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Abstracts: Volume 6 No 2 2006

Conference paper: Perspectives on the African Commission on Human and Peoples' Rights on the occasion of the 20th anniversary of the entry into force of the African Charter on Human and Peoples' Rights
by Bahame Tom Nyanduga
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In this contribution, which was delivered as a speech to the participants of the 15th African Human Rights Moot Court Competition, one of the members of the African Commission, Commissioner Nyanduga, provides an overview of the major successes, challenges and prospects of the African Commission. After providing a historical background, Commissioner Nyanduga highlights the SERAC case as one of the Commission's significant successes. He concludes that, although the Commission remains hampered by numerous constraints, such as limited resources and poor state reporting, the establishment of an African Court, in particular, holds the prospect of improved enforcement of human rights on the African continent.


The appeal of the African system for protecting human rights
by Jean Didier Boukongou
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Twenty years after the African Charter on Human and Peoples' Rights came into force and with the advent of an African Court on Human and Peoples' Rights, it is legitimate and appropriate to ask questions about the appeal of the African system for protecting human rights. Are the way it functions and its results effective in attracting a large number of complaints and, in the face of competition from the universal system, is it preferred by the victims of violations against human rights in Africa? Does this system merely exist or does it contribute to a substantial improvement in good state practices, reinforcing democracy, good governance and human security in Africa? According to an evaluation that has been made, the functioning of the system remains hampered by numerous obstacles and challenges. The limits and imperfections of the African system can be surmounted with the real will of the member states of the African Union. The arguments previously evoked about African cultures should be abandoned, as the universality of human rights is not an obstacle to the diversity of cultures. The appeal of the African procedures of human rights is marked by the debate on the pertinence of the fusion between the African Court and the Court of Justice of the AU. While a normative clean-up of the African Charter seems necessary in so far as duties are concerned, all the more so as doctrine indicates that it is no longer truly valid in the present context of democratic renewal, it equally seems imperative, at the institutional level, that if the AU wants to improve the system, it would be better to go beyond the idea of a fusion of the two organs to enlarge the field of competence and action of the African system of protecting human rights, by including a competence in criminal matters.


The African Commission on Human and Peoples’ Right and the development of fair trial norms in Africa
by Nsongurua J Udombana
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In this contribution, the author assesses the African Commission's efforts at developing and defending fair trial norms under the African Charter. After discussing resolutions and declarations dealing with faitr trial rights adopted by the Commission, the case law of the Commission is analysed. Aspects that are covered include the right to counsel, to be tried within a reasonable time, the right to a public trial, the right to appeal and the prohibition of ex post facto laws. The author concludes that the African Commission should be commended for its inspiring interpretation of the African Charter, but notes that these norms are not given effect to by way of effective remedies.


Enforcing the economic, social and cultural rights in the African charter on Human and Peoples’ Rights: Twenty years of redundancy, progression and significant strides
by Christopher Mbazira
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The fight against poverty and underdevelopment in Africa is amongst others dependent on how successfully the socio-economic rights protected in both the regional and universal instruments are concretised. The last 20 years since the adoption of the African Charter show a slow but steady move towards such concretisation. The African Commission has moved from a stage of redundancy, when not much was done to give normative content to the rights, to a stage of progression, in which the African Commission has started giving content to the rights. In spite of this, the recommendations of the African Commission are yet to be taken seriously not only by state parties, but by the African Union. There is no reliable mechanism to enforce the recommendations of the African Commission and, as the African Court on Human and People's Rights begins operation, its success is likely to be hampered by the same problem. This is in spite of the fact that the African Court has a wide remedial mandate in comparison to the African Commission. As the African Court propels the African human rights system into a stage of significant strides, this is the biggest obstacle in its way. The African Union is central in sanctioning states that fail to implement the judgments of the African Court. However, history shows that the Assembly of Heads of State and Government has always been reluctant to sanction its members. Unless there is a change of heart and more commitment to human rights, this practice is likely to persist and thereby negatively impact on the rights protected by the African Charter.


