Approaches to the justiciability of economic, social and cultural rights in the jurisprudence of the African Commission on Human and Peoples' Rights: Progress and perspectives
Various approaches to the adjudication of economic, social and cultural rights have developed out of jurisprudential and doctrinal debates around the justiciability of these rights. This article advocates for the application of both direct and indirect approaches to the justiciability of economic, social and cultural rights in the African human rights system. Under the direct approach, it argues for a model that combines the analysis of relevant provisions to identify normative standards and the evaluation of the conduct of states based on those standards. Under the indirect approach, it makes a case for the interdependent interpretation of substantive rights falling in different commonly-used categories to bridge gaps in the protection of specific economic, social and cultural rights and to ensure the coherent application of human rights norms. There is evidence in the jurisprudence of the African Commission on Human and Peoples' Rights that it applies both approaches. Its reasoning in many of the relevant decisions has, however, been lacking in the level of rigour, soberness, detail and consistency that is needed for a principled disposition of cases. The further development of its jurisprudence based on the evaluation of competing approaches to the justiciability of economic, social and cultural rights could increase the legal value of its decisions and the likelihood of their implementation.
The effects of the absence of an explicit and comprehensive protection of the human right to water in the African Charter on Human and Peoples' Rights have been somewhat mitigated by the African Commission on Human and Peoples' Rights' purposive approach to the interpretation of other guarantees of the African Charter in a manner that envelopes the right to water. The African Commission grounded the legal basis of the right in provisions guaranteeing the right to health, the right to a healthy environment and the right to dignity. Yet, the Commission has failed to fully explain the normative status and content of the right. There also remains doubt as to whether the right is an autonomous entitlement per se or is an auxiliary guarantee that is used to ensure the realisation of other rights of the Charter. Besides, the legal basis of the right is rendered diffuse as the African Commission has located it in differing rights on a case by case basis. This has left the right to water on shifting and amorphous legal bases and entailed normative problems for the right holders as well as duty bearers. The article argues that the Commission has grounded the right on a narrowly-defined legal basis. It also contends that the Commission should follow the approach of the United Nations Committee on Economic, Social and Cultural Rights' General Comment 15 (2002), which declared an autonomous right to water and defined its normative content and related states' obligations.
The African Commission on Human and Peoples' Rights and the promotion and protection of sexual and reproductive rights
The article examines the activities of the African Commission with regard to the advancement of sexual and reproductive health and rights in Africa. The article reviews the importance of applying human rights to sexual and reproductive health issues. It further discusses the promotional and protective mandates of the African Commission with a view to ascertaining whether the Commission has given attention to addressing the sexual and reproductive health challenges facing the region. In this regard, the paper focuses on two important issues – maternal mortality and same-sex relationships. Based on careful analyses of the promotional and protective mandates of the Commission, it is argued that some efforts have been made towards advancing reproductive health and rights in Africa. However, much more effort is needed with regard to sexual health and rights, especially with regard to issues such as same-sex relationships, sex work and violence against women. In conclusion, some suggestions are provided on the role of the African Commission in advancing sexual and reproductive health and rights in the region.
Drawing upon the important insight of critical human rights scholars that 'pro-human rights' are not necessarily 'pro-poor', this article mainly utilises Baxi's germinal thesis on the emergence of a trade-related market-friendly human rights (TREMF) paradigm (that is slowly but surely displacing what he refers to as the UDHR paradigm, much to the advantage of global capital and the rich/powerful/elite, and greatly to the disadvantage of the poor) in assessing the extent to which the norms and jurisprudence of the African human rights system have been pro-poor. After demarcating its scope, outlining its limitations and offering an explanation of the conception of poverty that animates its use of the terms 'the poor' and 'pro-poor', the article analyses the relevant norms and jurisprudence of the African system in the context of the conceptual framework of the study, and concludes that these norms and jurisprudence have tended to be animated by an anti-TREMF (and pro-UDHR paradigm) sensibility, ethic and politics, and have for this and other reasons been more or less pro-poor in orientation. While these findings show that the TREMF paradigm has not completely eaten away at the pro-poorness of the textual affirmations of human rights that guide and have been produced by such international human rights systems, and such texts are important enough in 'loosely' framing and shaping human rights that their character must be carefully studied, it must still be cautioned that such textual affirmations are not self-executing. They must be implemented in the concrete sense by governments, peoples, corporations, institutions and other agents for them to really matter. It should therefore be kept in mind that it is at this level, the level of the 'living' human rights law (that is, the law as it is actually experienced by ordinary people) that the TREMF paradigm's ultimate impact is to be observed. This suggests that the TREMF paradigm may have exerted more influence in the living world than this study (focused as it largely is on 'the text') might suggest.
