative functions

Human Rights
• Serves as Human RIghts Law
yardstick and ideal
• Represents concrete
state obligations

INTERNATIONAL DIMENSION

• International human rights law

o Different sources than national law
o Based on international conventions/treaties
• Historical evolution
o UDHR, 1948
o Continuous development of standards
 o Established monitoring mechanisms
o Led to
▪ Internationalisation of human rights
▪ Humanisation of international law

THE ‘THREE GENERATIONS’ OF INTERNATIONAL HUMAN RIGHTS LAW

First generation - Second generation Third generation -

Liberte - Egalite Fraternite
• Freedoms • Equality • Solidarity
• Civil and political rights • Socio-economic rights • Collective Rights

Traditional perspective

• First generation
o Immediate application
o Negative state obligation
• Second generation
o Progressive implementation
o Positive state obligations

Modern understanding

• Dichotomy is no longer accepted

• Rights are interrelated and interdependent
 • Focus on government obligations rather than generations
• Distinctions still used to some extent in current international law

FOUR TIERS OF GOVERNMENT OBLIGATIONS

Universal obligations -> applies to all rights regardless of generation

Respect
• Refrain from interference

Protect
• Guard against 3rd party intrustions
• Through legislation and executive action

Fulfil
• Take positive measures
• Guarantees direct enjoyment

Promote
• DIsseminate information
• Create an enabling environment
• Foster education and awareness

THE ‘JUSTICIABILITY’ OF INTERNATIONAL HUMAN RIGHTS LAW

• Juridical character of human rights

o Rights serve as authoritative legal claims
o Aimed at state accountability
o Provides normative yardstick
o Basis for persuasion and lobbying
• Concept of justiciability
o Violations entitle the aggrieved party to judicial process
o Courts/tribunals can entertain claims
 o Remedies are available for infringement
• Current reality
o Judicialisation of rights has increasingly become the norm
o In reality: justiciability primarily limited to civil/political rights

UNIVERSALITY OF HUMAN RIGHTS IN THE AFRICAN CONTEXT

HISTORICAL CONTEXT AND IMPLEMENTATION

• African Participation
o African states were UN members in 1948
o Present during UDHR adoption
o Argument of ‘foreign rights’ not tenable
• Implementation
o Most African states have ratified international instruments
o Or incorporated into their domestic law
o Rights transcend all boundaries
o Non-discriminatory enjoyment

UNDERSTANDING UNIVERSALITY

• Core concept
o Equal claim to dignified existence
o State responsibility for protection
o Central tenet of political/social organisation
• Characteristics
o Rights are: universal, indivisible, interdependent and interrelated

CULTURE

• Cultural considerations
o Local circumstances may affect application
o Cultural/religious background influence
o Universality doesn't mean uniform application
 o Variety in cultural expression permitted
• Important Limitations
o Cultural interpretations must not:
o Support oppression
o Affront women's rights to life
o Affront women's rights to health
o Conflict with common sense of human dignity

Slide 25
TOPIC 2: THE ROLE OF THE UNITED NATIONS ORGANS AND AGENCIES
IN REALISING HUMAN RIGHTS IN AFRICA

• In an attempt to reduce international conflict and widespread human rights

violations, the UN embraces the principles of development, peaceful settlement of
disputes, and respect for human rights.
• All UN state members ‘take joint and separate action’ in pursuit of achieving
‘universal respect for, and observance of, human rights and fundamental freedoms
w/out distinction as to race, sex, language or religion’.
• UN charter -> 1945
• Current membership is 193, w/ 54 African states
• All UN member states fall under ambit of the Charter-based system
o States that have ratified/acceded to certain treaties are bound to observe
that part of the treaty-based system they explicitly agreed to
• By becoming a UN member -> voluntarily cedes substantial part of sovereignty

THE UN CHARTER-BASED SYSTEM AND HUMAN RIGHTS IN AFRICA

• The UN Charter established six principal organs mandated to carry out the overall
human rights functions of the UN.
• These are called ‘charter-based’ organs. The Trusteeship Council was suspended
in 1995 leaving only 5 organs.
• The UN Charter sets forth the “inherent dignity” and the “equal and inalienable
rights of all members of the human family.”
• The UN, through its charter-based organs, ensures that these human rights
principles are upheld as the “foundation of freedom, justice and peace in the world.
• The 6 charter-based organs:
 General Economic and Security
Assembly Social Council Council

International Trusteeship
Secretariat Court of Council
Justice • Suspended 1995

THE GENERAL ASSEMBLY

• Assisting in the ‘realisation of human rights and

fundamental freedoms for all’ -> standard setting
• The General Assembly is the main deliberative,
policymaking, supervisory and reviewing organ of the
UN.
o Debates and discussions have resulted in
resolutions, declarations and binding treaties
• NB: Universal Declaration of Human Rights, 1948
• The representatives of all the member states of the UN
constitute the General Assembly.
• Voting
o Each member state has one vote in the General Assembly and most
decisions are reached by simple majority.
o However, decisions on critical questions such as the budget, admission of
a new member or peace, require two-thirds majority vote.
• Human-rights related functions:
 International Initiating studies and
The realisation of
The development and collaboration in the making
human rights and
codification of economic, social, recommendations for
fundamental freedoms
international law cultural, education and promoting international
for all
health fields political cooperation.

• Third Committee
o Political decisions re human rights matters are referred to the Assembly’s
Third Committee
o Social, humanitarian, cultural affairs
o Intensive process of technical and legal debate
• Forum for various other human rights oversight activities
• Resolutions adopted recently by the G.A. = numerous issues of relevance to the
developing world (specifically Africa) are now firmly part of the matters under
constant review before the
Assembly

Africa and the General Assembly

• African states initially regarded the

assembly w/ scepticism
• Now, Afro-Asian states constitute
a majority
• Use the Assembly as a forum to
address issues of self-determination, decolonization and racism
• 1960: Declaration on the Granting of Independence to Colonial Countries and
Peoples -> self-determination of colonial peoples
 • African states played a role in the inclusion of treaties such as ICESCR and ICCPR
via their support thereof
• African opposition to SA’s racial policies helped inspire the adoption of the
Convention on the Suppression and Punishment of the Crime of Apartheid
• Minority judgement of RSA during Apartheid
o First significant encroachment on state sovereignty by the UN
o G.A. rejected SA’s reliance on the principle of non-interference in its
domestic affairs as a reason to disallow international inspection and
criticism
• More examples: Nigeria, pp 48.

Millennium Declaration

• Eradication of poverty
• Millennium Development Goals (MDG’s)

1. Poverty and 4. Infant child

2. Primary Education 3. Gender equality
hunger mortality

6. HIV/AIDS, malaria 7. Environmental

5. Maternal health 8. Global partnersips
and other diseases sustainability

• Positives
o Targets are measurable and time-bound
o Accountability
 o An extensive institutional apparatus for their promotion, departing from the
UN’s business-as-usual approach
• Negatives
o Fail to adequately mainstream human rights into the development agenda
o Omits several civil and political rights -> do not refer to the full human rights
framework
• Proposition: special mechanisms and treaty bodies should support the
mainstreaming agenda by making the MDG’s an explicit and consistent part of the
UN’s activities
• 2011 Millenium Report: extremely unlikely that sub-Saharan Africa will attain many
of its goals within the stipulated time frame

THE UN SECURITY COUNCIL

• Principle UN organ responsible

for making decisions re
international peace & security
• Empowered to take ‘measures
not involving the use of force’
when a ‘threat to the peace’ exists
o Mandatory sanctions
against Rhodesia in 1968
was first, then South
Africa’s mandatory arms
embargo in 1977.
o These instances were ‘self-evidently based upon internal situations’ and
served as precedent for sanctions
• UN Charter does not specifically provide for peace-keeping -> rather, under
general rubric of its aim to maintain peace and security
 • UN’s peace-keeping operations started off as simple observations and
interposition missions
o Such as its mission to the Congo via ONUC, which later became regarded
as an imperialistic instrument to subvert African independence
• UN then became increasingly involved in internal conflicts, and UN missions then
gradually became involved in the protection of human rights by providing
humanitarian relief and supervising elections.
• By 1995, the goals of peace-keeping were described as having to take the human
rights situation into account
o Aim to ensure the promotion and protection of human rights

Membership

• Composed of 15 members
o 5 permanent members
▪ China, France, Russia, UK and US
o 10 non-permanent members
▪ Regularly elected by UN General Assembly for a 2-year period
• E/ member of the SC has 1 vote
• Permanent member has veto power
 o They have the power to block the adoption of any resolution
• A decision of the SC requires a majority of 9 votes, supported by the agreement of
all 5 permanent members
• All the member states of the UN, at the time of joining, agree to accept & carry out
decisions of the SC
• The five permanent members have been described as dominating the security
council
o Do the mechanisms in the SC reflet the democratic ideals of the
organisation?
o Is the collective authority they exercise legitimate?
• Possible addresses
o Reform the veto system
o Membership to the SC may be increased
o Influence of the GA in the work of the SC should be enhanced

Human rights authority of the Council

• Consider gross human rights violations that are threats to peace and security
under article 39 of the UN Charter & recommend enforcement measures
• To put human rights mandates into peace-keeping operations or to mandate
separate human rights violations
• To establish international criminal tribunals, to investigate and prosecute alleged
commission of acts violating international human rights law and international
humanitarian law

THE ECONOMIC AND SOCIAL COUNCIL (ECOSOC)

• Consists of 54 members of the UN, elected by

the General Assembly (article 61 of the UN
Charter)
• It coordinates the economic and social work of
the UN
 o Critical role in fostering international cooperation for development
o Maintains the vital link between the civil society and the UN by the ongoing
consultations w/ NGO’s
• ECOSOC may make recommendations for the purpose of promoting respect for,
and observance of, human rights and fundamental freedoms for all (article 62(2)).
• ECOSOC has many functional commissions that help it in its work
o Such as: human rights, social development, the status of women, narcotic
drugs
• There are 5 regional commissions designed to promote economic development
and cooperation in their respective regions
o Economic Commission for Africa
o Economic Commission for Europe
o Economic Commission for Latin America and Caribbean
o Economic and Social Commission for Asia and Pacific
o Economic and Social Commission for Western Asia
• Economic Commission for Africa
o Conducts research and produces publications (Economic Report on Africa)
and progress reports realising the MDG’s in Africa
• ECOSOC created the UNCHR
o 54 instructed governmental reps elected by the ECOSOC irrespective of the
human rights record of the states concerned
o Main accomplishments: elaboration and near-universal acceptance of the 3
major international human rights instruments of the Universal declaration of
Human Rights, the ICCP and the ICESCR.
o Initially worked towards human rights promotions, but increasingly became
involved in efforts to deal w/ human rights violations
o Procedures 1235 and 1503 -> al UN member states were subject to
Commission scrutiny (even where they have not ratified any international
human rights instruments)
• The UN Commission on Human rights was disbanded in 2006 and replaced by the
UN Human Rights Council
 o A subsidiary organ of the GA
• The Commission on the Status of Women is a functional commission of the
ECOSOC
o Concerned w/ the development of substantive policy guidance w.r.t. the
advancement of women
o Promotes gender equality + empowerment of women
o Guiding principles: “to raise the status of women, irrespective of nationality,
race, language or religion, to equality with men in all fields of human
enterprise, and to eliminate all discrimination against women in the
provisions of statutory law, in legal maxims or rules, or in interpretation of
customary law.”

Permitted the Commission to Individual complaining of a

Resolution 1235, 1967

Resolution 1503, 1970

examine gross human rights violation of their rights
violations -> role of Apartheid Conducts a thorough study
Procedure is public and non- OR appoints an ad hoc
confidential committed to investigate
Conducts country-based Procedure is shrouded in
investigations of gross secrecy
human rights violations Procedure is applicable only
after domestic remedies have
been exhausted and
prescribed procedures of
international/regional
instruments, as available to
the individual, have been
followed
Last-resort mechanism

HUMAN RIGHTS COUNCIL (UNHRC)

ESTABLISHMENT & MEMBERSHIP

• Inter-governmental body within the UN System

 • Established by UN General Assembly Resolution 60/251
o Passed March 15, 2006
o Replaced former UN Commission on Human Rights, which was disbanded
• Benefits from the Office of the High Commissioner for Human Rights (OHCHR) for
substantive, technical and secretariat support
• Role
o Responsible for strengthening the promotion and protection of human rights
globally
o Also addresses situations of violations of human rights and makes
recommendations on them
o Provides a multilateral forum to address violations of human rights globally,
and country situations
o Responds to human rights emergencies
o Makes recommendations on the effective ways of implementing human
rights on the ground

Membership
o47 member states of the UN
oElected by the UN General Assembly
oFor a 3-year term
oFor 2 terms
oSeats are equitably distributed among the five UN regional groups
oUN General Assembly may vote to suspend membership in case of gross and
systemic violations of human rights

MANDATE OF THE UNHRC

 • Provides an international forum for dialogue on human rights issues w/ different
stakeholders
o Mandated experts
o UN staff
o Civil society
• Conducts regular sessions -> adopts resolutions/decisions on human rights
matters
• Convene special sessions -> response to urgent crisis re human rights situations
• Undertakes Universal Periodic Review of human rights records of all UN Members
• Special Procedures
o Independent human rights experts, appointed to monitor human rights
situations in given countries
o Also examine specific human rights themes
• May constitute commissions of inquiry and fact-finding missions
o May investigate and reveal violations of human rights (war crimes, crimes
against humanity)
• Where the UNGA wishes to adopt a new human rights instrument
o HRC discusses and debates these potential new human rights standards

MECHANISMS & ENTITIES

Special Universal Advisory Complaints

Procedures Periodic Committee Procedure
• Individuals or Review • Provides UNHRC • Enables
groups • State-led w/ expertise & individuals, groups
• Not employed by • Regularly
advice on or organisations to
the UN thematic issues of report violations of
assesses
• Speak out on human rights human rights to
situations of
themes (health, UNHRC
human rights of all
free speech, UN members
human trafficking)

UNIVERSAL PERIODIC REVIEW

• Unique process within the Council w/ involves a review of the human rights records
of all the 193 UN members states
 o Even those who are not a party to many of the treaties, and those that fail
to report / report irregulary
• Reports are to be submitted once every 4 and a half years
• This review system provides an opportunity for e/ state to declare what actions
they have taken to improve the human rights situation in their countries
o To fulfil their human rights obligations
o And the challenges/constraints they encounter in the process
• Designed to ensure equal treatment in assessing the human rights situation of
every country
• Legal basis – UN Charter and Universal Declaration of Human Rights
o Universal Declaration has now achieved customary international law status
-> includes in its yardstick human rights that have not been formally
accepted by states by ratifying specific treaties
o Ofc, ratified treaties are also included in the substantive basis of review
• Reasons for compliancy
o Less demanding reporting requirements
o Less exacting than an examination by experts
• How it works
o Reporting states -> submit national report
o Reviewed during a session of the UPR Working Groups
o Read w/ info provided by the OHCHR
o Debate ensues -> member state may pose questions and make
recommendations
o Outcome report -> agreed to implement recommendations, or reject them

SPECIAL MECHANISMS

• Holders of the mandate of the Special Procedures of the UNHRC comprised

special rapporteurs, independent experts or working groups.
• Working groups
o Five members
o Working in their personal capacity
 o Appointed by the HRC but are not UN officials
• Special Procedures entail the following
o Contributing to the development of international human rights standards
o Acting on individual cases and concerns of a broader structural nature
▪ Sending communications to states and other actions
▪ Bringing alleged violations to their attention
o Undertaking country visits
o Conducting thematic studies and convening expert consultations
o Advocacy
o Raising public awareness
o Providing advice for technical cooperation
• Independent experts report their findings to the UNHC and UNGA at least once a
year
o Provides a mechanism of alerting the international community to critical
huma rights issues occurring globally
• Council can conduct investigations, establish fact-finding missions and
investigations and international commissions of inquiry
o Ordinarily set up to respond to egregious violations of international human
rights and humanitarian law
o Procedures seek to counter impunity and promote accountability

JUDICIAL ORGANS

• Judicialisation of international law -> improve implementation of international law

standards
• A general mandate exists (eg, International Court of Justice) -> establishing courts
specifically targeting impunity for gross human rights violations

INTERNATIONAL COURT OF JUSTICE

• Principle judicial organ of the UN

• Established 1945 by the Charter of the UN
o Statute of the International Court of Justice
 o Article 93 – all members of the UN are automatically State parties to the ICJ
Statute
o Article 93(2) – avenue for non-UN member states to become parties to the
Statute of the ICJ
• Composed of 15 judges
o Represent the main forms of civilisation and the principle legal systems
of the world
o Judges are elected by the UN General Assembly and the Security
Council

JURISDICTION OF THE ICJ (CONTENTIOUS AND ADVISORY)

• Jurisdiction of the ICJ = contentious and advisory

oThe Court has a responsibility to settle disputes/issues in accordance with

international law
Contentious/adjudicatory
oContentious legal disputes submitted t it by the states based on voluntary
participation
oGives advisory opinions on legal questions referred to it by authorised UN
Advisory
organs and specialised agencies

• The ICJ’s mandate requires it to, to a limited extent, involve itself in international
human rights matters
• Article 94: all UN members have a duty to comply w/ decisions of the ICJ
involving such state parties
• Critical to note: decisions of the ICJ is not binding except as between the parties,
and only for the matter between them.