The jurisprudence of the African Commission in Human and People’s Rights with respect to people’s rights
by Solomon A Dersso
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The African Charter has many unique features that have given it a place of its own in the family of human rights instruments. The most important of these is its departure from the individual rights orientation of almost all human rights instruments by entrenching collective rights of peoples. It is the only instrument to provide for an elaborate list of peoples' rights beyond and above the internationally recognised and controversial right of all peoples to self-determination. Nevertheless, since the African Charter provides no definition to the term 'peoples' and the formulation of the rights in the Charter invites various interpretations, which are not always consistent, the elaboration of peoples' rights by the Charter was received with little or no optimism. This article seeks to examine the extent to which such expectations were borne out in the interpretations and applications of peoples' rights in the jurisprudence of the African Commission. To that end, the article seeks to identify the conceptual and legal issues raised with respect to peoples' rights and examines how the African Commission addressed them. Although it is maintained here that the jurisprudence of the Commission has clarified many of the doubts and questions that have been raised with respect to peoples' rights in the Charter, opening a new direction for the development of jurisprudence on such rights, there are some outstanding issues that the jurisprudence of the Commission did not address. The examination of the Commission's jurisprudence further reveals that there is no commonly discernable thread in the conceptualisation and interpretation of peoples' rights.


Protecting indigenous peoples in Africa: An analysis of the approach of the African Commission on Human and Peoples' Rights
by Kealeboga N Bojosi and George Mukundi Wachira
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In 2003, the African Commission established a Working Group of Experts on Indigenous Populations/ Communities in Africa. This development has been heralded as a recognition of the existence of particular marginalised groups in Africa identifying themselves as indigenous peoples whose rights are protected by the African Charter. The establishment of the African Commission's Working Group was largely a regional manifestation of the developments taking place at international law. This article discusses the concept of indigenous peoples as it is developing at international law and under the African human rights system. It also explores the extent to which the African Charter, according to the African Commission's Working Group, accommodates the rights of indigenous peoples.


Standing and the African Commission on Human and Peoples' Rights
by Morten Peschardt Pedersen
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The African Commission has in its individual communications procedure adopted an approach where no connection needs to be present between the victim and the complainant in a case. The reasoning is justified as allowing Africans with limited economic or technical abilities to have a chance to have their cases heard. The broad approach to standing has led to difficulties for complainants to provide sufficient evidence and information as well as unexplained withdrawals of cases. This article explores the Commission's approach to standing, focusing on the preparatory work of the African Charter and communications decided by the Commission. It concludes that a connection to the victim of the alleged violation should be present, while at the same time ensuring an open procedure, allowing accessibility for victims with limited economic or technical abilities. It is suggested that the procedure of the CEDAW Committee should be used as a point of departure. With the inauguration of the African Court on Human and Peoples' Rights, it is imperative that the African Commission works efficiently and smoothly to ensure a trustworthy regional mechanism, amongst others requiring that a solid foundation of evidence and certainty be present.


An analysis of the approach to the right to freedom from torture adopted by the African Commission on Human and Peoples' Rights
by Jamil Ddamulira Mujuzi
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While the right to freedom from torture is one of the few non-derogable rights, it is also one of the rights commonly violated in Africa. The right to freedom from torture is protected under article 5 of the African Charter. This article looks at the measures the African Commission has put in place to protect the right to freedom from torture in the last 20 years that the African Charter has been in force. The definition of torture is given, the principle of jus cogens is discussed, and the general situation of torture in Africa is reviewed. The article also discusses the human rights instruments in Africa and how they protect the right to freedom from torture. In particular, the African Charter and the African Charter on the Rights and Welfare of the Child are discussed and emphasis is put on the mechanisms in those treaties and how such mechanisms have been used to protect the right to freedom from torture. On the role of the African Commission and how it has used its mechanisms to protect the right to freedom from torture, the article looks at how torture has been dealt with in the seminars and workshops organised by the African Commission, how the African Commission has laid down rules and co-operated with other African and international institutions to protect the right to freedom from torture, and how it has protected the right to freedom from torture through individual communications. The role of the Special Rapporteur on Prisons and Conditions of Detention in Africa in protecting the right to freedom from torture and the Robben Island Guidelines are also discussed in detail. The author recommends that Africa should adopt a torture-specific treaty, as has been the case in the European and Inter-American systems of human rights if the right to freedom from torture is to be protected effectively.


