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Editorial: Volume 6 No 2 2006

On 21 October 1986, the African Charter on Human and Peoples’ Rights (African Charter) entered into force. This day has subsequently officially been remembered by the OAU and the AU as ‘African Human Rights Day’. This issue of the Journal, appearing as the 20th anniversary of the Charter is celebrated, is an extended commemoration of the life of the African Charter. It has been 25 years since the Charter’s adoption (on 21 June 1981), and 19 years since the inauguration of the African Commission on Human and Peoples’ Rights (African Commission) (on 2 November 1987).

Although the African human rights system has undergone normative expansion with the adoption and entry into force of the African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on the Rights of Women in Africa, the African Charter remains the core instrument This core was also elaborated upon in resolutions adopted by the African Commission. Amounting to ‘General Comments’, these resolutions deal with issues such as the right to a fair trial (the Dakar Declaration on the Right to a Fair Trial, 1999 and the Principles and Guidelines on the Right to a Fair Trial, 2003), freedom of expression (Principles on Freedom of Expression, 2002) and torture (the Robben Island Guidelines on Torture, 2002). All these instruments and resolutions are contained in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (Pretoria: PULP, 2006).

While some of the contributions to this issue provide a general overview of the African human rights system (Nyanduga and Boukongou), others discuss developments with regard to particular rights and also procedural aspects. Most of the individual communications decided by the African Commission so far deal with fair trial rights. Udombana canvasses these findings. Related to the right to a fair trial is the right not to be subjected to torture or other forms of cruel, inhuman or degrading treatment and punishment. Mujuzi provides an overview of relevant standards and case law.

Some of the major normative advances during the 20-year period under review occurred in respect of socio-economic rights and the rights of indigenous peoples. These aspects relate to two features that have often been descried as uniquely ‘African’ characteristics of the African Charter: the inclusion of socio-economic rights as binding guarantees alongside ‘civil and political’ rights in one treaty; and the provision in the Charter for ‘peoples’ rights’. In their contributions, Mbazira, and Bojosi and Wachira discuss the content given to these rights in more detail. In Dersso’s article, the jurisprudence of the African Commission dealing with peoples’ rights is explored more fully.
Despite the lack of a clear articulation of such a procedure under the Charter, the Commission developed a system for dealing with individual complaints (or ‘communications’). One of its prominent features, which enhanced the submission of complaints, is the broad standing requirement. The rationale and some of the adverse consequences of the provisions on standing in the Charter are taken under review in Pedersen’s contribution.

Over the last few years, international human rights law increasingly occupied itself with the effective implementation of normative standards. Although the findings of the African Commission are formally only recommendatory in nature, arguments have been advanced that they have a binding effect. These propositions are assessed in the contribution by Wachira and Ayinla. Musila examines the effectiveness of remedies provided under the African Charter.

The editors thank the following people who have acted as referees during the period since the publication of the previous issue of the Journal: Gina Bekker, Danny Bradlow, Danie Brand, Lilian Chenwi, John Dugard, Jean Desiré Ingange wa Ingange, Waruguru Kaguongo, Magnus Killander, Abdul Koroma, Lirette Louw, Mwiza Nkatha, Marius Pieterse, Dinah Shelton, Karen Stefiszyn and Tharien van der Walt.

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