ARTICLE 38 OF THE STATUTE OF THE ICJ

• Applies international law as set out in Article 38 of the Statute of the ICJ
• In arriving at its decisions…
o The court shall apply
▪ International conventions
▪ International customs
▪ General principles of law recognised civilised nations
 o The court may also make reference to
▪ Academic writings (teachings of the most highly qualified publicists
of the various nations)
▪ Previous judicial decisions of the court
• The ICJ does not individualise its findings of violations
o its judgements may have a close bearing on international human rights

ICJ ADVISORY JURISDICTION & INTERNATIONAL HUMAN RIGHTS IN AFRICA

• ICJ has exercised its advisory jurisdiction in a few cases.

• The ICJ affirmed the right of self-determination of the people of the Namibia and
Western Sahara.
• In Armed Activities on the Territory of the Congo (DRC v Uganda, 2005), the
findings of the ICJ was that Uganda violated international human rights law, the
provisions of the African Charter, and international humanitarian law in the Iturl
province of the DRC.
o Also made the finding that Uganda violated the Vienna Convention on
Diplomatic Relations when its forces attacked the Embassy of Ugunda at
Ndjili International Airport.
• In Arrest Warrant of 11 April 2000 (DRC v Belgium, 2002)
o ICJ found that Belgium violated international law -> issuing an indictment in
an attempt to prosecute Yerodia Ndombasi under the Geneva Conventions
o At that time, he was the incumbent Minister of Foreign Affairs
• Ahmadou Sadio Diallo (Republic of Guinea v DRC, 2010)
o Guinea made an inter-state complaint alleging that the unjust imprisonment
of its national & the despoiling of his property by the DRC amounted to
violation of human rights
o ICJ found that the DRC violated article 12(4) of the African Charter by
expelling Diallo
• Questions re to the Obligation to Prosecute or Extradite (Belgium v Sengal, 2009)
o Belgium sought to oblige Senegal to prosecute or extradite former Chadian
President Habre
 o ICJ held that the state in whose territory the suspect is present has received
a request for extradition, it can relieve itself of its obligation to prosecute,
under the Convention Against Torture, by acceding to that request
o May 2016: Extraordinary African Chambers in Senegal found Habre guilty
of human rights abuses -> sentenced to life imprisonment

INTERNATIONAL CRIMINAL COURT

• Rome Statute of the ICC -> 1998

o Entered force 2002
• Not a UN organ
• Statute establishes the functions, jurisdiction and structure of the ICC
• Subject matter entails 4 core crimes under articles 7 and 8
o Genocide, crimes against humanity, war crimes, the crime of aggression
• Jurisdiction of the court
o Complementary to the national jurisdiction of domestic courts of the
member state parties
o Court can only exercise jurisdiction where the domestic jurisdiction is either
unwilling or genuinely unable to investigate or prosecute a Rome Statute
crime
o Known as the principle of complementarity
o Has jurisdiction over only crimes committed in the territory of a state party
o The UN Security Council, through its trigger mechanism, may authorise the
ICC to exercise jurisdiction over crimes committed outside the territory of a
member state party
• Provides a mechanism for accountability based on individual responsibility for the
commission of heinous atrocity crimes
o Does not afford immunity from prosecution for any person on account of
their status or office held
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
(ICTY)

• Widespread flagrant violations of human rights

and international humanitarian law in former
Yugoslavia prompted intervention by the SC.
• The SC, by resolution 827 on 25 May 1993,
established an ad hoc body, the International
Criminal Tribunal for the Former Yugoslavia, to
prosecute individual persons responsible for
serious violations of international humanitarian law committed in the former
Yugoslavia during the Yugoslav wars since 1991.
• ICTY closed on 31 December 2017.
• The International Residual Mechanism for Criminal Tribunals (IRMCT) was
established by the UN Security Council Resolution 1996 on 22 December 2010.
o The mandate of the IRMCT was to ‘continue the jurisdiction, rights and
obligations and essential functions of the ICTY and the ICTR’
o The IRMCT carries out its functions in 2 branches at Arusha, Tanzania and
at The Hague, the Netherlands

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR

RWANDA (ICTR)

• During 1994, there were rampant egregious violations of

human rights and international humanitarian law in Rwanda,
characterised by alarming genocidal ethnic cleansing on an
unprecedented scale.
• Prompted the UNSC to pass Resolution 955 of 1994, on 8
November 1994, establishing the ICTR.
• The UNSC resolution 955:
o “to establish an international tribunal for the sole purpose of prosecuting
persons responsible for genocide and other serious violations of
 international humanitarian law committed in the territory of Rwanda and
Rwanda citizens responsible for genocide and other violations committed in
the territory of neighbouring States”
• The Statute of the ICTR provided that the temporal jurisdiction of the ICTR covered
crimes committed by Rwandan citizens, and non-citizens, in the territory of
Rwanda and neighbouring states between 1 January and 31 December 1994.
• The ICTR had its seat in Arusha, Tanzania, with its Appeals Chamber located in
The Hague, the Netherlands.
• The ICTR was wound up and closed on 31 December 2015.
o Its outstanding judicial processes were taken over by the International
Residual Mechanism for Criminal Tribunals (IRMCT).
o The IRMCT, however, assumed its responsibilities for residual functions
much earlier on 1 July 2012.

SECRETARIAT OF THE UN

• The substantive and administrative functions of the UN are conducted by the UN

Secretariat, as directed by the UN Security Council, the General Assembly, and
the other UN organs.
• Article 97 of the UN Charter provides that the Secretariat shall be composed of a
Secretary-General, as the chief administrative officer of the UN, appointed by the
General Assembly upon the recommendation of the Security Council, and such
staff as the organisation may require.
• The Secretary-General is the administrative head of the Secretariat.
• The main functions of the UN Secretariat include:
 To promote the principles
To help carry out
of the UN Charter and
decisions made by the
build understanding and
different organs of the
public support for the
UN.
objectives of the UN.

To gather and prepare To promote economic

background information and social development,
on various issues so that development
government delegates cooperation, human
can study the facts and rights and international
make recommendations. law.

SPECIAL PROCEDURES WITHIN THE UNHRC

• The UN Human Rights Council is an inter-governmental body within the UN

system.
• The Council was established by General Assembly Resolution 60/251 passed on
15 March 2006 to replace the former UN Commission on Human Rights, which
was disbanded.
• It is responsible for strengthening the promotion and protection of human rights
globally.
• The Council also addresses situations of violations of human rights and makes
recommendations on them.
• The Human Rights Council comprises 47 member states of the UN elected by the
UN General Assembly.
• The Universal Period Review (UPR) is a unique process within the Council which
involves a review of the human rights records of all the UN members states once
every four and a half years.
• This review system provides an opportunity for each state to declare what actions
they have taken to improve the human rights situation in their countries and to fulfil
 their human rights obligations, as well as the challenges and constraints they
encounter in the process.
• The holders of the mandate of the Special Procedures of the Human Rights
Council comprised special rapporteurs, independent experts or working groups.
The working groups are composed of five members, working in their personal
capacity, and appointed by the Human Rights Council.
• Special Procedures entail the following:
o Contributing to the development of international human rights standards o
Acting on individual cases and concerns of a broader structural nature by
sending communications to states and other actors bringing alleged
violations or abuses to their attention
o Undertaking country visits
o Conducting thematic studies and convening expert consultations
o Engaging in advocacy
o Raising public awareness
o Providing advice for technical cooperation.
• The independent experts report their findings and recommendations to the Human
Rights Council and the UN General Assembly at least once a year. Their report
provides a mechanism of alerting the international community to critical human
rights issues occurring globally.
• The Council can conduct investigations, establish fact-finding missions and
investigations and international commissions of inquiry. These procedures are
ordinarily set up in response to egregious violations of international human rights
and international humanitarian law. Such procedures also seek to counter impunity
and to promote accountability for such egregious violations.

CONCEPTS OF MONISM AND DUALISM IN INTERNATIONAL HUMAN

RIGHTS LAW

• The concepts of ‘monism’ and ‘dualism’ represent the two different theories or
approaches to the relationship between international law and domestic law. These
 concepts were originally conceived as two opposing theories of the interaction
between national law and international law.
• Many modern jurists and legal scholars consider monism and dualism as having
limited explanatory power as theories owing largely to their failure to advance
plausible explanations on how international law operates within the national legal
system. It has been argued that, notwithstanding their theoretical decline, monism
and dualism retain their authority as a powerful legal analytical apparatus.
• The concepts of monism and dualism inevitably raises two questions
o Whether international law norms can be invoked as part of the municipal
legal system?
o If international law may be ‘invoked’, the question would then be, what is
the relative weight to be assigned to the municipal and international legal
systems?
• Dualism
o The ‘dualist’ approach maintains that international law and municipal law
are fundamentally different and independent. Accordingly, an enabling
legislation is necessary to incorporate (‘domesticate’) or ‘transform’
international law into national law.
o ‘Transformation’ entails amendment to the existing laws or the adoption of
new domestic legislation in consonance with the treaty provisions.
o ‘Incorporation’ entails wholesale inclusion of the treaty in national law.
Questions of hierarchy of norms then arise. International law may enjoy a
position inferior to national law (both legislation and the constitution).
International law may be given a status superior to that of national
legislation (but not the constitution).
o International law may enjoy a status superior to all national law (including
the constitution). These issues are bound to generate considerable legal
discourse.
• Monism
o The ‘monists’, on the other hand, maintain that international law and
municipal law are inextricably linked.
 o According to the ‘monist’ approach international law becomes part of
municipal law upon ratification.
o According to Hans Kelsen, a prominent proponent of monism, the
hierarchical relationship within the monist legal system is that international
law was superior to national law and therefore in the event of conflict the
international law prevailed.
• Multiple states are partly dualist and partly monist in their application of
international law in their respective domestic legal systems.
• Finally, it is worth noting that other approaches or theories have emerged, for
instance, those that recognise the ‘self-executing’ nature of particular treaties.

SUBSIDIARITY IN INTERNATIONAL HUMAN RIGHTS LAW

• It may be argued that international human rights law is a system that is subsidiary
to the national system.
• International human rights law does not replace the national law.
o It coexists with and supplements the municipal law.
• The states have primacy in determining the precise form in which to shape the
open-ended international norms
• The principle of subsidiarity is evidenced in the development of the concept of
‘margin of appreciation’ by the European Court of Human Rights.
o In terms of this concept states are granted a degree of latitude in matters
relating to the balancing of individual rights and public interest.
• Subsidiarity as ‘complementarity’ is reflected in the requirement of the exhaustion
of local remedies.
o Where a treaty provides for an individual to complain against the state, they
can only approach an international body after the state fails to respond
favourably to a notice of the violation of the treaty provision.
• Where the domestic processes are unduly prolonged, or if there is no local remedy
altogether, an individual may be exempted from the requirement of first exhausting
domestic recourse.
• Under the Rome Statute, the principle of complementarity ensures that the
International Criminal Court (ICC) does not have criminal jurisdiction over a case
that is being investigated or prosecuted by a state that has domestic jurisdiction
over it.
o However, where the domestic jurisdiction is either unwilling or genuinely
unable to investigate or prosecute, then the ICC may assume jurisdiction.
TOPIC 3: THE UN TREATY-BASED HUMAN RIGHTS SYSTEM AND AFRICA

• 9 major human rights treaties have been adopted under UN auspices

• Each treaty establishes a treaty monitoring body in the form of a supervisory quasi-
judicial institution
• These treaties are not the only human rights instruments adopted under UN
o These treaty bodies were not established to supervise any human rights
instruments
• International judicial bodies are required to apply sources of international [human
rights] law outlined in some important international statutes

Article 7 of the Protocol

Art 38(1) of the Statute Art 21(1) of theRome Vienna convention on
of African Court on
of the ICJ Statute of the ICC the law of Treaties
Human Rights
• Provides that when • The court shall apply: • Requires court to • Contains conditions to
disputes are referred (b) where appropriate, apply any other be fulfilled before an
to the ICJ, the court applicable treaties relevant human rights instrument qualifies as
shall apply: ‘(a) instruments ratified by a treaty
international the states concerned • VCLT is a codification
conventions, whether of international law
genera or particular, principles determining
establishing rules the conclusion of
expressly recognised treaties and related
by the contesting matters
States...'

