The African Commission on Human and Peoples' Rights and the exhaustion of local remedies under the African Charter
by Henry Onoria
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This article examines the question of the exhaustion of local (or domestic) remedies under article 56(5) of the African Charter on Human and Peoples' Rights. Analysing the jurisprudence of the African Commission on Human and Peoples' Rights, the contribution examines issues involving the availability and effectiveness of local remedies. Attention is given to issues such as exceptions to the requirement to use local recourse in the event of massive violations, the absence of local remedies and 'ouster clauses'.
Election management bodies in Africa: Cameroon's 'national elections observatory' in perspective
by Charles Manga Fombad
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This article examines in detail the work of the Cameroonian National Elections Observatory (NEO) during the 1990s, at a time when democratic transition through multiparty elections took place around Africa. It is contended that regardless of such initiatives, many countries now show signs of returning to de facto one-party systems. Indicative of this regression has been the way elections have been managed and manipulated by the ruling party. It is suggested that the integrity of the election management process is a crucial factor in the facilitation of functional democratic elections. Considering that election management bodies (EMBs) are considered vital for ensuring a level playing field between all political actors to guarantee free and fair elections, it is emphasised that EMBs must be independent and accountable, with sufficient resources to sustain their effective operations. The article concludes that even though some of the EMBs set up in African countries have been successful, many others lack in autonomy, power and capacity. EMBs are often not sufficiently independent, have merely served as instruments for perpetuating rituals of symbolic elections and disguise signs of authoritarian revival. The NEO is analysed and compared with other EMBs in Africa.
Freezing the press: Freedom of expression and statutory limitations in Botswana
by Bugalo Maripe
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Freedom of expression is guaranteed under section 12(1) of the Botswana Constitution. Limitations of this 'right' have to comply with the requirements in section 12(2), which allows for the limitation of freedom of expression under Botswana law. This article analyses a number of statutory provisions (the National Security Act, the Corruption and Economic Crime Act and Penal Code) and a government directive (to cease advertising in particular newspapers) that limit this right. The author investigates whether these limitations are in conformity with the Constitution. He concludes that there has been a significant erosion of freedom of expression, and laments the absence of judicial pronouncements on this issue.
A schematic comparison of regional human rights systems
by Christof Heyns, Wolfgang Strasser and David Padilla
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There are three regional systems for the protection of human rights in the world today, namely the African, Inter-American and European systems. This article is a comparative presentation of their salient features and focuses on key procedural and substantive aspects.
Economic integration and human rights in Africa: A comment on conceptual linkages
by Sisule Fredrick Musungu
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This paper focuses on treaties establishing African regional and subregional organisations for economic integration. These include AEC, COMESA, SADC, ECOWAS and EAC, all making reference to human rights. In addition, the founding treaties of all these organisations make provision for courts to determine trade disputes and interpret agreements. It is significant that trade arrangements such as Cotonou, AGOA and NEPAD also link economic integration to human rights by emphasising civil and political rights. It remains to be seen to what extent these organisations and agreements will apply human rights, in particular the African Charter on Human and Peoples' Rights. The paper reviews linkages and tensions between the rules and operations of the subregional economic institutions in Africa and human rights as conceptualised under the African Charter.
The normative and institutional framework of the African union relating to the protection of human rights and the maintenance of international peace and security: A critical appraisal
by Kithure Kindiki
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This article examines norms and institutions developed under the auspices of the African Union (AU), dealing with human rights challenges on the continent. The article focuses on the possibilities these norms and institutions offer to the AU to undertake collective humanitarian intervention in response to massive and grave violations of human rights involving war crimes, crimes against humanity and genocide being perpetrated in a member state. The writer expresses optimism that the norms and institutions developed under the AU in relation to intervention are more progressive than those obtained under the AU predecessor, the Organisation of African Unity (OAU). If effectively implemented, they could contribute significantly to enhancing human rights protection in Africa.
Bringing communications before the African Commission on Human and Peoples' Rights
by Sabelo Gumedze
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The African Commission on Human and Peoples' Rights is increasingly playing an important role in the implementation of human rights in Africa. The Commission continues to develop jurisprudence particularly relevant to Africa. The Commission has also exhibited a propensity to interpret its mandate broadly at a time when governments continue to perpetrate serious violations of human rights. Notably, an important development is that the Commission considers itself free to consider communications falling short of alleged grave and massive violations. This article provides an overview of the steps in the process of submitting a communication to the African Commission. The initiation of 'litigation' before the Commission differs markedly from litigation at the domestic level. The procedure governing communications before the Commission is divided into four steps: seizure; admissibility; merits and remedies. Under the Charter the Commission has also been willing to conduct on-site investigations and recommend interim measures.
The right to a satisfactory environment and the African Commission
by Kaniye SA Ebeku
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This article emphasises that the right to a satisfactory, healthy or clean environment is enshrined in over 60 constitutions from all regions of the world. Moreover, it is suggested that there is an increasing trend by victims of environmental damage to invoke human rights for protection and redress. National courts and global and regional human rights monitoring bodies, such as the UN Human Rights Committee and the Inter-American Commission, have addressed this issue. It is encouraging that the African Commission recently decided a case concerning the impact of oil operations in the Niger Delta, concluding that the African Charter recognises the importance of a clean and safe environment. The decision recognises a nexus between socio-economic rights and the right to environment to the extent that the environment affects the quality of life and safety of individuals and groups. In finding Nigeria in violation of the Charter, the Commission stated that the right to a satisfactory environment 'requires the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources'.
Considering the interpretation and implementation of article 24 of the African Charter on Human and Peoples' Rights in light of the SERAC communication
by Morné Van Der Linde and Lirette Louw
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In accordance with article 30 of the African Charter on Human and Peoples' Rights, an African Commission on Human and Peoples' Rights was established in 1987 with a mandate to promote and protect human rights in Africa. Under the Charter, the African Commission is empowered to consider complaints from both individuals and states. Until the SERAC communication, individual communications rarely dealt with socio-economic rights and in considering the Commission's jurisprudence, it becomes evident that the Commission showed a reluctance to elaborate on socio-economic rights. This contribution mainly deals with the Commission's consideration of the SERAC communication with a specific focus on the right to a satisfactory environment as guaranteed by the African Charter. It highlights the procedural aspects of this communication, the significance of article 24 as well as the Commission's interpretation of this article. Finally, aspects relating to the implementation and follow-up of the recommendations contained in this decision, specifically in relation to the environment, are examined.