Customary communities as 'peoples' and their customary tenure as 'culture': What we can do with the Endorois decision
The peoples' rights protected in the African Charter, and in particular the right to culture, development, natural resources and the emphasis on community self-determination and self-identification, potentially provide the basis for creative jurisprudence to protect rural communities and promote their participation in decision making and benefit from the development of their land. In the Endorois decision, the African Commission could have relied on domestic African jurisprudence to give new content to the participation rights of all rural communities living under customary law, and not just those that can prove their own indigeneity. The article deals with the notion of self-defining customary communities in Africa and the jurisprudence of the South African Constitutional Court on living customary law, being varying, localised systems of law observed by numerous communities. The African Charter does not explicitly recognise customary law, but the award of title in the case of the Endorois, the evidence of customary forms of tenure and the centrality of land and associated practices in the culture of the people, amount to such recognition. The article concludes with a note on the procedural aspect of participation in decision making. The consent standard for any limitation on the right to property, culture and development reflects respect for and recognition of customary law and culture. The customary law tenure rules of communities require community permission before outsiders could use and share in the community's property and resources.
A covenant of compassion: African humanism and the rights of solidarity in the African Charter on Human and Peoples' Rights
South Africa's relatively peaceful transition from apartheid to democracy would not have been possible without the prevalence of a spirit of solidarity (ubuntu), not only within South Africa but across the continent, since it is largely due to African solidarity with the struggle against apartheid that an enabling environment for negotiation could be created. Therefore, the importance of including the unique and unprecedented solidarity rights of peoples in the African Charter on Human and Peoples' Rights cannot be emphasised enough. The rights of peoples – to existence, equality, self-determination, sovereignty over natural resources, peace and security, development and a satisfactory environment – were included in the African Charter for historical and philosophical reasons rooted uniquely in the African experience. The recognition of these rights has been resisted in other parts of the world along the lines of ideological division drawn during the Cold War. Solidarity rights, founded on the philosophy of African humanism, did not fit into the Cold War jurisprudential dichotomy, which featured, at the one extreme, the Western emphasis on liberty, rights and competition and, at the other extreme, the Eastern emphasis on equality, duties and compulsion. The solidarity rights rather represented an African emphasis on fraternity, reciprocity and compassion. African humanism has been applied in practice as a viable and valuable legal philosophy, particularly by the Constitutional Court of South Africa. Solidarity rights in the African Charter are similarly applicable as viable and valuable legal constructs, and therefore their precise contents and consequences may and must be explored through practical enforcement.
Unique in international human rights law: Article 20(2) and the right to resist in the African Charter on Human and Peoples' Rights
This article analyses article 20(2) of the African Charter on Human and Peoples' Rights codifying the human right to resist, a unique provision without equivalent in other international treaties, affirming that '[c]olonised or oppressed peoples' have a right 'to free themselves from the bonds of domination by resorting to any means recognised by the international community'. It proposes a two-part test which assesses the grounds for a claim under article 20(2) based on 'oppression' and the scope of consequently permissible means separately, incorporating a consideration of necessity and proportionality. Applying the primary 'grounds' test, positive findings are possible in more than foreign invasion and occupation cases. Peoples facing massive violations amounting to crimes against humanity or genocide, coups d'état or other unconstitutional rule could qualify. Provided all other required conditions are convincingly established, minority peoples facing systematic discrimination and exclusion could also qualify, as could majorities or minorities in situations of foreign economic domination amounting to an interference with the right to self-determination. Systematic violations of economic and social rights of either a majority or a minority people could also produce a valid claim to a right to resist economic 'oppression'. Regarding the secondary 'means' test, adjudicators are constrained by the lack of clear permissions in established customary law on the right to employ armed force to resist domestic oppression. For otherwise illegal means short of armed force – those peaceful and other means that are at the illegal end of the spectrum of tactics and therefore not generally authorised due to ordinary limitations under the lex generalis – the gaps in the law resulting from both 'constructive ambiguity' and limited findings in the universal system may provide greater latitude. These create openings for fresh African construction, particularly as to exceptionally authorised peaceful but otherwise illegal means.
The African Court on Human and Peoples' Rights' order in respect of the situation in Libya: A watershed in the regional protection of human rights?