TREATIES: MEANING

• Article 2(1)(a) of VCLT: ‘an international agreement concluded between States in

written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and in whatever particular
designation’.
• A valid and binding treaty is constituted when 2/more states have come to an
agreement according to international law requirements
• Treaty must be in written form + subject to international law.
• No hierarchy is designed in the sources of international law listed under article
38(1) of the ICJ Statute
 o Treaties are usually given primary significance -> increased codification of
international law
o Article 21 of Rome Statute ranks sources preferentially -> treaties are not
given primacy

TREATY

• A treaty is a written agreement to which a state party may consent to be bound

o Based on the consent of state parties

Between two Between multiple Bring into

Bilateral

Multilateral

Constitutive
states states existence
Play significant international
role in law-making entitites
and codification of Eg, the Rome
international law Statute of the
Eg, the 1949 International
Geneva Criminal Court of
Convention 1998
Constitutive
treaties are also
multilateral

• Also treaties:
o Agreements between states and international organisations
o Agreements between international organisations
o Example: UN International Law Commission drafted a separate VCLTIO
between states and international organisations to accommodate special
considerations
• States may conclude agreements w/ non-state entities, and agreements may be
concluded in a non-written form
o These treaties must conform to the principles of international law, even if
not w/ the VCLT
o Legal validity of the treaty is not affected
PROTOCOL

• A legal instrument adopted to supplement/amend an aspect/s of an existing treaty

o Often creates new obligations/rights
o Allows a treaty to evolve w/ time
• Same legal force as the treaty it supplements
• The state party to the main treaty has the option of becoming a party to the protocol
to that treaty
o Extends the scope of their substantive obligations
o Or accepting a procedural amendment

PHASES IN THE LIFE OF A TREATY

1. Elaboration 2. Adoption
• initiation and formulation • Final draft presented to policy-making
• discussion, elaboration and drafting organ for adoption
• need for reform identified by civil • AU Assembly of Heads of State and
society/state/gov body Government adopts texts of treaties
• experts within policy making bodies • After adoption, treaty is not legally binding,
• travaux preparatoires (drafting history) but open for signature and ratification

3. Adherence 4. Entry into force

• State becomes party to human rights treaty only by • Upon ratification by required number of
ratification, not merely by signature
states, treaty enters into force
• Signature is mere formal recognition of authenticity of
adopted text • Treaty becomes an internationally binding
• Ratification or accession is necessary asexpression of legal instrument binding state parties
consent of state to be bound • Pacta sunt servanda (agreements must be
• Ratification at domestic level preceed external
ratification (when state depositis instruments of respected)
ratification w/ a depository) • Treaty enters into force for a particular
• Accession is a means by which states that had not state on a date fixed after its ratification or
participated in drafting or negotiation and had not
signed treaty, become a party to the treaty
accession to treaty

5. Operationalisation 6. Domestication
• Most human rights treaties entail a • to give maximum effect to reaty it is made
monitoring mechanism to ensure its part of domestic law
effective functioning or implementation • Domestication can be achieved through
• It may need establishment of a secretariat either incorporation and transformation
• Incorporation: national legislation to
domesticate treaty
• Policy and udicial decisions
• There could be a requirement that threaty
be published before courts rely on them

7. Implementation and internalisation

• Compliance by government officials and
nationals w/ treaty is a challenge
• Effective if compliance not motivated by
coercion
• Internal process of norm-acceptance
CAPACTY TO CONCLUDE AND CONSENT

• Sovereign capacity is recognised by article 6 of VCLT

o Every state possesses capacity to conclude treaties
o Capacity is assumed in all cases where statehood of a party is not in
question
• Consent
o Consent to be bound by treaty must be disclosed to the other party by some
positive act
o Consent may be expressed by signature, exchange of instruments,
ratification, acceptance, approval or accession, or other means agreed
upon by the parties
o The act of expressing consent will be determined by the treaty itself, or
ascertained for intention of the parties
• Ratification, acceptance, approval and accession have the same legal effect
• Signature and exchange of instruments may be subject to ratification,
acceptance or approval
• Signing of the treaty may be subject to delayed ratification for reconsideration
• Pacta sunt servanda places good faith obligation on parties to comply
• VCLT prohibits parties from invoking national law to justify failure to perform in
terms of treaty

ENTRY INTO FORCE

• As soon as consent to be bound is established for all negotiating states

o Unless treaty itself provides otherwise
o Or states reached agreement on a different date
• Consent established after date on which treaty was entered into force
o Treaty enters force on that day
• Multilateral treaties
o Certain events can be used to determine entry into force
 o Minimum number of state ratifications may be set as a precondition for entry
into force
• Several states may give consent to be bound at different dates after entry into force
of the treaty, treaty will enter force for them at different dates

TREATY RESERVATIONS

• A state may become a party to a treaty w/out accepting to be bound by all treaty
provisions
o Make certain reservations to a treaty -> excluding/modifying the legal
consequences re certain provisions
• Reservation: unilateral statement made by a state when
signing/ratifying/accepting/approving/acceding to a treaty, whereby it
purports to exclude or modify the legal effect of certain provisions of the
treaty in their application to that state.
• A treaty may disallow reservations to certain provisions.
• Reservations may only be made at the following times: signing, ratifying,
accepting, approving, or acceding
• Genocide Convention
o States that made reservations and which has been objected to by some
state parties but not others, remains a party to the Convention
o If the reservation is compatible with the object and purpose fo the
convention
• Reservation must be
o Formulated in writing
o Communicated to
▪ Contracting state parties
▪ Other states entitled to become parties
• State objections to a reservation
o Provisions re the reservations do not apply between the objecting and
reserving state
 o If the objecting state has not opposed the entry into force of the treaty
between them

INVALIDITY, TERMINATION AND SUSPENSION

• Invalidity / consent to be bound -> only via application of Vienna Convention on

the Law of Treaties
• Termination/suspension/denunciation/withdrawal -> via application of the treaty
itself, or the VCLT
o Does not affect the duty of a state party to fulfil those treaty obligations to
which it remains bound under the general international law independent of
the treaty
• Validity of a treaty
o Contested based on error, fraud, corruption, or coercion of a state rep
o Error must relate to a fact/situation assumed by the consenting state at the
time + form essential basis of the consent of that state to be bound
• Void
o Conclusion was induced by threat/force in violation of principles of
international law embodied in the UN charter
o And if, at conclusion, it was in conflict w/ a peremptory norm of general
international law
• Termination/suspension
o Consequence of material breach, supervening impossibility, fundamental
change in circumstances, emergence of a new peremptory norm of
international law
• Bilateral treaty
o One of the parties is in material breach -> other party is entitled to terminate
or suspend its operation wholly/partly
• Supervening impossibility
o Performance of a treaty becomes impossible through the permanent
disappearance/destruction of an object that is indispensable for the
execution of a treaty
 o Party may terminate or withdraw
o Temporary impossibility -> suspend for duration
• Unforeseen changes of circumstances
o Parties are not entitled to invoke the change in circumstances as a ground
for terminating or withdrawing
• An existing treaty will be rendered void and terminated if it is in conflict with a
peremptory norm that has come into existence after conclusion of the treat

MUNCIPAL LAW OF SOUTH AFRICA

• Legislature + Executive are Constitutionally empowered to bring into legal

existence treaties between RSA and other states
• National executive is responsible for process of negotiating and signing the treaty
• Parliament is responsible for ratification y adopting a resolution of approval in both
the NA and the NCOP
o Legal effect – incorporated into municipal law
o After Parliament has adopted legislation to provide for the implementation
and enforcement of the treaty in the domestic law of SA
• Parliamentary approval is required before a notice of withdrawal from a treaty is
delivered to the relevant authority
• Some treaties are of such a nature that it is not subject to this procedure
• Self-executing treaties are automatically incorporated into municipal law
o Acquire domestic validity w/out parliamentary enactment
o S 132(4) of the Constitution
o Consistent w/ the Constitution + Acts of Parliament

CERD – CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL

DISCRIMINATION

• Adopted by UNGA in 1965, entered force in 1969

• Article 1 of the convention:
Racial
Discrimination
Any distinction, exclusion, restriction
or preference based on race, colour,
descent, national or ethnic origin w/
the purpose or effect of nullifying or
impairing the recognition, enjoyment
or exercise, on an equal footing, of
human rights in any field of public life,
including political, economic, social or
cultural life.

• This definition covers intentional discrimination, as well as practices, norms and

laws which although appearing neutral, their impact result in discrimination.
• Parties to the Convention agree:
o to the total elimination of discrimination in the enjoyment of economic,
social, cultural, civil and political rights
o to provide effective remedies against any acts of racial discrimination
through their respective state institutions and domestic tribunals
o not to engage in acts or practices of racial discrimination against individuals,
groups of persons or institutions and to ensure that public authorities and
institutions do likewise
o not to sponsor, defend or support racial discrimination by persons or
organisations
o to review government, national and local policies and to amend or repeal
laws and regulations which create or perpetuate racial discrimination
o to prohibit and put a stop to racial discrimination by persons, groups and
organisations
 o to encourage integration or multiracial organisations, movements and other
means of eliminating barriers between races, as well as to discourage
anything which tends to strengthen racial divisiveness.
• The Committee on the Elimination of Racial Discrimination was established under
the Convention to ensure that state parties to the CERD fulfil their obligations.

IN AFRICA

• State Reporting
o CERD was initially associated w/ apartheid, which meant African states
began to negate the existence of ethnicity based discrimination
o Reporting declined as it became clear that racial discrimination, under
CERD, went beyond the racial divide
o Libya in 2004
▪ Libya submitted a report, whereby the CRD Committee concluded
the discrepancy between the state’s assessment: the state asserts
itself to be ethnically homogenous, but there is information indicating
that various populations live in the country.
o Rwanda
▪ Rwanda had been one of the state parties with a good reporting
record
▪ The fourth report painted a favourable picture of a society where the
Hutus, Tutsis and the Twa were fully integrated in society and living
peacefully
▪ Their final reports prior to the 1994 genocide held that racial
discrimination was prohibited under their law
▪ Then the genocide of 1994 happened
▪ In the Committees concluding report post Rwanda’s 1999 report, the
Committee noted many issues, but remained silent about the role of
ethnicity in the law and practice of the post-genocide state
• Early warning measures and urgent procedure
o Whereby CERD adopts decisions and undertakes country visits
 o Sudan in 1998
▪ Committee highlighted serious concerns arising from ethnic and
racial dimension of the conflict between the southern and northern
regions of the country
▪ Called on the state to guarantee the freedom of religion of all
Sudanese
• Individual Communications
o Complaints by individuals may be considered re states that have made a
declaration under article 14
o Three declarations have come from African states
• Realisation
o CERD has not become a vehicle for the elimination of racial discrimination
in Africa
o African states were initially supportive in the drafting and adoption phases,
due to their common ideal to eradicate systematic racial discrimination
o However, African states failed to take CERD seriously on the domestic
terrain
o Few states complied fully w/ their primary visible duty under the Convention
o CERD committee has failed to address the root causes of ethnic conflict, as
well as respond to racially based violence in Africa

ICCPR – INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

• This treaty body addresses the ordinary responsibilities of the state to administer
justice & maintain the rule of law
o Requires states to ensure respect for human rights of all parties
involved, whether an accused, or a victim, or an aggrieved complainant
• This covenant also addresses the relationship between the state and the individual
• Civil and political rights must include:
 Freedom of thought,
Right to self- Right to life, liberty Freedom of conscience, religion,
determination and security movement peaceful assembly
and association

Freedom from
Freedom from torture
slavery, forced labour, Right to a fair and
and degrading Right to privacy
and arbitrary prompt trial
treatment/punishment
arrest/detention

• Art 2 of the covenant: “Each State Party to the Covenant undertakes to respect
and to ensure to all individuals, within its territory and subject to its jurisdiction, the
rights under the Covenant, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property,
birth or other status”
• Two optional protocols:
o Optional Protocol to the International Covenant on Civil and Political Rights
o Second Optional Protocol to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty
• Authorises state parties to restrict/suspect the enjoyment of certain rights (never
right to life, and freedom from torture and slavery) in times of official public
emergency which endangers the life of a nation.
o State must report the steps taken to the UN
• Provides for establishment of a Human Rights Committee to monitor the
implementation of Covenant provisions by state parties

MANDATE AND COMPOSITION

 • Monitoring body has four functions
o All state parties: HRC considers periodic reports by the states
o State parties under Art 41: HRC considers inter-state communications
o State parties under OPI: HRC considers individual communications against
those states
o State parties under OPII: HRC considers inter-state communications and
individual communications
• 18 members elected by states parties
• For a renewable term of 4 years
• Primary duty of ratifying states
o Present an initial report (within 2 years)
o And periodic reports (every 5 years thereafter)

IN AFRICA

• 51 African States have ratified the ICCPR by 2011

o Seven African states made reservations/interpretive declarations during
their ratification/accension to the ICCPR
• State reporting
o Non-compliancy of states is a major obstacle
o 17 African Sates had, by 2011, at least one report overdue for 10 years or
longer
o In 1991, the HRC requested special reports in exceptionally serious
circumstances, such as Rwanda in 1994
▪ Rwanda had submitted its initial report to the ICCPR in 1981, which
was examined in 1982
▪ Their last report was in 1987
o HRC started to address the problem of long-overdye reports
▪ Scheduling examination of the situation in a country in the absence
of a report, or representatives
▪ Emerging African democracies seem more likely to submit reports
 ▪ Reporting obligation becomes a vehicle for establishing and
guarding democratic institutions
▪ Examples of HRC concerns
• States have set up national human rights institutions, but they
do not allow them to operate effectively
• Individual complaints under the OPI
o 33/51 African states parties to the ICCPR were a party to the OPI
o Communications may only be submitted by victims / individuals
o By 2011, 83 findings were published against African states, with 70 of the
amounting to violations
o The DRC has the highest number of cases against it

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS (ICESCR)

• Adopted by UNGA in 1966 and entered force 1976

• Economic, social and cultural rights are fully recognised by the international
community and in international law
• Rights are designed to ensure the protection of people, based on the expectation
that people can enjoy rights, freedoms and social justice simultaneously
• Underlying principles of human rights
o Rights are indivisible and interdependent
o Violation of one right may well lead to the violation of another
• ICESCR provides for rights relating…
 to an adequate
to work in just and standard of living
to social protection
favourable conditions including clothing,
food and housing

to education and to
to the highest
the enjoyment of the
attainable standards
benefits of cultural
of physical and
freedom and
mental health
scientific progress

• Article 2 details legal obligations of state parties

o Must take positive steps to implement the rights under the Covenant, to the
maximum of their resources, to achieve the progressive realisation of the
rights recognised in the Covenant (through the adoption of domestic
legislation)
• Committee on Economic, Social and Cultural Rights
o Independent experts
o Monitors the implementation of the Covenant by state parties
o The Economic and Social Council delegates this responsibility to the
committee

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION

AGAINST WOMEN

• Adopted by UNGA in 1979, enforced in 1981

• Seeks to fight the evident discrimination against women
o Continues despite other international legal instruments
 State parties are required to grant freedoms and rights to women on the same
basis as men

States are required to take active steps to promote advancament of women as

a means of ensuring their maximum enjoyment of human rights
• States are encouraged to take positive initiatives such as preferrential treatment to advance and
promote the status of women

Also entail the removal of social and cultural patterns

• Through education which perpetuate stereotypes in gender roles at places of work, homes and
schools

o State parties to CEDAW agree t undertake measures, including:

Guarantee, through domestic

Adopt legislative/other
Integrate principles of the tribunals and state
measures to prohibit
equality of men and women institutions, the effective
discrimination against
into national legislation protection of women against
women
discrimination

o Committee on the Elimination of Discrimination against Women: oversees

implementation of the provisions of the Convention

CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR

DEGRADING TREATMENT OR PUNISHMENT

• CAT – adopted by the UNGA in 1984, entered force in 1987

• Definition of torture, article 1 of the Convention
o “For the purposes of this Convention, the term "torture" means any act by
which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating
 or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person
acting in an official capacity. It does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions”.
• Convention seeks to prevent acts of torture and to ensure that appropriate and
effective remedies are available to the victims and aggrieved parties in the event
of violations
• States are required to take positive preventative measures
o Promulgation of laws and regulations to promote respect of human rights
o Criminalisation of acts of torture
• The provision of effective remedy for the aggrieved parties or alleged victims is a
critical requirement on the part of the state.
• The Committee against Torture was established to monitor the implementation of
the provisions of the Convention.

CONVENTION ON THE RIGHTS OF THE CHILD

• Adopted by UNGA in 1989 and entered force 1990

o Consolidates all the children’s rights previously articulated in other
international human rights instruments
• Sets out non-negotiable and internationally recognised standards and principles in
one framework that all state parties must respect, protect and fulfil
• Extends the human rights recognised for adults to explicitly include children from
birth up to the age of 18
• Four core principles:
 • All childre are entitled to • Primary consideration
the same rights w/out • Interest of others should
discrimination of any not be the overriding
kind interest

1. Non-
2. Best interest
discrimination
of the child
and equality

3. Right to
4. Views of the
survival and
child
development

• Children have the right • State has a

to express their views on responsibility to ensure
all matters affecting the survival and
them and their opinions development of the child
should be given due to the maximum extent
weight in accordance w/ possible
their maturity and
evolving capacities

CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT

WORKERS AND MEMBERS OF THEIR FAMILIES

• The Convention was adopted by the UN General Assembly in 1990 and entered
into force in 2003.
• Under the Convention migrant workers are entitled to enjoy human rights
throughout their migration process (during preparation for migration, transit, stay
and return to their state of origin or habitual residence). It underscores the link
between migration and human rights, a policy issue that is increasingly generating
considerable attention worldwide.
• Migrant workers are entitled to working conditions equivalent to those extended to
nationals of the host state (such as trade union membership, emergency health
care, and social security entitlement).
• State parties have an obligation under the Convention to establish policies on
migration, exchange information with employers and assist migrant workers and
their families.
• The Convention imposes a reciprocal obligation on the migrant workers and their
families to comply with the laws of the host state.
 • It should be noted that the Convention distinguishes between legal and illegal
migrant workers. The Convention does not require equal treatment to be extended
to illegal migrant workers. It instead seeks to eliminate illegal migration and
employment of workers in unlawful circumstances.
• The Committee on Migrant Workers was established to monitor the implementation
of the Convention, which rests with the state parties (see article 72).