The right to an effective remedy under the African Charter on Human and Peoples' Rights
by Godfrey M Musila
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The question of remedies lacks clarity in international human rights law, in particular under the African Charter on Human and Peoples' Rights. Yet, no protected right would have any meaning to its claimants without the provision for effective mechanisms to give effect to it, including an effective remedy when breached. The very concept of a right carries with it a duty to redress its violation. While the African Charter does not contain a specific provision on the right to an effective remedy, a somewhat rudimentary jurisprudence and practice has emerged through 'situational' interpretation. This article considers the chequered practice of the African Commission with regard to this right under the African Charter, arguing that the 'remedies jurisprudence' from the Commission lacks in theorisation, is inconsistent and unco-ordinated. As such, the African Commission's laudable efforts in elaborating substantive Charter standards are not complemented by a reasoned remedies jurisprudence. The article outlines the right to effective remedies in two respects. It reviews generally the African Commission's jurisprudence specific to this right with a view to establishing its thinking. In this regard, because of the focus of the African Commission's jurisprudence, the article pays more attention to domestic remedies as opposed to locating this jurisprudentially in international human rights law generally By reviewing the practice of the African Commission in respect of the communications procedure, which it concludes as being for the most part deferential to states, it evaluates the Commission's effectiveness as a forum of recourse for human rights violations. It also considers, in an abridged manner, how the Protocol to the African Court on Human and Peoples' Rights may change, if at all, the regime on remedies under the Charter.


Twenty years of elusive enforcement of the recommendations of the African Commission on Human and Peoples' Rights: A possible remedy
by George Mukundi Wachira and Abiola Ayinla
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It has been two decades since the African Commission was inaugurated and still its effective execution of its mandate is debatable. While it has undoubtedly made some progress, particularly in its protective mandate of considering communications from individuals, the recommendations it has hitherto issued have largely been ignored by state parties. This paper, written from an insider's perspective — the authors having worked with the African Commission — argues for a review of the system in practice in a bid to ensure the enforcement of the Commission's recommendations. It calls on the Assembly of Heads of State and Government of the African Union to adopt the recommendations of the African Commission as its binding decisions, whose breach attracts sanctions. The paper finally examines the possible role of the newly established African Court on Human and Peoples' Rights in the enforcement of the decisions of the African Commission.


Poverty reduction strategies and the rights to health and housing: The Malawian and Ugandan experiences
by Redson Edward Kapindu
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This article examines the poverty reduction strategies of Malawi and Uganda, namely, the Malawi Poverty Reduction Strategy Paper (2002) and the Uganda Poverty Eradication Action Plan (1997). This is done with a view to assessing the extent to which these strategies act as tools towards the progressive realisation of the rights to health and housing in the two countries. The article provides this analysis from a human rights-based approach. The paper argues that the poverty reduction strategies of the two countries under examination are seriously lacking from a rights-based perspective as they fail to address these two rights sufficiently. They even fall short of recognising health and housing as human rights. Against the backdrop of the overarching economic policies of the World Bank and the International Monetary Fund, the paper demonstrates how these strategies address the issue of poverty reduction as mere programmatic rather than a human rights issue, and largely directed by the dictates of the International Monetary Fund and the World Bank. The result is that, notwithstanding some levels of popular participation in their drafting, particularly evident in the case of Uganda, the countries under study cannot assume full ownership of their strategies and this undermines the basic ethos behind the principle of national sovereignty and the right to self-determination.


Bumps on the road: A critique of how Africa got to NEPAD
by Kwadwo Appiagyei-Atua
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This paper explores the notion of 'political independence without economic independence' in the context of the ground-breaking decision made by African states to embrace the neo-liberal economic path to development. This market-based economic agenda is expressed in the New Partnership for Africa's Development (NEPAD). The paper analyses, in a rights-based context, the ideological battle that has been waged between Western powers and African states (through the now defunct Organization of African Unity, and the United Nations) in terms of defining and controlling the agenda for the economic development of Africa. Among others, the work examines the economic policies developed by African and other developing states, such as the New International Economic Order (NIEO); the Right to Development; the Revised Framework for NIEO; the Lagos Plan of Action; the Structural Adjustment Programme; Africa's Programme for Economic Recovery 1986-1990 (APPER, later converted into the United Nations Programme of Action for Africa's Economic Recovery and Development (UN-PAAERD)); the African Charter for Popular Participation and finally, NEPAD. It concludes, among others, that the decision by African leaders to design and adopt NEPAD as its framework for economic development is a further confirmation of the entrenched economic dependence of African states and reveals the extent to which Western states continue to dictate, control and overrule attempts by African states to set their own economic agenda. Also, the implementation of NEPAD in its present shape and form will not necessarily foster a climate of respect for human rights and fundamental freedoms.

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