The article considers the significant features of the order rendered by the African Court on Human and Peoples' Rights in respect of the situation in Libya after protests that began on 16 February 2011. During the first weeks of the unrest, the government of Libya responded to protests across the country in a highhanded and violent manner, further worsening the situation which escalated even further to a more serious level of human rights violations. The applicants – human rights organisations – petitioned the African Commission on Human and Peoples' Rights in respect of the deteriorating circumstances that were unfolding across Libya. The African Commission did not grant provisional measures; instead it referred the matter to the African Court. The Court swiftly responded to the African Commission's petition by granting an order for provisional measures. This note looks at features of the Court's order and reflects on its significance. Beyond this matter, the article looks at the relationship between the Court and the Commission and highlights lessons from the Inter-American regional system from which stakeholders within the African system could draw. It also looks at what the emergence of the African Court means to various stakeholders in the region.
Fundamental Rights Enforcement Procedure Rules, 2009 as a tool for the enforcement of the African Charter on Human and Peoples' Rights in Nigeria: The need for far-reaching reform
The article traces the evolution of FREP rules in Nigeria and highlights the problems which gave rise to FREP Rules, 2009. The article discusses the new rules and acknowledges that their objectives are laudable. For instance, the new Rules had to a large extent solved the thorny issues of how to commence human rights actions, expensive filing costs, service and limitation of action. However, the article notes that it is unusual for Rules of Court to have a preamble. The FREP Rules, 2009, therefore, depart from the usual standard. The fact that the laudable objectives of the FREP Rules are contained in a preamble may minimise their legal effect since preambles do not have the same legal force as substantive provisions. What is more, a number of provisions of the Rules are inconsistent with the provisions of the Constitution of Nigeria, 1999, and stand the risk of being declared null and void to the extent of their inconsistency in adversarial proceedings. There are a few provisions in the FREP Rules, 2009, which may be adverse to the interest of victims of human right violations compared to the FREP Rules, 1979. These include the abolition of application for leave of court and the requirement to front-load evidence together with a written address before commencing an action. These requirements may be counter-productive as counsel will require more time for research. Also, the Court of Appeal decision and the argument that FREP Rules have a constitutional flavour are misconceived and may be counter-productive as it will introduce rigidity into the review of the rule. The challenges posed with the enforcement of human rights in Nigeria are multi-faceted (constitutional, judicial and social). Therefore, a simplistic attempt to solve them through a review of the FREP Rules is surely inadequate. The article calls for legislative intervention to make the provisions of chapter II enforceable and to amend section 12(1) which requires domestication of treaties and conventions as a precondition for their enforcement.
There are three major reasons why ideas associated with ubuntu are often deemed to be an inappropriate basis for a public morality in today's South Africa. One is that they are too vague; a second is that they fail to acknowledge the value of individual freedom; and a third is that they fit traditional, small-scale culture more than a modern, industrial society. In this article, I provide a philosophical interpretation of ubuntu that is not vulnerable to these three objections. Specifically, I construct a moral theory grounded on Southern African world views, one that suggests a promising new conception of human dignity. According to this conception, typical human beings have a dignity by virtue of their capacity for community, understood as the combination of identifying with others and exhibiting solidarity with them, where human rights violations are egregious degradations of this capacity. I argue that this account of human rights violations straightforwardly entails and explains many different elements of South Africa's Bill of Rights and naturally suggests certain ways of resolving contemporary moral dilemmas in South Africa and elsewhere relating to land reform, political power and deadly force. If I am correct that this jurisprudential interpretation of ubuntu both accounts for a wide array of intuitive human rights and provides guidance to resolve present-day disputes about justice, then the three worries about vagueness, collectivism and anachronism should not stop one from thinking that something fairly called 'ubuntu' can ground a public morality.
Indigenous peoples and the right to culture: The potential significance for African indigenous communities of the Committee on Economic, Social and Cultural Rights' General Comment 21
Indigenous peoples in Africa currently experience a range of human rights abuses. Recently, the United Nations Committee on Economic, Social and Cultural Rights released General Comment 21 on the right to take part in cultural life (ICESCR article 15(1)(a)). This contribution examines the relevance of General Comment 21 and its interpretation of article 15(1)(a) for African indigenous groups.
The relationship between the right of access to education and work, and sub-regional economic integration in Africa
After considering the core objective of the sub-regional economic communities (RECs) in Africa and the obligations that human rights impose, this article submits that the right to access education, the creation of employment and the right to access work intra-regionally are central to economic integration in Africa. Consequently, the article analyses how economic integration involves these rights and the extent to which these rights may act as catalysts to deepening economic integration in RECs. It concludes that state parties to the RECs must allow free movement of persons and the right of establishment to enable community citizens to have access to education and work.