AFRICAN STATES IN THE FIRST UPR CYCLE – SMITH ARTICLE

• Background and Purpose:

o The article analyses African states' participation in the first cycle of the
Universal Periodic Review (UPR).
o Focuses on the solidarity of African states within (inter se) and beyond
(extra se) their regional group during the review process.
• Creation of the Human Rights Council and UPR:
o Human Rights Council was created in 2006, replacing the Commission on
Human Rights due to credibility issues.
o UPR is a unique peer-review mechanism where every UN member state's
human rights record is reviewed.
• Key Features of UPR:
o Review based on UN Charter, Universal Declaration of Human Rights,
treaty obligations, and voluntary commitments.
o Aimed at promoting human rights, capacity-building, and cooperation.
o Involves national reports, UN documentation, and NGO/stakeholder
submissions.
• African States’ Participation:
o African states were actively involved in their own reviews but varied
significantly in reviewing others.
o Some African states (e.g., Algeria, South Africa, Ghana, Nigeria)
participated extensively; others (e.g., Sierra Leone, Malawi) participated
minimally due to resource constraints.
• Solidarity and Regional Trends:
 o African states tended to make more positive or neutral comments, often
encouraging and supportive rather than critical.
o Strong intra-regional solidarity observed; limited engagement with
reviewing states outside Africa.
o African states were more critical when reviewing non-African states,
particularly Western states.
• Positive Bias and Politicisation:
o Reviews among African states were often positive, possibly due to a
preference for non-confrontational diplomacy.
o Some evidence of politicisation where states protected allies and avoided
condemning human rights abuses.
• Acceptance of Recommendations:
o African states were more likely to accept recommendations from fellow
African states.
o Recommendations from African states tended to be less demanding
compared to those from Western states.
• Challenges Noted:
o Capacity and technical resource limitations.
o Issues like poverty, post-conflict recovery, children’s rights, and HIV/AIDS
were common concerns.
o Contentious topics like LGBTI rights and death penalty attracted debate,
especially when raised by Western states.
• Conclusions:
o African states engaged positively but cautiously with the UPR process.
o Their preference for a soft, supportive approach aligned with UPR’s
intended spirit of constructive dialogue.
o Future cycles might see greater substantive engagement as African states
build capacity and confidence.
TOPIC 4 – AFRICAN REGIONAL ARCHITECTURE AND HUMAN RIGHTS

EVOLUTION OF THE AU FROM THE OAU

• May 1963: founding Charter established OAU

o Signed in Ethiopia
o 32 heads of independent African states
o Did not impose express obligations on any state party for the protection of
human rights
o Provided one of the purposes of the organisation as being to promote
international cooperation, having due regard to the Charter of the UN
and the Universal Declaration of Human Rights
o OAU vociferously addressed flagrant abuses of human rights (racial
discrimination, colonisation, refugee crises and environmental protection)
• There was glaring evidence of an absence of pressure on some African autocratic
leaders who visited untold human rights abuses upon their citizens
• OAU lasted from 1963-1999 -> succeeded by the AU
• July 1979: OAU Assembly adopts a resolution calling upon a committee of experts
to draft an African Charter on Human and People’s Rights
o Provide for mechanisms to provide and protect the rights enshrined in the
Charter
• 1981, Kenya
o This draft Charter was unanimously adopted by the OAU Heads of State
and Government in 1981
o Came into force in 1986
o Inaugurated in Ethiopia in 1987
• Establishment of AU, 1999
o OAU Heads of State and Government issued the Sirte Declaration
o Calling for establishment of the AU
o Launched in 2002 in South Africa
o Consensus among the leaders for a greater need to refocus away from
decolonisation to greater integration and development
AFRICAN UNION AND THE AFRICAN HUMAN RIGHTS LAW

• Aims: promote and protect human and peoples’ rights according to the African
Charter on Human and People’s Rights and other relevant human rights
instruments
• “DETERMINED to promote and protect human and peoples’ rights, consolidate
democratic institutions and culture, and to ensure good governance and the rule
of law.”
• African Union Commission -> secretariat of the AU
o Elected chairperson
o Commissioners (6)
o Support staff
• Issues dealt with:
o African Court on Human and Peoples’ Rights (AfCHPR)
o African Commission on Human and Peoples’ Rights (ACHPR)
o AU Commission on International Law (AUCIL)
o Extraordinary African Chambers (EAC)
o AU Advisory Board on Corruption (AUABC)
o African Committee of Experts on the Rights and Welfare of the Child.

LEGISLATIVE AND EXECUTIVE ROLES OF THE AU

• Assembly of Heads of State and Government

o Supreme policy and decision-making organ
o Membership: heads of state and government of all member states
• Executive Council
o Foreign ministers or authorities as are designated by state governments
o Responsible for coordination and decision making on policies in areas of
common interest to the member states
o Council is responsible to the Assembly
o Monitors implementation of policies formulated by the Assembly and
considers issues referred to it
 • African commission
o Exercises a protection mandate
o Also operates as quasi-judicial mechanism that receives complaints, which
it hears and makes determination on

CIVIL SOCIETY AND HUMAN RIGHTS IN AFRICA

ROLE OF CIVIL SOCIETY IN PROMOTION OF HUMAN RIGHTS

• The AU structure is designed to promote participation of African civil society

o Through ECOSOCC and Pan-African parliament
• Civil Society Organisations may organise panel discussions for the Forum on
human rights issues that provides opportunity for sharing ideas and experiences
from across Africa
• Highlights the current human rights situation on the ground in the territories of the
different state parties
• Forum deliberations provide an avenue for the CSO’s to consolidate their concerns
on human rights issues
o In turn present their resolutions/recommendations to the AU

CIVIL SOCIETY

• In most cases the AC would adopt in its resolutions the recommendations

submitted by the CSOs Forum
• Networking by the CSO’s on the side lines of the AU sessions have invariably
generated very successful advocacy ideas
• Where the state parties have declined to accede to requests by the AC to formally
visit their country on inquiry missions
o CSO’s have somehow found a way of inviting the AU commissioners to
attend conferences and other activities to address pressing issues more
informally
o Angola and Burundi provide successful examples
 • CSO’s are pivotal in their contribution to the implementation of the legal
instruments of the AU
• Have created a general awareness of the rights of the African people
• CSO’s play a crucial role by participating in the decision-making processes of the
AU and its organs

CSO PROJECTS AND ACTIVITIES

• Number of important projects and interventions of CSO to support mandate of AU

within African human rights systems
o Continue to apply AU mechanisms for promotion and protection of human
rights
o Facilitate the transition from African Human Rights standards to practice
• Civil societies activities
o Training of journalists
o Media strategies
o Capacity development
o CSOs advocacy campaigns at national, regional and continental level
o Generating public awareness and dissemination of relevant human rights
educational info
• There is a dedicated Civil Society division of the AU
o Core mandate is to mainstream contributions of civil society through all
aspects of AU policies, principles and programmes
TOPIC 5: SUBSTANTIVE HUMAN RIGHTS NORMS IN THE AFRICAN
REGIONAL SYSTEM

THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS

• African Charter on Human and Peoples’ Rights

o Also known as the: Banjul Charter
• Adopted June 1981, came into force October 1986
• Principal human rights instrument in Africa
• Principal features:

Recognises the indivisibility of all 'generations' rights

Collective rights, environmental rights and socio-economic rights are al essential componenets of African human rights and
are all justiciable

Charter does not contain a derogation clause

No limitations on human rights and freedoms enshrined in the Charter can be justified by emergencies or any special
circumstances

Charter recognises peoples' rights to self-determination, as well as rights to development and free
disposal of natural resources

Charter imposes duties on both the individuals and the states

Enjoyment of rights and freedom implies the performance of duties on the part of everyone

MANDATE

1. Promotion of human and peoples’ rights

a. Sensitisation, public mobilisation, information dissemination
b. Via seminars, symposia, conferences and missions
2. Protection of human and peoples’ rights
a. Commission ensures protection of human and peoples’ rights through its
communication procedure, friendly settlement of disputes, state reporting,
 urgent appeals and other activities of special rapporteurs and working groups
and missions
3. Interpretation of the Charter
a. Mandated to interpret provisions upon a request by a state party, organs of the
AU or individuals
b. No organ of the AU has referred yet
c. Handful of NGO’s have approached
d. Commission has also adopted many resolutions expounding upon the
provisions of the charter

THREE GENERATIONS OF RIGHTS IN THE AFRICAN CHARTER ON HUMAN

AND PEOPLES’ RIGHTS

BACKGROUND

• Political upheavals and the social revolutions of the 17 th and 18th century created
the awareness of the various human rights
• Traditional categorisation of the three generations of rights traces the chronological
evolution of human rights as an echo to the three-dimensional call of the French
revolution
 First generation - Liberte Second generation - Third generation -
• Freedoms Egalite Fraternite
• Civil and political rights • Equality • Solidarity
• Demanding immediate • Socio-economic rights • Collective Rights
application • Implemented progressively in
the long term
• Been criticised as unsustainable

OBLIGATIONS OF THE STATE

• The states have four cardinal tiers of obligations

• Obligation to respect rights of its citizens and residents
o Refraining from interfering w/ their enjoyment of those rights
o By not carrying out unlawful eviction
o This is a negative obligation
• Obligation to protect residents
o From unjustified intrusions by 3rd parties
o State takes initiative to legislate or to take executive actions to achieve
protection
• Obligation to fulfil human rights entails the state taking positive measures to
guarantee the direct enjoyment of a right
• State has an obligation to promote human rights by disseminating information
o Creating an enabling environment for education and awareness about
these rights among the populace
FIRST GENERATION: CIVIL AND POLITICAL RIGHTS

• Shaped by…
o English revolution of 1688, which recognised the supremacy of parliament
o French declaration of rights of man and citizen of 1789
o American bill of rights of 1791
• Influenced by the new thinking
o Political sovereignty rests w/ the people instead of the monarch
o Government is representative rather than unilateral and absolute
o Government is the result of a social contract and general will of the people
• Idea of people was re-conceptualised to be defined to rest w/ the people rather
than the monarch
• This generation laid significant emphasis on civil and political rights
• Seeks to protect the individual against arbitrary state actions
• These are traditional rights of the individual against the state

Freedom of speech Right to life Right to vote and Freedom of religion Freedom from
and expression contest elections discrimination

Right to equality Non-discrimination Right to freedom of Right to assemble Right to freedom of

before the law rights association movement

• Voting rights assure citizen participation in government directly through their

elected representatives
• Reflects the laissez-faire doctrine of non-interference
• Other rights also contained in article 12 also fall into this category
 o Right to asylum, right to leave and return to an individual’s own country and
the prohibition of mass expulsion of non-nationals
• Right to liberty and to security of person, the rights related to due process
• A list of civil and political rights can be found in the 1966 ICCPR and the ECHR

SECOND GENERATION: SOCIAL, ECONOMIC AND CULTURAL RIGHTS

• Rights are grounded on the status of a citizen as a member of the society

• Social, economic and cultural rights that are grounded on the status of a citizen as
a member of society
• These rights evolved w/ the advent of industrialisation and the growth of capitalism
• There was need to address the emerging income inequalities and class
stratification
• These rights are positive rights because intervention of affirmative action by state
is critical for these rights to be realised
• They include:

Right to work, Right to property and Right to education Right to reasonable

education and cultural decent housing and fair remuneration
participation

Right to collective Right to social Right to adequate Right to participate in

bargaining security and affordable health the individual's
care cultural life of choice

THIRD GENERATION: COLLECTIVE RIGHTS

 • Collective approach > individual centred approach of other two generations
• Right to peace, right to development, right to environment, and right to self-
determination
• Emerging transactional threats such as cross-border terrorism and the climate
change influenced the development of collective rights to peace and environment
• Era of decolonisation in the 1960’s gave rise to the quest for the right to self-
determination
o Commonality among the ex-colonies which reflected in their collective and
a shared identity
• Collective sense of solidarity seeks to bind all humankind together to realise these
human rights
o Solidarity rights
• Need to rise against the existing imbalance in the international world order

DEPARTURE FROM TRADITIONAL CLASSIFICATION OF RIGHTS?

• Critique: all human rights can ascribe to both individual and collective dimensions
at the same time
• African Charter makes provision for several rights that are not enshrined in other
international human rights legal instruments
• These additional rights include
o Rights of the disabled and the aged
o Family rights
o Rights of women and children
o Right to a satisfactory environment
o Right to development
o Right to peace
o Right of an individual to dispose of their natural resources and wealth
• Been argued that, under the African Charter, the categorisation of rights should be
as follows:

Civil and political rights

 • The importance of the right to freedom of expression stands prominent and cannot
be gainsaid in the context of Africa
o Others: right to equality before the law, non-discrimination rights, right to
freedom of association, right to assemble, right to freedom of movement
• Other rights also fall in this category (art 12)
o Right to asylum
o Right to leave and return to an individual’s own country
o Prohibition of mass expulsion of non-nationals
• Right to liberty and to security of the person (art 6) the rights related to due process
(art 7)
• Political rights include
o Right of every citizen to participate freely in the government of their country
(art 13)
o Right to self-determination (art 20)

Developmental and environmental rights

• Right to freely dispose of wealth and natural resources (art 21)

• Right to a sustainable and healthy environment
• African Charter is the first regional human rights instrument to recognise the critical
link between human rights and environmental protection
o Articulates the linkage between development and environment

Economic, social, survival and cultural rights

• Economic rights seeks to harness the natural resources to maximise the

satisfaction of economic needs
o Right to property (art 11)
o Right to work under equitable and satisfactory conditions
o Right to equal pay for equal work (art 1t5)
• Social rights are protected for survival and also to help secure a decent livelihood
and a reasonable standard of living
 o Object of social rights is to guarantee satisfaction of human needs (food,
shelter, health)
• Survival rights
o Some of the social rights are necessary for human survival
o African Charter provides for only a few of the social and survival rights
▪ Right to enjoy the best attainable state of physical and mental health
(art 16)
▪ Right to education (art 17(1))
▪ Right to family rights (art 18)
o Charter does not mention social and survival rights like medical care, food,
housing and clothing
• Cultural rights
o Right to take part in one’s cultural life, the right to enjoy and share the arts
and to share in the benefits of scientific advancement, and the right to
benefit from the protection of moral and material interests resulting from any
scientific, literary or artistic production of which one is the author
▪ Language rights should also belong in this category
o African Charter provides for the right of every individual to freely undertake
activities in the culture of their community
▪ Provides further for the rights of all peoples to their cultural
development, w/ due regard to their freedom and identity an in equal
enjoyment of the common heritage of mankind (art 22(1))
• Art 8: guarantees freedom of conscience and the profession and free practice of
religion

AFRICAN CHILDREN’S CHARTER

• Adopted July 1999 and entered force November 1999

• Charter was inspired by numerous regional concerns not covered or adequately
articulated under the 1981 African Charter
o Child trafficking
o Participation of child soldiers in armed conflict
 o Harmful cultural and traditional practices
• Children’s Charter incorporates the universal values, articulated in the UNCRC in
the context of the African culture

AFRICAN CHILD AND CRC

• Charter provides a cultural context in articulating the rights and welfare of the child
• Child is defined as ‘every human being under 18’
o No limitations, conditions or exceptions
o Unlike the CRC
• Primary consideration in determining policies, laws and all actions affecting the
child is the best interest of the child
• Every child is entitled, as of right, to a name from time of birth and the right to
acquire a nationality
o Child has a right to be registered immediately after birth
o States are obligated to ensure that their constitutions provide that a child
shall acquire their nationality when they have been born in a particular state
and no other state grants nationality
• States have an obligation to take all necessary measures to eliminate harmful
social and cultural practices affecting the dignity, welfare, normal growth and
development of the child
o Child marriage is prohibited
o Recommends minimum age of marriage be stipulated as 18 years in
domestic legislation

