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Editorial: Volume 4 No 2 2004

Following the African Commission’s 35th ordinary session, which took place in Banjul, The Gambia, during May and June 2004, Pretoria played host to two important events relating to the African regional human rights system. The first was a seminar on the socio-economic rights provided for under the African Charter. This seminar culminated in the adoption of a statement elucidating the content of these rights, and is analysed by Sibonile Khoza in this issue. The second event, also discussed here, was the third extraordinary session of the Commission, called to discuss and adopt the report of a fact-finding mission that four commissioners had undertaken to the Darfur region of Sudan.

Both these developments are welcomed: The African Charter has long been commended for containing socio-economic rights, but with the exception of the Commission’s finding in SERAC & Another v Nigeria, little discussion about the African content of these rights has taken place. One of the persisting weaknesses of the Commission has been its inability to respond to massive human rights violations. Its efforts in respect of Darfur are directed at improving its record in this regard.

In July, the African Union adopted a decision in which it called for the ‘integration’ of the African Court on Human and Peoples’ Rights and the AU’s Court of Justice. The editors add their voice to those who are insisting that any process towards fusing the two courts should not suspend the establishment of the African Court on Human and Peoples’ Rights. The fact that the Protocol on the Court of Justice has not yet entered into force should not be allowed to become an obstacle towards the establishment of the African Court on Human and Peoples’ Rights.

Two contributions deal with HIV/AIDS, which has had a devastating effect in Africa. Sabelo Gumedze investigates the potential role of the African Commission in addressing the pandemic. Australian High Court Judge Michael Kirby poses some challenging questions about reliance on an individualistic human rights discourse, emphasising privacy in an age of accessible but underutilised anti-retroviral (ARV) medication. One of the possibilities that may lead to greater use of ARV treatment is routine testing. Routine HIV testing is usually understood as an HIV test that forms a routine part of a medical examination when the patient shows any symptoms that may be linked to AIDS. A utilitarian approach, in terms of which the perceived benefit to the common good of treatment justifies inroads into human rights, should be avoided. It should be taken into account that routine testing will take place in a context where stigma is still rife, and where the test result may have serious consequences. As treatment is not universally available, and only HIV-positive persons with a CD4 count of less than 200 qualify for ARV treatment, the consequences of routine testing may easily be to expose individuals to stigma and discrimination, without any concomitant advantage.

Other contributions in this issue deal with contemporary issues of a complex and controversial nature, such as the rights of gays, privatisation and indigenous knowledge. These topics have not yet been addressed sufficiently in an African context, and from an African perspective.

The editors thank the following people who acted as referees over the period since the previous issue of the Journal appeared: Jean Allain, Gina Bekker, Mary Crewe, Anton Kok, Pius Langa, Justice Nwobike and Dire Tladi.

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