Victims of international crimes have had little, if any, role and voice in international criminal proceedings. In fact, victims in such proceedings have mostly been mere observers and witnesses. This global practice reflects the status of victims of international crimes as it was until the emergence of the International Criminal Court. The Court has brought about an era where victims of international crimes will not only have a true voice in criminal proceedings, but they will also participate in such proceedings as victims. Of importance is the fact that they are now entitled, by right, to compensation and reparation. The article traces international legal developments relative to the protection of the rights of victims of international crimes. It briefly examines comparable domestic and regional legal frameworks and practices on victim rights protection. The principal aim of the study is to discuss lessons that can be replicated in East Africa as a possible model for the protection of the rights of victims of international crimes.
In many societies, including Nigeria, persons with disabilities (PWDs) are extremely poor and disadvantaged. Economic empowerment is an effective means through which PWDs can fend for themselves and reduce poverty. The article focuses on the right of PWDs in Nigeria to economic empowerment. It argues that PWDs in Nigeria lack the opportunity to economically empower themselves, especially in relation to the Nigerians with Disability Act 1993. It also suggests ways through which PWDs can attain economic empowerment.
The United Nations' Mapping Exercise Report and Uganda's involvement in the Democratic Republic of Congo conflict from 1996 to 2003
The United Nations' 'DRC Mapping Exercise Report – Mapping of the most serious human rights and international humanitarian law violations committed in the DRC between 1993-2003 (August 2010)' was finally published in October 2010, albeit with clarifications, after strong objections from the countries that were adversely mentioned in it, including from Uganda. The article discusses the allegations levelled against Uganda in light of findings by other institutions, namely, the African Commission on Human and Peoples' Rights, which in 2003 found Uganda in violation of provisions of the African Charter on Human and Peoples' Rights, and the International Court of Justice, which in 2005 found Uganda responsible for violations of the law of belligerent occupation, human rights and the international law of armed conflict. The key argument of the paper is that, instead of the government of Uganda dismissing the report, it should institute measures to investigate and prosecute its agents who committed crimes during this conflict. As well, instead of dismissing the report as untrue, the Ugandan government should have put the record straight by responding to the allegations.
Prosecuting the President of Sudan: A dispute between the African Union and the International Criminal Court
The indictment of the President of Sudan has provoked negative responses from the African Union, including a resolution that instructed member states of the AU not to co-operate with the ICC in arresting the President and surrendering him for trial in the ICC. The AU relied on article 98(2) of the ICC Statute in terms of which the ICC may not proceed with a request for surrender that would require a state to act inconsistently with its obligations under international law with respect to the sovereign immunity of, inter alia, heads of state. However, it has been decided that under the rules of international law, sovereign immunity applies only to prosecutions in national courts and not to prosecutions in an international tribunal, and article 27(2) of the ICC Statute accordingly provides that sovereign immunity shall not bar the ICC from exercising jurisdiction over persons enjoying such immunity. It is argued in this article that article 98(2) contradicts article 27(2): If a head of state does not enjoy immunity against prosecution in the ICC, there is no immunity to be waived by the national state. A pre-trial chamber of the ICC did not base the obligation of state parties (Kenya and Chad) to arrest and surrender the Sudanese President for prosecution in the ICC on the provisions of article 27, but on the fact that the situation in Sudan was referred to the ICC by the Security Council of the United Nations and a passage in the Security Council resolution calling on Sudan and all other parties to the conflict in Darfur to co-operate fully in bringing the President of Sudan to justice. The exact implications of article 98(2) therefore remain unresolved.
Dawn of a new decade? The 16th and 17th sessions of the African Committee of Experts on the Rights and Welfare of the Child
The 16th and 17th sessions of the African Committee of Experts on the Rights and Welfare of the Child took place at the African Union Commission Headquarters in Addis Ababa, Ethiopia, in November 2010 and March 2011, respectively. This article provides an overview of these sessions, together with the Civil Society Organisations Fora that preceded these sessions. These sessions featured significant developments in the work of the Committee. The first relates to a new collaboration between a network of five non-governmental organisations and the Committee to promote the work of this treaty body. Secondly, the Committee delivered its first communication, finding against the government of Kenya in regard to the right to nationality (amongst other rights) of Nubian children in Kenya. These two activities are major highlights for the Committee in the execution of its mandate. It is argued that, despite the challenges faced by the Committee, it is at the threshold of a new era through which it may be established as a significant regional human rights treaty body.