AFRICAN CHILD

• A child shall not take direct part in hostilities or armed conflict or be recruited into
the armed forces
o Charter is stricter on this than other regional or international conventions on
children
• A child who is considered a refugee or who is seeking refugee status is entitled to
receive appropriate protection and humanitarian assistance
 • Special needs of children should be accorded highest priority where they are living
under apartheid or discriminatory regimes
o Children living in states subject to military destabilisation
o Material assistance should be provided to such children
• Assignment of duties to an African child to work for family cohesion, respect of
parents, elders at all times, to preserve and strengthen the African cultural values,
are subject to the age and ability of each child

PROTOCOL TO AFRICAN WOMEN’S CHARTER

• Protocol was adopted in July 2003 and entered force on November 2005
• Protocol guarantees comprehensive rights to African women
• Boosts the protection of women’s rights
• Initiative demonstrates the commitment of the AU to eliminate injustices against
African women and ensure gender equality

WOMEN’S RIGHTS IN POLITICS

Upholds the right to
dignity for women
the rights of women...
Protocol provides for

To participate in the Provisions that deals

political process w/ issues of special
To enhanced concern
autonomy w.r.t. Special protection of
decisions on their elderly women
reproductive health Special protection of
Political and social women w/ disabilities
equality w/ men Special protection of
women in distress

VIOLATIONS OF WOMEN’S RIGHTS

 • Rampant egregious violations of the rights of women prompted the intervention by
way of the Protocol
• Most of these violations are still rampant in African communities
• Violations such as
o Child marriage
o Sexual violations
o Gender-based discrimination
o Certain cultural practices such as FGM
o Violence against women

IMPLEMENTATION

• Overseen by the African Commission on Human and Peoples’ Rights

• Monitoring process was to be undertaken by the Special Rapporteur on the Rights
of Women in Africa
• Absence of robust monitoring and evaluation mechanisms has tended to render
ineffective the provisions of the protocol
TOPIC 6: AFRICAN CHILDREN’S COMMITTEE

ESTABLISHMENT

• Established pursuant to the African Charter on the Rights and Welfare of the Child
• Adopted in 1990 and enforced November 1999
• Committee
o 11 members
o Nominated by state parties
o Elected by the AU Assembly of Heads of States and Government
o Persons of integrity, impartiality, high moral standing, and w/ demonstrated
competence in matters concerning the rights and welfare of the child
• Committee members are elected for a term of five years and are eligible for re-
election only once
• Elected members serve in their personal capacity

MANDATE OF THE AFRICAN CHILDREN’S COMMITTEE

• Collects and • And ensuring the • The provisions of the

Interpretation
Monitoring implementation
Protection and promotion of enshrined rights

documents protection of the rights Charter at he request

information enshrined in the of a State party, an
• Assess situation on Charter institutions of the AU
Africa's problems re or any other persn or
children's rights institution recognised
• Organises meetings
• Encourages national
and local institutions
• Gives views and
makes appropriate
recommendations
• Formulates principles
and rules
• Cooperates w/ other
African, regional and
international
organisations and
institutions
COMPLAINTS AND DECISIONS PROCESSES

• Committee receives communications concerning any issue covered by the

provisions of the Charter from
o Individuals
o Groups
o CSO’s (recognised by the AU)
o Member state
o UN
• Complaints are ordinarily against state parties
• Unique feature
o Facilitation of legal aid upon request of a qualifying complainant / at
Committee’s own initiative in the interest of justice
o Granted where it is established that the complainant has insufficient means
to finance all / part of the costs entailed in the process
o Facilitated on the basis that it ensures equality between the parties before
the committee
• Admissibility criteria -> determines if a complaint qualifies to be entertained under
the committee’s jurisdiction
o Must be in consonance w/ the provisions of the African Children’s Charter
and the AU Constitutive Act
o Must have exhausted available and accessible local remedies at domestic
level prior to submission
o Dispute must not form a subject matter pending for determination or
settlement or previously settled by another international body or tribunal or
being dealt w/ in accordance w/ the UN Charter or any other AU legal
instrument
• Jurisdiction of the Committee depends on the age of the child at the time of the
communication about the alleged violation against such a child
 o Committee remains responsible for the jurisdiction over outstanding
proceedings concerning a particular child even after they have attained the
age of 18
• Parties to a dispute are at liberty to reach an amicable settlement any time before
committee makes its final determination on the matter on the merits of the case
o Terms of amicable settlement reached must take account of respect for the
rights and welfare of the child under the Charter
• Committee has competence by virtue of its mandate to authoritatively interpret the
Charter, and issue such an interpretation which may have the effect of introducing
obligations upon state parties to the Charter

AFRICAN CHILDREN’S COMMITTEE AND CIVIL SOCIETY

• CSO’s have supported the activities of the Committee over the years in a number
of ways
• Grants observer status to CSO’s
o CSO’s w/ observer status may, on request, provide information to the
Committee w/ complementary information that may help it in assessing
state reports
• CSO’s ordinarily organise forum sessions preceding committee sessions
• Committee has developed guidelines for CSO’s to provide complementary info that
helps in assessing state reports
TOPIC 7: STRUCTURE OF THE AFRICAN COMMISSION ON HUMAN AND
PEOPLE’S RIGHTS

STRUCTURE OF THE COMMISSION

Inaugurated in 1987 Established under the

• Established to oversee & African Charter
interpret the Banjul Charter • Purpose: promoting and
• Which is a human rights legal protecting the rights
instrument enshrined in the Charter

Consists of 11 No two nationals of a

commissioners elected state party may serve at
for a 6-year term, same time
eligible for re-election • Recognition of need for an
indefinitely equitable geographical
balance in representation
• AU Assembly elects
members from experts
nominated by state parties
• Serve in personal capacity
• Work on a part-time basis

AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS AND HUMAN

RIGHTS LAW

• Commission convenes two ordinary sessions in a year

o May invite civil society to participate in its sessions on various matters
 o Including human rights issues

Three cardinal functions of

Protection of human
and peoples' rights

ACHPR
Promotion of human
and peoples' rights

Interpretation of the
AU Charter

• Communications procedure
o Individuals, organisations and states may submit complaints to the
commission on alleged violations of human rights by a state party to the
Charter
o Commission would then consider a complaint and make an appropriate
recommendation to the AU Assembly and to the state party
• State parties are required by the Charter to submit a biennial report on legislative
and other measures they have undertaken to give effect to the rights and freedoms
enshrined in the AU Charter

MANDATE OF THE AFRICAN COMMISSION

 Protective mandate Promotional mandate Charter interpretation
• Commission ensures • Conducting •Interpret the provisions of
the protection of human sensitisation, public the Charter
and peoples' rights mobilisation and •Upon request by
• Communication information individuals, AU organs or a
dissemination state party
procedure, friendly
settlement of disputes, • Via conferences, •Commission has adopted a
number of resolutions
state reporting, urgent symposia, seminars and expounding on the
appeals and other missions provisions of the Charter
activities of special •In addition, the
rapporteurs and working Commission may perform
groups/missions any other function/mandate
as may be entrusted by the
AU Assembly from time to
time

COMMUNICATIONS PROCEDURE UNDER THE CHARTER

• Communications procedure = channel through which complaints may be

presented to the Commission
• Complaints may be taken to the Commission by…
o Individual
o Organisation
o State party
• Individual/organisation may submit a complaint to the Commission
o Set out the allegations of violations of one/more rights
o By a state party
• A state party may submit a complaint
o Against another state party
o Set out the allegations of violations under the Charter
• ACHPR considers the complaints it receives
o Makes appropriate recommendations to the Assembly and concerned state
party
o Measures to be taken to redress the complained of violations
• ACHPR may encourage the option of amicable settlement of the dispute at any
stage of the proceedings
 o Before final determination
o Matter gets resolved w/out having to go through entire Charter procedure
• ACHPR may invoke the provisional measures under rule 98 of the Commission’s
Rules of Procedure (2010)
o Emergency situations -> life of a victim is in imminent danger
o May request state party concerned to delay any possible prejudicial action
pending final determination of the matter
o Meant to prevent occasioning irreparable harm to the alleged victim of the
alleged violation under the Charter
• Each state party is required, under the Charter, to submit a biennial report to the
Commission
o Sets out legislative and other measures taken to give effect to the rights and
freedoms enshrined in the Charter
o Commission then makes it recommendations thereon
o Submits a report to the ordinary sessions of the AU Assembly

CONFIDENTIALITY AND THE IMPLEMENTATION OF THE DECISIONS OF

THE AFRICAN COMMISSION ON HUMAN AND PEOPLS’ RIGHTS – MURRAY
ARTICLE

• Criticism of Confidentiality:
o The African Commission is criticized for overly broad confidentiality under
Article 59 of the African Charter, leading to a "shroud of secrecy" post-
decision.
• Impact on Implementation:
o Visibility of decisions improves the likelihood of state implementation.
o Confidentiality after decisions hampers awareness among victims, civil
society, and the public.
• Article 59 Misinterpretation:
o Originally intended to keep communications confidential before Assembly
approval.
 o Now incorrectly extended by default to post-decision follow-up and
implementation processes.
• Comparative Systems:
o European System: Publishes state compliance measures.
o Inter-American System: Partial confidentiality but publishes key reports.
o UN Treaty Bodies: Publish final decisions but struggle with follow-up
transparency.
• Reasons to Prioritize Publicity:
o Publicity supports victims’ right to truth.
o Awareness drives compliance through political and public pressure.
o Transparency strengthens the legitimacy of the African Commission.
• Challenges Identified:
o Lack of clear African Commission policy on when information becomes
public.
o Poor state-level knowledge about the African Commission’s existence and
function.
o Weak internal national mechanisms to coordinate and report on
implementation.
• Problems with Current Practices:
o Inconsistent reporting by states.
o Information on implementation scattered or hidden.
o African Commission lacks a consistent system for monitoring or publicizing
compliance.
o Provisional measures are not made public.
o Hearings on implementation are rare, confusing, and often private by
default.
• Recommendations:
o Improve the visibility of decisions by:
▪ Publishing them consistently on an updated website.
▪ Requiring states to publish decisions nationally (newspapers, official
websites).
 ▪ Publicize information on state compliance efforts unless there’s a
strong reason for confidentiality.
▪ Establish criteria for holding public hearings and referring cases to
the African Court.
▪ Develop a database tracking the status of implementation of each
decision.
▪ Clarify the procedures around technical assistance and requests for
clarification from states.
• Conclusion:
o A blanket approach to confidentiality post-decision is inappropriate.
o Greater transparency would increase the likelihood of implementation and
reinforce the African Commission’s credibility and effectiveness.

PRIVATE PROSECUTION AS A LOCAL REMEDY BEFORE THE AFRICAN

COMMISSION ON HUMAN AND PEOPLES’ RIGHTS – MUJUZI ARTICLE

Background:

• Article 56(5) of the African Charter requires exhaustion of local remedies before a
communication is admitted by the African Commission.

• Emerging issue: whether private prosecution is a remedy that must be exhausted

first.

Key Jurisprudence of the African Commission:

• Zimbabwe Human Rights NGO Forum v Zimbabwe:

o The state argued private prosecution was available.

o Commission rejected this, stressing the state’s duty to prosecute, especially

in cases of massive human rights violations.

• Hadi v Sudan:

o Immunity for police officers made private prosecution ineffective.

 o Failure to lift immunity blocked access to remedies.

• Al-Asad v Djibouti:

o Private prosecution issue raised, but Commission did not address it.

Important Points from African Commission Practice:

• In cases of widespread state-sanctioned human rights violations, private

prosecution is not an effective remedy.

• Private prosecution requires assessment of national laws and real-world

application.

• The Commission has not yet ruled private prosecution as an effective remedy
needing exhaustion.

Comparative Analysis with Other International Bodies:

• UN Human Rights Committee:

o Private prosecution must be effective and available; states must first ensure
effective public remedies.

• Committee Against Torture:

o Lack of investigation by states blocks effective private prosecution.

• Inter-American Court and Commission:

o Emphasizes that the state holds the duty to prosecute serious rights
violations.

o Private prosecutions generally not required when public prosecution is the

norm.

• European Court of Human Rights:

o Private prosecution considered only if it is capable of providing redress.

 o Court assesses practical effectiveness, past examples, and legal
framework.

Recommendations for the African Commission:

• Examine:

o Locus standi: who may initiate private prosecutions (individuals, NGOs,

etc.).

o Funding: the affordability and accessibility of private prosecutions.

o Prosecutor intervention: whether public prosecutors often take over and

discontinue private prosecutions.

• Private prosecutions are unlikely to be effective when:

o Victims cannot afford them.

o Prosecutors are likely to sabotage them.

o Public prosecution is required by law for certain crimes.

Conclusion:

• Private prosecution should not generally be expected before approaching the

Commission, especially where state actors are implicated.

• The African Commission should develop clear criteria to assess when private
prosecutions might qualify as effective domestic remedies.

REVISITING THE NORMATIVE FRAMEWORK OF THE ACHPR IN THE

CONTEXT OF EVIDENCE OBTAINED THROUGH HUMAN RIGHTS
VIOLATIONS: HAS IT SERVED ITS PURPOSE? – NANIMA ARTICLE

Key Themes:

1. Efficacy of the African Commission's Normative Framework: The central

theme is the examination of whether the existing normative framework of the
 African Commission on Human and Peoples’ Rights (African Commission)
effectively addresses the issue of evidence obtained through human rights
violations.

2. Development of Normative Frameworks: The article explores how normative

frameworks develop, both intentionally (e.g., the African Women's Protocol) and
organically through the evolution of thematic concepts (the focus of this article).

3. Focus on Fair Trial Rights: The right to a fair trial under Article 7 of the African
Charter on Human and Peoples’ Rights (African Charter) is presented as the
foundation for the normative developments discussed, although it is considered
inadequate on its own regarding the admissibility of evidence obtained through
violations.

4. Evolution of Specific Normative Instruments: The briefing analyzes four key

normative developments between 1992 and 2003: the Tunis Resolution, the Dakar
Declaration, the Robben Island Guidelines, and the Fair Trial Principles.

5. Theoretical Framework (Liberal Theory): The article uses the liberal school of
thought in international relations theory to understand the emergence and
characteristics of norms at the regional level, emphasizing the influence of
domestic actors on state behaviour.

6. Admissibility of Evidence: A core concern is the question of whether evidence

obtained through human rights violations should be admissible in legal
proceedings.

7. Limitations of Early Norms: The article highlights how earlier norms (Tunis
Resolution and Dakar Declaration) focused on the general right to a fair trial but
failed to specifically address evidence obtained through human rights violations.

8. Specificity in Later Norms: Later norms, particularly the Robben Island

Guidelines and the Fair Trial Principles, are seen as more specific in addressing
the issue of evidence obtained through violations, with the Principles being the
most comprehensive.
Most Important Ideas and Facts:

• African Commission's Mandate: The African Commission's mandate,

established by Article 30 of the African Charter, includes the promotion and
protection of human rights. Article 45(1)(b) allows the Commission to formulate
principles and rules to solve legal problems related to human rights, which includes
addressing issues of evidence obtained through human rights violations.

• Normative Framework Development: Normative frameworks can be

intentionally created (like the African Women's Protocol) or develop organically
through the refinement of broader concepts into specific norms. The article focuses
on the latter.

• Inadequacy of Article 7: Article 7 of the African Charter on the right to a fair trial
was perceived as inadequate in dealing with evidence obtained through human
rights violations, prompting the development of "soft law measures."

