The magnificent seven: Africa's response to US article 98
by Deborah Helen Cotton and Godfrey Odhiambo Odongo
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What are the motivating factors that enable certain states to withstand pressure from other states? To ensure that the International Criminal Court does not gain jurisdiction over its nationals, the United States is currently seeking to sign Bilateral Immunity Agreements (BIAs) with all countries under the rubric of the American Service Members' Protection Act. This article examines the debates over the BIAs and goes further by analysing responses to the BIAs of seven countries within the African region. It specifically examines the ways in which states are able to withstand the pressure to sign a BIA by taking advantage of internal and external institutional structures and mechanisms. It also fills a gap in the literature by examining one region's response to the BIAs relative to the US position concerning the International Criminal Court.
Counter-terrorism legislation and the protection of human rights: a survey of selected international practice
by Cephas Lumina
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The 11 September 2001 attacks in the USA have recast global attention on terrorism. Following the attacks, a number of governments around the world rushed to enact legislation against terrorism while others have either introduced or have been constrained to introduce anti-terrorist legislation by the USA and its ally, the UK — as part of their ‘either you are with us or you are against us' global anti-terrorism campaign. Others have resurrected draconian colonial anti-terrorism legislative measures. Almost invariably, these laws have greatly impinged upon or have serious implications for human rights and freedoms, and for the fundamental principles of humanity. This article provides an overview of the range, and human rights implications of anti-terrorism legislative measures adopted in selected countries in different geo-political regions of the world since 11 September. The article considers these measures in the light of the fundamental principles of humanity as reflected in the Turku Declaration. It is argued that each state should have, in co-operation with others and in accordance with the dictates of international law, the liberty to adopt counter-terrorism legislation that not only is consonant with its local circumstances, but also helps it meet its obligations under international law, including the primary obligation to protect the rights of all people without discrimination of any kind. Significantly, there is a need for the international community to deal with the problem of terrorism in a holistic manner that ensures that, in their quest to effectively deal with the terrorist threat, states do not erode the rights of all persons subject to their jurisdiction.
From mandates to economic partnerships: the return to proper statehood in Africa
by Hennie Strydom
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The concern over state strength has since the end of the Cold War under the intellectual dominance of economists identified political institutional capacity as the most critical variable in development. This concern, also known under a variety of other names, such as ‘governance' or ‘state and institutional capacity', has in the meantime become the subject matter of a number of international and regional efforts. These efforts are aimed at promoting the idea of the primacy of the state in sustaining peace and security, the flourishing of civil society and the private sector, and at creating an enabling environment for sustainable growth and development, thereby ensuring a more equitable society. This article examines the potential role of regional mechanisms, such as the African Peer Review Mechanism and the mechanisms created by the Cotonou Agreement, in the return to good governance and proper statehood in Africa.
Arbitration and human rights in Africa
by Andrew I Chukwuemerie
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With a colonial background and, in many cases, years of military and other forms of dictatorship, most African countries have elaborate constitutional provisions for the protection of human rights. Colonialism and those dictatorships involved the extensive denial and abuse of citizens' rights. Independence and cessation of dictatorships therefore invariably involved keen resolves to ensure the protection of citizens' rights in all practicable ways. African constitutions are therefore quite elaborate, for instance, with provisions that confer on every citizen or resident of the country in question such rights as those of unfettered access to courts for the determination of causes and matters as well as a requirement of public hearing of cases and pronouncement of judgments or findings. Most African countries are also now embracing commercial arbitration for the resolution of disputes. They are equally making serious efforts to transform themselves into preferred venues for international arbitrations by business people and business entities. Since arbitration is fundamentally a private and confidential process and an election to go to arbitration is in one way or the other a decision not to go to court, whether or not arbitration breaches citizens' human rights, is becoming an important issue on the continent. This article examines the question and finds that, unlike the situation in some other parts of the world, arbitration and human rights are not in any form of conflict on the continent. Therefore, arbitration does not breach human rights in Africa. African countries have rather worked out a synergy between the two streams of law. The article also finds that the situation is the same in the customary law and that, in working out this synergy, the continent has shown a worthy example to the world just as it did with the idea of an international customary law arbitration.
The absence of a derogation clause from the African Charter on Human and Peoples' Rights: a critical discussion
by Laurent Sermet
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Unlike other regional instruments of a general nature protecting human rights (the European Convention and the American Convention) and the International Covenant on Civil and Political Rights, the African Charter contains no clause on the derogation of human rights. This absence must be contrasted with the fact that most African constitutions contain such a clause and that African states frequently declare states of emergency. This deviation from the norm raises several questions that form the subject of this article. Should the limitation clause be considered to offer equivalent, or even a superior, protection to the derogation clause? What is then the specific scope of application of the derogation clause? Must the absence of a derogation clause be interpreted as being more or less favourable for the protection of human rights? What is the position of the African Commission? How does one reconcile international agreements that contain a derogation clause and the African Charter? Two arguments will be presented: one which favours a derogation clause and one which does not.
The Congo/Uganda case: a comment on the main legal issues
by Faustin Z Ntoubandi
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This article comments upon the judgment handed down by the International Court of Justice on 19 December 2005, in the Case Concerning Armed Activities on the Territory of the Congo: DRC v Uganda. The author uncovers the main legal issues pertaining to this case, namely, those associated with the legality of the use of force under international law, the rights and obligations of the occupying power in occupied territories, and the issue of diplomatic protection.
Utilising the promotional mandate of the African Commission on Human and Peoples' Rights to promote human rights education in Africa
by Sisay Alemahu Yeshanew
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Human rights education plays an important role in the promotion of human rights. This article provides suggestions on how national strategies for human rights education should be devised. The author further argues that the African Commission on Human and Peoples' Rights has not lived up to its promise with regard to active involvement in efforts to improve human rights education across the continent. Suggestions are given as to how the Commission could play a more active role with regard to human rights education.
When a child is not a child: the scourge of child soldiering in Africa
by Divya Singh
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The important place of children as integral to every country's future has been documented in legal, political, social and economic doctrine on domestic, regional and international platforms. Human rights instruments and covenants all espouse the protection of the child with concomitant rights and state obligations. Yet, despite this, in several countries in Africa, one finds children being abused through the wholly unconscionable practice of child soldiering. Whilst this scourge is not only an African problem, it is recognised that the dilemma is critical in Africa. This article examines the reasons why any country and/or military group/person would introduce children to armed conflict, the effect of such engagement on the child victim, and the international and African regional legal conventions. Taking cognisance of the continued abuse of children as participants in armed conflict, the writer makes recommendations for the elimination of the crisis, at both national and international levels. If the terror is allowed to continue unchecked, the consequences for Africa will, inevitably, be the emergence of a generation of disaffected individuals with concomitant limitations for growth and development personally and for Africa, as a whole. This is not the legacy of the African renaissance.
Beyond justiciability: realising the promise of socio-economic rights in Nigeria
by Stanley Ibe
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This article examines the status of socio-economic rights in Nigeria against the promise of better living standards which they offer. Beginning with the regional mechanism for enforcement, it directs attention to creative methods of overcoming the hurdle of justiciability and challenges the judiciary to embrace India's integrative approach as well as the African Charter's promise of equal treatment for all manner of rights. It posits that a fair resolution of the crisis of socio-economic rights enforcement demands honest answers to questions of corruption and inept leadership, poverty and ignorance, absence of a human rights culture arising out of non promotion of its ideals, apathy and indifference of the international community, the debt burden and absence of a virile civil society. In the final analysis, only a multi-sectoral and multi-dimensional approach can guarantee the promise of socio-economic rights.