• Liberal Theory as Explanatory Framework: The liberal theory, with its emphasis
on domestic actors influencing state behaviour and the pursuit of mutual benefits
through international cooperation, is used to explain the creation of norms within
the African human rights system. Key tenets include individuals and private groups
as fundamental actors, states representing domestic society's interests, and
interdependent state preferences shaping behaviour.

• Tunis Resolution (1992): While recognizing the importance of the right to a fair
trial, the Tunis Resolution did not specifically address evidence obtained through
human rights violations. It focused on informing persons of remedies and
procedures and providing legal aid, but lacked guidance on the exclusion of
impugned evidence.

• Dakar Declaration (1999): Developed with input from civil society, academics,
and lawyers, the Dakar Declaration also focused on the general right to a fair trial.
It emphasized eliminating certain practices (like torture of suspects), respecting
the rule of law, ensuring judicial independence, and regulating military and special
 tribunals. However, it lacked direct provisions on evidence obtained through
human rights violations.

• Robben Island Guidelines (2002): These guidelines marked a significant shift by

specifically addressing evidence obtained through torture, cruel, inhuman and
degrading treatment or punishment. Guideline 29 explicitly states that
statements obtained through these methods should not be admissible as evidence,
except against the perpetrators. However, their focus is limited to torture.

• Fair Trial Principles (2003): These principles represent the most comprehensive
normative development discussed. They were drafted with significant involvement
from domestic actors. Key aspects include:

o Right to an Effective Remedy (Principle C): This is interpreted as

widening the scope of remedies to include the exclusion of evidence
obtained through violations.

o Role of Prosecutors (Principle F): Prosecutors are mandated to refuse

the use of evidence obtained through unlawful methods that constitute
grave human rights violations (including torture and other abuses), unless
used against the perpetrators.

o Collection of Evidence (Principle M): Principles related to humane

treatment and respect for dignity during detention (M(7)(a)-(f)) suggest that
evidence obtained when dignity is violated may be questionable.

o Coercion and Undue Influence (Principle N): Principle N(6)(d)(1)

explicitly states that any confession or evidence obtained by any form of
coercion or force is inadmissible. This extends beyond torture to other forms
of improperly obtained evidence.

• The Luanda Guidelines (2014): While not evaluated in depth due to their recency,
the article notes that these guidelines further address the inadmissibility of
evidence obtained in violation of confidentiality (Article 8(d)(ii)) and the importance
of legal counsel during confession recording (Article 9(a)(i)-(ii)).
 • Shift in Normative Focus: The period between 2002 and 2003 marked a
significant change, moving from a general focus on the right to a fair trial to
specifically addressing evidence obtained through human rights violations in the
Robben Island Guidelines and the Fair Trial Principles.

• Recommendations: The article suggests the need for mass sensitization and
dissemination of information on rights (aligned with liberal theory), a study on the
Commission's jurisprudence on this topic, and drawing insights from domestic,
regional, and international systems to improve future normative frameworks.

Conclusion (from source):

• Quote: "The current normative structure was developed on the standard of the right
to a fair trial... The general development of the right to a fair trial is evident in the
failure by the Tunis Resolution and the Dakar Declaration to deal with the
admission of evidence obtained through human rights violations."

• Quote: "The normative fortunes of the African Commission changed with the
development of the Robben Island Guidelines, which deal with this impugned
evidence but limited it to evidence obtained through torture. The Fair Trial
Principles that were adopted a year later deal with evidence obtained through
human rights violations and improperly-obtained evidence."

In summary, the article argues that while earlier African Commission norms provided a
general framework for the right to a fair trial, they were ineffective in specifically
addressing evidence obtained through human rights violations. The later Robben Island
Guidelines and particularly the Fair Trial Principles marked a progressive development
by providing a more nuanced and comprehensive normative framework for dealing with
such evidence. However, the practical impact and application of these later norms by the
African Commission in its jurisprudence require further study.

CIRCUMVENTING OBSTACLES TO THE IMPLEMENTATION OF

RECOMMENDATIONS BY THE AFRICAN COMMISSION ON HUMAN AND
PEOPLES’ RIGHTS – OKOLOISE ARTICLE
• The article focuses on the challenges associated with the African Commission's
seemingly 'non-binding' recommendations and their perceived effect on its
mandate to promote and protect human rights in Africa. It revisits the long-standing
debate on the Commission's quasi-judicial character and its ability to effectively
monitor states' compliance.
• A key obstacle is the never-ending deficit of state adherence to African
Commission recommendations. States often defy the Commission, leading to a
compliance argument that scrutinizes the relationship between the Commission,
the African Charter, and state parties.
• The African Commission is the principal regional human rights body in Africa,
established under the African Charter. Its mandate includes promoting, protecting,
and interpreting the Charter provisions.
• Two major limitations affect the Commission's effective discharge of its mandate:
its quasi-judicial status, meaning its decisions are understood not to be binding
on state parties, and its current bureaucratic structure and functioning, which
hinders its effective use of the African Court to hold non-compliant states
accountable.
• Non-compliance manifests in various ways, including outright failure to undertake
law reform and refusal to implement recommendations. Despite nearly 100%
ratification of the African Charter, this has not necessarily translated into
compliance.
• States' rigid attachment to sovereignty and non-interference is seen as a
hindrance. The blatant disregard for the Commission without consequences
exacerbates a culture of impunity.
• The Commission has evolved as an apparatus for entrenching human rights and
democratisation, "bending the arm" of repressive states through its promotional,
protective, and interpretive authority. It has ruled in high-profile cases, challenging
state sovereignty and addressing issues previously considered internal affairs.
• The African Commission's work is considered essential for the effective
observance of human rights in Africa, but the primary responsibility for promotion
and protection lies with the state.
• The African Charter's Article 1 obliges state parties to recognise the rights and
freedoms enshrined and undertake legislative and other measures to give
them effect. This is a prescriptive obligation reinforced by the duty to submit
periodic reports.
• The African Commission probes human rights issues and makes
recommendations to governments that require national-level implementation.
These recommendations arise from considering state reports (resulting in
Concluding Observations), inquiries (reports), and communications (decisions and
recommendations).
• While states are not automatically bound by the plain text of the Charter to
implement the Commission's recommendations, their commitment under
Article 1 is arguably complemented by the obligation to report, and failure to
honour Article 1 or other treaty obligations can activate the Commission's
recommending power. The obligation to take "other measures" in Article 1 can
be interpreted to include practicable measures suggested by the Commission.
• The author infers that state parties cannot ignore the Commission's
recommendations, even without a categorical statement on bindingness in the
Charter.
• Despite 30 years of operation, the Commission has seen a fast decline in its
visibility on monitoring and adjudicatory fronts, with many states in default of
reporting obligations. Compliance with Concluding Observations and decisions on
communications is low, estimated at between 13 and 14 per cent for full
compliance with communications.
• Instances of non-compliance include Nigeria voting down a gender equality bill
despite recommendations and ratifying relevant protocols, and The Gambia's
limited legislative action following recommendations on mental health law reform.
• The persistent disregard for recommendations sanctioned by the African Charter
is seen as tantamount to a violation of states' treaty obligations, specifically
Article 1. This fuels a chain reaction of state impunity.
• To circumvent obstacles, the author proposes two main solutions:
 o Politically, AU policy-making organs (Assembly, Executive Council,
Peace and Security Council) must take action. The AU Assembly must
transform the Commission's recommendations from activity reports into
binding AU decisions enforceable under Article 23(2) of the AU Constitutive
Act. The Assembly has oversight and sanctioning power. This requires the
Assembly to expressly adopt decisions requiring states to implement
recommendations, not just passively adopt reports. The Peace and
Security Council is also proposed as a more accessible and responsive
avenue for the Commission to refer urgent cases, as its decisions are
binding. Non-compliance with AU decisions can lead to sanctions (e.g.,
denial of transportation/communication links, hosting rights, voting rights).
o Judicially, the African Court provides an important procedural route
to enforce state compliance. The African Commission has unfettered
access to the Court under Article 5(1)(a) of the African Court Protocol. This
allows the Commission to institute cases against states for violations or
pursue the enforcement of its recommendations based on states' Article 1
obligations.
• The Commission has hardly utilized the African Court-avenue effectively to enforce
compliance, having instituted only three cases and facing criticism for its follow-up
mechanism.
• The Commission's bureaucracy needs a comprehensive overhaul, including
increased resources, staff (especially legal officers), and training, to effectively
track recommendations and utilize litigation.
• Ultimately, achieving meaningful progress in human rights protection in Africa
depends on both the AU and the Commission taking bold steps, although the
necessary political will from AU executive organs is crucial but often lacking

HUMAN RIGHTS IN THE AFRICAN UNION DECISION -MAKING PROCESSES:

AN EMPIRICAL ANALYSIS OF STATES’ REACTION TO THE ACTIVITY
REPORTS OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’
RIGHTS – ZEWUDIE ARTICLE
Main focus:

• Examines how AU member states react to the African Commission’s Activity

Reports.

• Highlights the increasing tension and antagonism between states and the
Commission, rather than constructive dialogue.

• Shows how state reactions undermine human rights standards in Africa.

Background:

• The African Commission submits Activity Reports to AU policy organs (PRC,

Executive Council, Assembly).

• These reports are meant to inform states and guide human rights improvement.

• Instead, states often use the process to shield themselves from human rights
criticisms.

Key Themes:

• Human Rights in the AU:

o Although human rights are central in AU instruments, implementation

remains weak.

o The AU often prioritizes political stability, peace, and traditional values over
human rights enforcement.

• Process of Considering Activity Reports:

o Initial consideration by the PRC, then recommendations to the Executive

Council.

o Assembly has largely abdicated its role to lower organs.

o The process lacks clarity and has become politicized.

Problems Identified:

• PRC Sessions:

o States frequently attack the Commission’s reports.

o Attempts to amend the substantive content of reports (undermining

Commission autonomy).

o Growing effort to control and supervise the Commission improperly.

• States’ Specific Reactions:

o Defensive and dismissive responses to criticisms in reports.

o Regular denial of reported human rights abuses.

o Demands to delete or alter sections mentioning violations in their countries.

• Interim Measures and Appeals:

o States often ignore or refuse to comply with Requests for Provisional

Measures (RPM) and Letters of Urgent Appeals (LUA).

o Some states challenge the Commission’s authority to issue interim

measures.

• Observer Status for NGOs:

o States object to granting observer status to NGOs, especially those

supporting LGBTQ+ rights (e.g., Coalition of African Lesbians).

o Political pressure led the Commission to withdraw CAL’s observer status,

compromising its independence.

• General Trends:

o States show increasing hostility towards NGOs.

o States discriminate against non-African-based NGOs.

 o There's a misuse of "African values" rhetoric to justify non-compliance with
human rights obligations.

Outcomes and Risks:

• Erosion of the Commission’s autonomy.

• Human rights protections weakened at the continental level.

• Politicization of human rights discussions within the AU.

• Decreased trust between the Commission and states.

• Diminished role of NGOs in AU human rights processes.

Conclusion:

• The Commission faces an uphill battle to maintain its independence and

effectiveness.

• There is urgent need for clear rules, stronger follow-up mechanisms, and more
genuine political will among AU states to protect human rights.

THE (UN)WILLINGNESS TO IMPLEMENT THE RECOMMENDATIONS OF THE

AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS: REVISITING
THE ENDOROIS AND THE MAMBOLEO DECISIONS – INMAN ARTICLE

Purpose and Focus of the Article

• Investigates the implementation and compliance of two African Commission

decisions:

o Endorois case (Kenya)

o Mamboleo case (Democratic Republic of Congo)

• Aims to understand state reactions, effectiveness of monitoring mechanisms,

and reasons for (non-)implementation.
Key Context

• The African Commission on Human and Peoples’ Rights (ACHPR) issues findings
that are recommendations, not legally binding orders.

• There's a growing international trend to treat such findings as legally significant

or binding.

• Rule 112 and Rule 125 of the ACHPR’s Rules of Procedure address follow-up and
reporting obligations by states.

The Endorois Decision (Kenya)

• Background:

o The Endorois were evicted from ancestral lands in 1973 for a game reserve.

o Suffered cultural, economic, and religious harms.

• ACHPR Ruling (2009):

o Kenya violated articles 8, 14, 17, 21, and 22 of the African Charter.

o Recommended restitution of land, compensation, access rights, and

community consultation.

• Aftermath:

o Kenya initially welcomed the decision but later failed to act.

o Government delayed responses and even pursued UNESCO designation

for the land.

o A Task Force was eventually created but lacked Endorois representation

and made little progress.

o Civil society and international actors have continued pushing for

implementation.
 o 2010 Constitution and legislative reforms offer indirect compliance, but
practical implementation remains lacking.

The Mamboleo Decision (DRC)

• Background:

o Concerns non-payment of legal fees owed to lawyer Mr. Mamboleo by

Pharmakina SA.

o DRC’s Supreme Court improperly annulled an arbitral award.

• ACHPR Ruling (2013):

o DRC violated articles 3, 7(1)(a), and 7(1)(c) of the Charter.

o Recommended recognition of the debt, compensation, and procedural cost

payments.

• Aftermath:

o Mixed governmental responses:

▪ Minister of Justice acknowledged the binding nature of the ruling.

▪ Minister of Economy rejected it citing economic risks.

o The Commercial Tribunal refused to enforce the ACHPR decision, calling

it non-binding.

o Legal uncertainty and lack of harmonisation between international

obligations and domestic enforcement mechanisms persist.

Conclusions

• Compliance with ACHPR decisions remains weak.

• Political will, state context, civil society involvement, and legal clarity are
crucial to implementation.
 • Kenya shows passive resistance through inaction.

• DRC shows active resistance through legal rejection and contradictory internal
responses.

• Greater institutional support, domestic legal reforms, and international

pressure are needed to ensure compliance.

INTERROGATING THE STATUS OF AMNESTY PROVISIONS IN SITUATIONS

OF TRANSITION UNDER THE BANJUL CHARTER – DERSSO ARTICLE

Context & Purpose:

• The article reviews the African Commission on Human and Peoples’ Rights’
(ACHPR) landmark decision in Thomas Kwoyelo v Uganda.

• Focuses on the legality and conditions of amnesty under the African Charter during
transitions from conflict to peace.

Key Legal Issues:

• Amnesty and international law: Ongoing debate on whether international law

generally prohibits amnesties, especially for serious human rights violations.

• ACHPR’s role: Previously had no clear, comprehensive stance on amnesty

legality under the African Charter.

• Obiter dictum in Kwoyelo: Though not the core judgment, the Commission used
this to articulate its view on amnesties.

Case Background:

• Thomas Kwoyelo, a former LRA member, applied for amnesty under Uganda’s
Amnesty Act (2000).

• Though many received amnesty, his was denied—allegedly due to the serious
nature of his crimes.
• Ugandan courts initially ruled in his favor, but the government failed to act on these
decisions.

• He filed a complaint with the ACHPR claiming unequal treatment.

Commission’s Findings (Ratio Decidendi):

• The ACHPR found Uganda had violated Kwoyelo’s right to equal protection under
the law (Article 3 of the African Charter).

• The denial of amnesty was inconsistent and unjustified, especially since others in
similar positions were granted it.

Legal Weight of the Obiter Dictum:

• Though technically non-binding, the obiter dictum carried significant legal weight
due to:

o Depth of reasoning.

o Clear intent to guide future legal standards.

o Close link to case facts.

Amnesty in International Human Rights Law:

• No absolute ban on amnesties exists under international law.

• Blanket amnesties (which provide complete immunity without accountability) are

widely condemned.

• Conditional amnesties (e.g. those involving truth-telling or reparations) may be

acceptable if they align with human rights obligations.

ACHPR’s Obiter Dictum – Key Insights:

• Blanket amnesties: Deemed incompatible with human rights and international

humanitarian law.
• Conditional amnesties: May be permitted if:

o Perpetrators disclose truth and acknowledge responsibility.

o Victims have access to remedies like truth, reparations, and participation in

justice processes.

Requirements for Acceptable Amnesties:

1. Necessity & proportionality – Must be essential for peace and justice.

2. Victim participation – Affected communities must be involved in the design.

3. Redress for victims – Should allow some form of remedy and accountability.

Conclusion:

• The ACHPR acknowledged amnesties as potentially necessary tools in transitional

contexts.

• It avoided absolute condemnation but imposed strict procedural and substantive

criteria.

• The obiter dictum expands jurisprudence on amnesty and provides a structured

framework for its legal evaluation under the African Charter.
TOPIC 8: THE AFRICAN COURT ON HUMAN AND PEOPLE’S RIGHTS

ESTABLISMENT OF THE COURT

• Established via the Protocol to the African Charter on Human and Peoples’ Rights
o Adopted in Ouagadougou, Burkina Faso June 1998
o Entered force January 2004
• Established primarily to complement the protective mandate of the African
Commission
o Decisions of the Court are final and unequivocally binding on state parties
• Court was established against the backdrop of anticipation that, unlike the
Commission, it will…

Adopt effective
Promote openness Demonstrate greater
measures for
in carrying out its clarity in framing its
dealing w/ urgent
protective mandate remedies
cases

Develop a more
comprehensive
Ensure cases are
procedure for the
finalised w/ dispatch
implementation of its
judgements

COURT AS JUDICIAL COMPLEMENT TO THE QUASI -JUDICIAL MANDATE

OF THE AFRICAN COMMISSION

NATURE OF FINDINGS

Recommendatory to Binding

Commission

• Recommendations are non-binding

 • Inhibited state compliance
• Charter allows for limited intrusion
• Commission has a lack of a mandate to make final binding decisions

Court

• Decisions of the court are final

• Not subject to appeal or political conformation
• Unequivocally binding on state parties
O Must undertake to comply w/ judgements
O And to guarantee its execution

REMEDIES

From uncertainty to clarity.

Commission

• Complainants must have exhausted domestic remedies

• Lack of remedies at national level is the whole reason for the need for
supranational recourse
• Commission has been unable to provide effective remedies or been able to
oversee the implementations of states’ providing of effective remedies
• Resulted in erratic and inconsistent ad hoc practices
• Charter is silent on remedies to be followed after finding a violation
• Commission remedies
o Declaratory orders
o Open-ended remedies
o Specific and detailed remedies

Court

• Clear legal basis in court protocol for provision of remedies

• Courts can make appropriate orders to remedy violations on a consistent basis
 • Guided by appropriateness of a remedy to attain the purpose of restoring the victim
in their rights

IMPLEMENTATION

From ad hoc practice to a comprehensive system

Commission

• Commission findings are non-binding

• Remedies have a weak legal basis
• Implementation is weak
• No follow-up system geared towards gathering what is being done in response to
Commission findings
• Commission has remained passive re findings
• Some commissioners have undertaken limited follow-up on an ad hoc basis
• Commission has recommended, in findings on the merits, that a state should report
(in its periodic report) about the implementation
• Some remedies ordered also imply a system of follow up

Court

• Findings are implemented more effectively

o Explicitly binding
o States have accepted the elaborate system of follow up
• Court protocol specifically undertakes to implement court findings
o Including ordered remedies
• Institutional/systemic control over enforcement is provided for
o Executive Council must be notified of judgements and monitor their
execution
o Court must also specify instances of non-compliance
▪ May lead to an AU decision
▪ May then lead to sanctions
ACCESSIBILITY

From secrecy to openness

Commission

• Extensive confidentiality measures

• Obscures protective work
• All protective measures taken by the commission must remain confidential until
approved by the Assembly
• Includes findings and reasonings in all communication
• No systematic official publication

Court

• Court proceedings are open to press and public

• Only limitations: protection of witnesses

URGENT CASES

From inadequacy to efficiency

Commission

• Been ineffective in dealing w/ urgent matters that require interim relief

• Charter does not provide for adoption of provisional measures
• Commission may request state parties to adopt provisional measures to prevent
irreparable harm
• This was met w/ disregard by targeted states
o Ambivalent re legal status of decisions
o Also undermined by Commission’s ability to deal effectively w/ urgent cases
• Regular procedure is not attuned to deal w/ urgent communications

Court

• Wide mandate to adopt ‘such provisional measures as necessary’ in urgent cases

to avoid irreparable harm to persons
 • Finding = judgement under the protocol = binding on state parties

PROFILE

From obscurity to visibility

Commission

• Very few communications have reached the commission

• Many factors account for this
o Lack of visibility and knowledge
o Illiteracy
o Political instability
o Absence of civil society
o Lack of legal aid
o Lack of access to justice
o Onerous local remedies

Court

• Mere existence of a court signifies greater media interest and exposure

• Bound to have a much clearer identity
• Must move beyond symbolism and earn legitimacy by securing a high profile via…
o Accessible and transparent procedures
o Quality of judgements
o Fairness of findings

PACE OF THE PROCESS

From delayed to more immediate justice

Commission

• Delay in finalising communications

• Fundamental changes in circumstances effect applicability
• Delays are mostly due to the commission
 o Numerous unexplained postponements
• Reduced where cases bypass the commission and are submitted directly to the
court
o Must have ratified protocol
• Indirect access
o Commission must deal w/ all communications on admissibility and merits
before referring them to the court
• Rules of procedure provides a quicker route
o Commission may refer matter at any stage of consideration

Court

• Deals w/ matters more speedily

• Court must render written opinion within 3 months
• State parties must comply within stipulated time

SOLUTION?

• Merger like the European Commission and Court?

o Would be a long-term solution
• Not necessarily be desirable
o Commission is often better placed to engage in friendly settlement
o Also better for cases involving massive or structural violation (requires a
non-judicialized approach)

ORGANISATION AND FUNCTIONING OF THE COURT

• The African Court is composed of 11 judges nominated by member states and

elected by the Assembly of the AU, for a period of an initial term of office of six
years. The judges are eligible for re-election for a further term only once.
 • No two serving judges shall belong to the same nationality
at any one given time. Geographical representation and
gender are factors taken into account when electing the
judges.
• The judges work on a part-time basis, except the
President of the Court who holds office on a full-time
basis.
• The seat of the Court is located in Arusha, Tanzania.
• President and Vice-President hold office for a renewable term of 2 years
• Current RSA judge on bench: Justice Dumisa Ntsebeza (Feb 2021- 2027)

NOMINATION AND ELECTION

• Only state parties to the Protocol may nominate candidates

• May provide three names
o 2 must be state nationals
o May nominate candidates from AU members who have not accepted the
protocol
• Election -> Assembly
o Any other AU member may join protocol within tenure of judges -> should
have say in court composition
o May encourage AU members to ratify the Protocol
o Court is an AU institution -> AU takes political responsibility for its
functioning and enforcement of its judgements
• Court is dependent on AU = Assembly has vested interest/responsibility in/for the
Court
o For its budget
o Assembly has final say over removal of judges
o Determines and may change court’s seat
o Court reports annually to the Assembly, specifying instances of non-
compliance
o Monitoring of judgements is Assembly’s responsibility
• Method of election is also followed for members of the African Commission
• Guidelines:

Personal appropriateness General need for balance

• Must be AU nationals • Adequate gender

• Must be jurists by representation
profession • Representative of
• W/ specific and geographical areas
demostrated human • Representative of Africa's
rights expertise and principle legal tradtions
experience
• Be of high moral
character

• Regional representation is met if each of the five regions is represented by at least

one judge
o Assures each of the legal traditions is covered
o Personal profile of candidates: expertise in traditional African customary law
and tradition

Shari'ah-based Common law African customary

Civil law system Roman-Dutch law
system system law

• Position of judge is incompatible w/ any activity that might interfere w/

independence of impartiality of judges
o Example: member of government, minister of state, diplomatic
representative, director of ministery, legal advisor to a foreign office
• States must follow the following guidelines in the nomination process:
 o Procedure for nomination should be that for appointment to the highest
judicial office in a particular country
o States should encourage civil society participation in the domestic selection
process
o Domestic nomination process should be transparent and impartial to create
public trust in the integrity of the process
• Civil society = important role
o NGO’s and individuals should involve selves
o Nominate or challenge candidates
o Needs: open and free flow of information
o Election should be supported by civil society
o Transparent as possible: public scrutiny of CV of candidate
• Much of Court’s success depends on activism and jurisprudential approach of
members
• High domestic judicial positions of court endows institution w/ prestige
• BUT their lack of familiarity w/ the African human rights system = international
human rights law generally might create difficulties in their ability to adapt to the
role of international constitutional judge on an ad hoc basis, while they continue to
fulfil their full-time roles in criminal or civil judicial proceedings
• Insulating judges from political pressure and interference
o Judges act independently as judicial experts
o Not as delegates from their countries
o Publicly commit selves to adjudicate impartially
o Same immunities and privileges of diplomats
o Cannot be held liable for any decision
o Not allowed to sit in a case for a country to which they are a national

ADOPTION OF COURT RULES

• Court draws up its rules and determines its procedures

• Should harmonise w/ those of African Commission
• Required to consult w/ Commission to determine rules
RELATIONSHIP BETWEEN THE COURT AND THE AFRICAN COMMISSION

• Protocol establishing the Court governs the relationship between the Commission
and the Court

Complements the protective May of its own accord

the Court...
Protocol provides that

Protocol provides that

the Commission...
mandate of the Commission submit a communication to
Is required to consult w/ the the Court re massive
Commission when drawing violations of human rights
up its own rules Can submit communications
May transfer a matter of to the Court on grounds of
which it is seized to the failure or unwillingness of a
Commission state to comply w/ its
decisions or provisional
May request the opinion of measures
the Commission when
deciding on issues of
admissibility
Can give advisory opinions
on request by the
Commission

• Commission retains its extensive promotional mandate

o Examining state reports + work of special mechanisms
• Court complements the Commission’s protective mandate
o Commission is the only mechanism for redress for individuals in states not
party to the Protocol
o Commission is also the first port of call for individual complainants for
states to the Protocol that do not allow direct access
o Commission is sometimes the most appropriate mechanism for certain
complaints (for cases where it shares jurisdiction w/ the Court), like for
large scale violations
• 2010 Rules of Procedure
o Gives effect to complementarity
o Allows Commission to submit cases to the Court w/out first dealing w/
admissibility and merits
 o Potential for duplication is minimised
o Potential overlap
▪ Commission’s capacity to interpret the Charter & Court’s advisory
competence
▪ Cannot consider same advisory request
▪ But Court can adopt an advisory opinion after the Commission has
given an interpretation
▪ Nothing to suggest Court should consider the matter res judicata
▪ But Commission has rarely used this competence
• Issue of res judicata regarding complaints
o Limited acceptance of direct access to the Court
o Individual complaints 1st to Commission, then possibly Court
o Complementary relationship should not allow Court to apply doctrine of
res judicata re cases finalised by the Commission
o Commission also applies the lis ailibi pendens principle in respect of
contentious cases pending before the court
• Appropriate value court should attach to Commission’s sizable body of
jurisprudence
o Courtis competent to overrule Commission’s findings
o Court is not bound to follow a finding, it is also not bound to follow
precedents
o Court should allow self too be persuaded by Commission’s progressive
interpretation of the Charter
• Fact-finding
o Certain cases, Court will have to deal w/ matters that have not been
canvassed by domestic courts
o Would require reliable fact finding by either bodies
• How to better the relationship
o Regular meetings should be organised
o Immediate past practice and their rules testify to a mutual acceptance that
dialogue and consultations are NB for their future relationship
JURISDICTION

CONTENTIOUS JURISDICTION

• Article 3: deal with all cases and disputes submitted to it regarding the
interpretation and application
o The Charter
o The Protocol
o Other relevant human rights instruments ratified by the concerned states
• Also empowered to promote the amicable settlement of disputes or cases pending
before it
• Can interpret own judgement
• Temporal jurisdiction of the Court
o Begins to run at the time the Protocol entered force (re a state)
o Except in cases of on-going violations
• Cases may be submitted by
o African Commission
o Individuals
o African Intergovernmental Organisations
o NGO’s with Observer status w/ the Commission
• Individuals and NGO’s can file cases directly if
o The state they are suing has ratified the Protocol and deposited Article 34(6)
Declaration
o Case involves alleged human rights violations
o Alleged violations have taken place in the state concerned after it ratified
the Protocol (unless alleged violations are ongoing)

ADVISORY JURISDICTION

• Article 4
• Cout may provide advisory opinions on the request of
o The AU
 o AU Member state
o Any AU organ
o Any African organisation recognised by the AU
• On any legal matter relating to the Charter
• Or any other relevant human rights instruments
• Provided it is not related to a matter being examined by the Commission

ACCESS TO COURT

Indirect Access Direct Access

• Individuals and NGO's • Individuals and NGO's w/ observer

• First submit a communication to the status before the Commission
Commission • If the state has made a declaration
• Following entities are competent to under Article 34(6) of the Protocol
submit cases to the Court: • Domestic remedies must have been
• Commission exhausted
• State parties to the Protocol • Commission may submit cases it has
• Inter-Governmental Organisations concluded to the Court, or where a
state fails or is unwilling to comply
• Domestic remedies must have been
exhausted

IN DEFAULT: AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS

V LIBYA – WINDRIDGE ARTICLE

• Overview:

o First judgment in default by the African Court on Human and Peoples’

Rights (ACHPR).

o Concerned Saif al-Islam Kadhafi, son of Muammar Gaddafi.

o Focused on violations of Article 6 (right to liberty) and Article 7 (right to a

fair trial) of the African Charter.

• Background:

o Kadhafi detained by a Libyan militia after the 2011 Libyan uprising.

 o Subjected to secret detention without access to family, lawyers, or proper
judicial processes.

o ICC also sought Kadhafi for crimes against humanity.

• Preliminary Procedures:

o Kadhafi filed a complaint to the African Commission in 2012.

o African Commission referred the case to the African Court.

o Libya repeatedly ignored Court orders, including provisional measures for

Kadhafi’s protection.

o African Court and AU Executive Council made multiple attempts to engage

Libya without success.

• Default Judgment Process:

o African Court triggered Rule 55 of its Rules to issue a judgment in default.

o Requirements under Rule 55:

▪ Libya was properly served.

▪ Court had jurisdiction.

▪ Application was admissible and well-founded.

• Findings:

o Jurisdiction: Libya bound by African Charter and Court Protocols.

o Admissibility: Kadhafi couldn't exhaust local remedies due to secret

detention and ineffective Libyan judicial system.

o Merits:

▪ Violation of Article 6: Unlawful and secret detention.

 ▪ Violation of Article 7: No fair trial, no access to a lawyer, sentenced
to death in absentia.

• Key Legal Points:

o States are responsible for actions by armed groups operating within their
territory.

o No derogation from basic rights (like fair trial and liberty) even in exceptional
circumstances.

o Default judgments are exceptional and require strong procedural fairness.

• Transfer from African Commission:

o Highlights unclear procedures for Commission-to-Court case transfers.

o Future guidance needed on the standards and procedures for such

transfers.

• Analysis and Implications:

o The case set important precedents for:

▪ Default judgments at the African Court.

▪ State responsibility over non-state actors.

▪ Use of African Commission pathways when direct access to the

Court is restricted.

o It shows the Court’s willingness to act decisively where states fail to

cooperate.

• Critiques:

o Lack of detailed factual updates during proceedings.

 o Procedural uncertainties around representation when the African
Commission litigates on behalf of individuals.

INCOMPATIBILITY OF NATIONAL LAW WITH THE AFRICAN CHARTER ON

HUMAN AND PEOPLES’ RIGHTS: DOES THE AFRICAN COURT ON HUMAN
AND PEOPLES’ RIGHTS HAVE THE FINAL SAY? – ENABULELE ARTICLE

Introduction and Purpose

•The article considers the effect of a declaration by the African Court on Human and
Peoples’ Rights (African Court) that a municipal law is incompatible with the African
Charter on Human and Peoples’ Rights (African Charter)

•It focuses on the decision of the African Court in Tanganyika Law Society & Another v
Tanzania

•The article argues that such a decision should have implications for all parties to the
African Charter, especially those states that are also parties to the African Court Protocol

•It recognizes that this effect is not automatic due to factors such as the hostility of
municipal institutions to international court judgments that challenge the domestic legal
status quo

•The African Court was established as an enforcement mechanism of the African Charter,
which is the principal human rights instrument of the African Union (AU)

•The purpose of the African Court is to contribute to implementing the safeguards of the
African Charter by finding violations and finding incompatibility of state laws with the
Charter

•Finding incompatibility, especially with constitutional provisions, is complicated and

requires the affected state to amend or repeal the incompatible law(s)

Access to the African Court

•The African Court Protocol, establishing the Court, has been ratified by 30 states
•Access to the Court is available through three routes provided in Article 5 of the Protocol:

◦The African Commission on Human and Peoples’ Rights submitting claims on

behalf of individuals

◦States submitting disputes concerning the interpretation and application of the

Charter (interstate or concerning a national's rights)

◦Individuals and non-governmental organisations (NGOs) directly suing a

state party, subject to Article 34(6) of the Protocol

•Article 34(6) requires states to make a declaration granting the Court

jurisdiction over cases brought by individuals and NGOs

•At the time of writing, only seven states out of the 30 that ratified the
Protocol had made this declaration

•This requirement has diminished the role of individuals as guardians of the

Charter's integrity, as few cases are brought without individual litigants1

The Tanganyika Law Society & Another v Tanzania Case

•Applicants challenged amendments to Tanzania's Constitution, arguing they violated the

rights of association and participation in public affairs under Articles 10 and 13(1) of the
African Charter

•Specifically, the challenge targeted the prohibition of independent candidacy in Tanzania

•The applicants asked the Court to declare the violation and direct Tanzania to amend its
laws to comply with the Charter

•Tanzania argued the prohibition was a necessary restriction based on the country's
social needs and historical reality to prevent uncontrolled liberty, also referring to
limitations in Articles 27(2) and 29(4) of the Charter

The Court's Reasoning in Tanganyika Law Society

•The Court found that the rights under Article 13(1) are individual rights that do not
necessarily require enjoyment through association with groups like political parties

•It held that requiring candidates to belong to a political party to participate in governance
derogates from the rights enshrined in Article 13(1)

•Distinguishing the case from Castañeda Gutman v Mexico, the African Court noted that
Tanzania offered no alternative for citizens to seek political office without joining or being
sponsored by a political party

•The Court affirmed that the right to stand for election should not be unreasonably limited
by requiring membership in a political party

•Restrictions on rights must be necessary in a democratic society and proportionate to a

legitimate aim. The legitimate interest must be "proportionate with, and absolutely
necessary for the advantages which are to be obtained"

•The Court found no justification for the restriction on independent candidacy under Article
27(2), declaring it disproportionate to the aim of fostering national unity

•The prohibition violated both the right of the general populace to "choose" candidates
and the right of an office seeker to "freely participate" in electoral processes

•Citing Article 27 of the Vienna Convention on the Law of Treaties (VCLT), the Court
stated that the Charter obligates Tanzania "to make laws in line with the intents and
purposes of the Charter"

•Restricting the electorate's choice to political party candidates is an "unnecessary fetter"

and a violation .... Requiring party membership violated the right to freedom of association

Legal Implications of Incompatibility Findings

1. Wider Impact of Incompatibility Findings

• Explanation: When the African Court finds that a national law is incompatible
with the African Charter (like in the Tanganyika case), that decision is more
impactful than simply ruling on an individual rights violation.
 • Key Point: Such a finding affects not just the state involved (e.g., Tanzania), but
all states under the Court’s jurisdiction that have ratified the Charter — and
potentially others that haven’t ratified the Court Protocol but are still Charter
parties.

2. Legal Authority of the African Court

• Explanation: The African Court’s interpretation of the African Charter carries more
weight than interpretations by other regional courts like ECOWAS’ Court, because
it was specifically created to interpret and enforce the Charter.

• Key Point: While the African Court can’t overturn domestic or regional court
decisions, its rulings on Charter interpretation should be treated as the final
authority within the AU framework.

3. The Need for Uniform Application

• Explanation: If only Tanzania changes its law while others like Nigeria, Zambia,
or Sierra Leone don't, it would lead to inconsistency and confusion in how the
Charter is applied across Africa.

• Key Point: There must be uniformity to avoid a fragmented human rights regime
where protections vary drastically between states.

4. Binding vs. Authoritative Impact

• Binding Effect: Legally, only the parties to the specific case (e.g., Tanzania in the
Tanganyika case) are bound to comply.

• Authoritative Effect: The legal reasoning (i.e., the interpretation of the Charter)
has broader precedent value, influencing other states and courts.

• Analogy: Just like ICJ or ECJ rulings, even non-binding parts can guide national
and international legal development.

5. Internalisation of Court Decisions

 • Explanation: The legal reasoning of the Court can be internalised (made part of
law) in two ways:

o Vertically: National courts and legislatures apply or incorporate the Court’s

interpretation.

o Horizontally: Other international or regional courts adopt the same

reasoning.

• Impact: Over time, such interpretations become part of the legal norms of the
Charter system — even for states not directly involved in the case.

6. Practical Legal Effects

• Explanation: Even if a country hasn’t ratified the Court’s Protocol, it still must
respect Charter obligations (per article 3(h) of the AU Constitutive Act).

• Key Point: So, all AU member states are, in principle, expected to align their
laws with Charter interpretations — not just those who are parties to the Court
Protocol.

7. Contrast with the African Commission

• Explanation: The African Commission’s findings are recommendations, not

binding rulings.

• Key Point: The African Court’s final and binding decisions are better suited to
shape state behaviour and influence national laws and policies.

Practical Difficulties

Limited ratification and optional declarations:

• Many Charter parties have not ratified the Protocol, placing them outside the
Court's jurisdiction. The Tanganyika decision does not automatically impose duties
on states like Zambia and Sierra Leone that haven't ratified the Protocol. The
 limited number of states making the Article 34(6) declaration restricts individual
access, hindering the Court's ability to reaffirm its decisions.
• While regional courts or states/Commission could bring cases, these mechanisms
are rarely used effectively.

The African Court belongs to a different legal order than municipal systems.

• Its binding decisions and the state undertaking to comply are not sufficient to make
them directly enforceable in domestic law or guarantee compliance under
municipal law.
• Translating international norms, especially from international court decisions
challenging a constitutional status quo, into enforceable municipal norms is
difficult.

Undefined municipal legal status

• The Court's undefined municipal legal status creates legitimacy problems and
hinders acceptance and effect of its decisions. National judges may question their
obligation to apply Court judgments or jurisprudence if the Protocol is not
recognized domestically.
• National courts have sometimes disregarded international court decisions based
on non-domestication of the relevant treaty provisions.
• To overcome this, states must integrate the Court into their legal systems through
legislative reforms, directing municipal courts to consider the Court's decisions.
• Existing provisions in some countries like South Africa and Tanzania allow courts
to consider international law when interpreting legislation or the Bill of Rights, but
it's uncertain if this guarantees supremacy over established municipal law.

Existing municipal jurisprudence:

• Domestic courts may have already interpreted the African Charter or similar rights
more narrowly based on local circumstances, leading to potential conflict with the
African Court's interpretations.
 • Backed by sovereignty and constitutional supremacy, national courts may prioritize
local law and settled case law, particularly on constitutional matters58 ....

States and their judiciaries generally dislike being dictated to by international

bodies.

• The African Court applies the Charter in its treaty character, aiming for consistent
international standards, not bound by narrow municipal interpretations61 .
• Municipal courts should align their case law with the African Court's jurisprudence
for broad and consistent application of the Charter.
• Variations in national interpretations due to factors like constitutional differences
highlight the need for a uniform standard set by the Court.
• Accepting the African Court's competence may face initial resistance from
municipal institutions and political actors.

Local circumstances:

• Peculiarities like legal traditions, culture, and development stages can influence
domestic laws and interpretations. The European Court uses a "margin of
appreciation" principle.
• Local circumstances might justify laws or case law that differ from the African
Court's interpretation66 .... This factor impacts uniform interpretation and requires
the Court to understand the context behind laws.

Complentarity and dialogue

• The aim should be complementarity and dialogue between the African Court
and national courts, allowing national courts some liberty to refuse to follow with
reasons as feedback69 ....
• The Court must stand firm on issues like women's rights, which may clash with
certain cultural norms, and develop a uniquely African human rights jurisprudence
rather than merely copying other systems.

Claw-back clauses:
 • These Charter provisions allow states to limit or condition rights enjoyment
("provided by law," "necessary restrictions," etc.). Concerns exist that they allow
states to restrict rights significantly based on domestic law.
• Claw-back clauses can serve to accommodate local circumstances and enhance
state participation, acting as tension absolvers. However, they should not be used
to render rights non-existent or set onerous conditions.
• The African Commission has set limits on claw-back clauses, stating they cannot
be used for general restriction, justify wholesale violations, or derogate from overall
Charter obligations. Restrictions must meet legitimate interests and be necessary
in a democratic society.
• The African Court appears to judge claw-back legislation individually, not favoring
total prohibition where alternatives exist75 .... The Court must ensure such
alternatives are not technically nullified and develop principles to prevent clauses
from nullifying rights.

Conclusion

•The African Court is the prime mechanism for interpreting and enforcing the
African Charter, and Tanganyika Law Society is likely the first of many
incompatibility findings.

•States must support the Court to achieve uniform interpretation and application, which
promotes harmony, judicial economy, and consistent obligations.

•Constitutional and legislative changes are needed in states to integrate the Court into
their legal systems and ensure municipal actors defer to its interpretation and decisions

•Achieving balance between the Court's interpretations and diverse national ones is
difficult, especially without the needed municipal legal framework for the Court's status.
This lack gives unwilling national courts a valid reason to ignore the Court's decisions and
jurisprudence.

•The Court must build consensus and legitimacy through consistent jurisprudence.
•Considering all the practical difficulties and the weak AU enforcement mechanism, the
African Court does not yet have the final say

OBSERVATIONS ON THE RULES OF THE AFRICAN COURT ON HUMAN AND

PEOPLES’ RIGHTS – NALDI ARTICLE

Establishment & Purpose of the African Court

• Established by the 1998 Protocol to the African Charter on Human and Peoples’
Rights.

• Operational since 2004; Rules of Court adopted on 2 June 2010.

• Designed to complement the African Commission in ensuring human rights

protection in Africa.

Nature and Role of the Rules of Court

• Supplement and clarify provisions in the Protocol.

• Address procedural gaps and ambiguities.

• Binding in nature and essential for effective court functioning.

• Harmonised with the Rules of the African Commission.

Jurisdiction and Functions of the Court

• Jurisdiction includes:

o Interpretation of the African Charter and other human rights treaties ratified
by states.

o Advisory opinions, amicable settlements, and interpretation/revision of

judgments.

• Broader jurisdiction compared to European and Inter-American systems.

• Can interpret instruments like the UDHR under Article 60 of the Charter.
Composition and Structure of the Court

• 11 judges with full-bench hearings (no chambers).

• Aims for gender and regional balance, though implementation is vague.

• Incompatibilities with judicial office (e.g., political or governmental roles) outlined.

• Judges must recuse if impartiality is compromised.

Contentious Procedure

• Open written and oral proceedings; judgment by majority.

• Decisions are reasoned, final, and binding.

• Court meets four times a year (plus extraordinary sessions).

• Delays in issuing judgments remain a concern despite procedural expectations.

Access to the Court

• Wide ratione personae: includes states, Commission, African IGOs, RECs.

• Individuals and NGOs must rely on state declarations under Article 34(6).

• Very few states have made such declarations.

Admissibility and Jurisdiction Requirements

• Must satisfy ratione personae, ratione materiae, and ratione temporis conditions.

• Must be filed within reasonable time and after local remedies are exhausted.

• Court has dismissed many cases due to lack of jurisdiction or standing.

Preliminary Objections

• Governed by Rule 52.

• Must be raised early and do not usually halt proceedings.

• Court typically joins objections to the merits for efficiency.

Provisional Measures

• Available in urgent cases to prevent irreparable harm.

• Can be issued by Court on its own or on request.

• Binding nature debated, but often treated as such by the Court.

Evidence and Witnesses

• Court can collect evidence proactively and accept amici curiae.

• May examine witnesses and conduct on-site investigations.

• Lack of provisions on contempt, perjury, or non-compliance by witnesses.

Implementation of Judgments

• Judgments are binding but the Court has no enforcement powers.

• Referrals for enforcement go to the AU Assembly and Executive Council.

• Rule 61(5) affirms binding nature of judgments.

Relationship with the Commission

• Commission may refer cases or communicate with the Court.

• Court can request Commission’s opinion or refer matters back.

• Aim is to avoid duplication and ensure cooperative functioning.

Critical Observations

• The Rules align with other international courts but leave gaps.

• Judge Ouguergouz criticizes procedural inconsistencies, especially regarding

jurisdiction and referrals.
 • Suggestions include clearer referral criteria and stricter case screening.

MONITORING IMPLEMENTATION OF THE DECISIONS AND JUDGMENTS

OF THE AFRICAN COMMISSION AND COURT ON HUMAN AND PEOPLES’
RIGHTS – MURRAY ET AL ARTICLE

1. Introduction

• The African Commission and Court have produced many human rights decisions
and judgments, but their implementation remains inconsistent and poorly
monitored.

• Recent research focuses on post-judgment impacts and whether decisions lead

to real-world changes.

• The article is based on a comparative study involving interviews and desk

research from nine states across Africa, the Americas, and Europe.

2. Roles of the African Commission and Court

• Both bodies should actively monitor implementation to maintain legitimacy,

credibility, and strategic influence.

• Two categories of implementation monitoring:

o Reactive: Waiting for information from states and stakeholders.

o Proactive: Actively seeking, validating, and assessing information.

• Identified roles include:

o Information-gathering

o Reporting

o Dialogue with parties

o Interpretation & technical assistance

 o Assessment

o Coordination

o Enforcement (e.g., "naming and shaming", sanctions)

3. Treaty Provisions and Procedural Rules

• African Charter (Art. 1, 45, 46) and African Commission’s Rules (Rule 112,
118, 125) define a broad mandate for follow-up.

• Court Protocol (Arts. 29-31) assigns monitoring to the AU Executive Council and
obliges states to comply.

• Rules of Court empower the African Court to request implementation updates and
make recommendations in cases of non-compliance.

4. Mechanisms for Monitoring

• Existing mechanisms include state report reviews, activity reports, fact-finding

and promotional missions, and resolution references.

• Challenges:

o Lack of consistent use of tools.

o Poor information flow from states.

o Limited staffing and technical resources.

o Absence of centralized case management systems.

• Working Groups (e.g., African Commission’s Working Group on

Communications) play a role but lack focus or resources for dedicated follow-up.

5. Assessment Practices

• Monitoring is inconsistent and varies across cases.

• Court and Commission rarely verify implementation claims.

 • Endorois case is cited as an example of active follow-up, including hearings and
workshops.

• Reports to the AU often lack detail or follow-up consequences.

• Commission reluctant to refer non-compliance cases to the Court due to

jurisdictional concerns.

6. Conclusions and Recommendations

• No coherent monitoring strategy exists; roles are unclear and inconsistently

performed.

• Key recommendations:

o Start with information gathering (already within current powers and

resources).

o Develop internal case management systems.

o Use a pilot approach to monitor a small number of priority decisions.

o Consider appointing a dedicated rapporteur or working group focused

on implementation.

• The AU-level monitoring and enforcement mechanisms are mostly inactive or

symbolic.

• Practical reforms (even low-cost) can enhance the impact and visibility of human
rights rulings.