The main feature of this issue of the African Human Rights Law Journal is the focus on a subject of great global controversy and debate: law, religion and human rights in Africa. Although the Journal generally contains contributions of a general nature, it has in the past devoted parts of its contents to specific issues: commemorating the entry into force of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (2006 Vol 6 No 1) and the entry into force of the African Charter on Human and Peoples' Rights (2006 Vol 6 No 2).
However, the focus in this issue differs in that it presents the first example of collaboration between the Journal and outside experts acting as guest editors. These guest editors are Professor Johan van der Vyver and Christian Green from the Center for the Study of Law and Religion (CSLR) at Emory University School of Law, in the United States. Earlier this year, CSLR organised a conference on 'Law, religion and human rights in Africa', which took place in Durban, South Africa, with financial support of the Henry Luce Foundation. The 'focus' feature contains papers delivered during the conference. Reflecting both the debates during the conference and providing an overview of the papers, the guest editors of the 'focus' section prepared a comprehensive Introduction.
We are thankful to the guest editors for the quality and variety of the papers and for their professionalism in ensuring peer review and follow-up with authors. Without a doubt, these papers make a significant contribution to important and ongoing debates. Thus far, the issues under discussion have not been explored sufficiently from an African perspective. The 'focus' section in this issue of the Journal succeeds in filling this gap.
This issue of the Journal contains a few other contributions, aimed at issues of importance in specific African countries. As in many previous issues, recent developments pertaining to the African Committee of Experts on the Rights of the Child are also reviewed. It is encouraging that the Committee is now starting to examine state reports. Hopefully the consideration of long-pending communications will follow soon. In line with our aim to include more book reviews, this issue sees three reviews of recently published books.
One of the most significant developments in the African human rights landscape since the publication of the last issue of the Journal is the adoption of the Protocol and Statute of the African Court of Justice and Human Rights, in July 2008. Once this Protocol has been ratified by 15 AU member states, the African Court of Justice and Human Rights will replace the African Court on Human and Peoples' Rights. The African Human Rights Court has also now adopted 'Interim Rules of Procedure', and is ready to entertain cases. So far, no cases are pending before the Court. This state of affairs seems to be as much due to the inertia of the African Human Rights Court, as to that of African civil society and lawyers. As the institution best placed to approach the African Human Rights Court with a first case, the African Commission on Human and Peoples' Rights should develop a clear strategy in this regard.
The editors convey their thanks to the following independent reviewers, who so generously assisted in ensuring the quality of the Journal: Danie Brand, Takele Bulto, Christian Green, Sabelo Gumedze, Magnus Killander, Fikremarkos Merso, Ann Skelton and Johan van der Vyver.
Editors
Frans Viljoen
Editor-in-chief; Professor of Human Rights Law and Director, Centre for Human Rights, University of Pretoria, South Africa
Christof Heyns
Dean and Professor of Human Rights Law, Faculty of Law, University of Pretoria
Tshepo Madlingozi
Senior lecturer, Faculty of Law, University of Pretoria
Assistant editor
Annelize Nienaber
Senior lecturer, Faculty of Law, University of Pretoria
Publication manager
Isabeau de Meyer
Programme manager, Centre for Human Rights, University of Pretoria
Assisted by
Waruguru Kaguongo
Researcher, Centre for Human Rights, University of Pretoria
Magnus Killander
Researcher, Centre for Human Rights, University of Pretoria
Martin Nsibirwa
Programme manager, Centre for Human Rights, University of Pretoria
Titi Uliem
Academic associate, Centre for Human Rights, University of Pretoria
International editorial advisory board
Jean Allain
Senior lecturer in Public International Law, Queen's University of Belfast, Northern Ireland
Fareda Banda
Reader in the Laws of Africa, School of Oriental and African Studies, London
Victor Dankwa
Professor of Law, University of Ghana
Erika de Wet
Professor of International Constitutional Law, University of Amsterdam, The Netherlands
John Dugard
Member, International Law Commission
Abdul G Koroma
Judge, International Court of Justice
Edward Kwakwa
Legal Counsel, World Intellectual Property Organisation, Geneva, Switzerland
Pius Langa
Chief Justice, Constitutional Court of South Africa
Sandy Liebenberg
HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch, South Africa
Tiyanjana Maluwa
Professor of Law, Dickinson School of Law, Pennsylvania State University, USA
Joe Oloka-Onyango
Associate Professor of Law; Director, Human Rights and Peace Centre, Faculty of Law, Makerere University, Uganda
Kate O'Regan
Justice, Constitutional Court of South Africa
Fatsah Ouguergouz
Secretary of the International Court of Justice and Judge, African Court on Human and Peoples' Rights
Michael Reisman
Myres S McDougal Professor of International Law, Yale Law School, USA
Geraldine van Bueren
Professor of International Human Rights Law at Queen Mary, University of London and Visiting Fellow, Kellogg College, Oxford, United Kingdom
2007
Editorial
It is regrettable that we see another issue of the Journal appear without the African Court on Human and Peoples' Rights having become operational. One can only hope that the Court's Rules of Procedures will soon be finalised and that the Court will be up and running in 2008. In the meantime, the African Commission on Human and Peoples' Rights has undergone some significant changes.
At the Commission's 42nd session, in November 2007, four new commissioners took their seats on the Commission: three with six-year terms (Ms Catherine Dupe Atoki (nominated by Nigeria); Ms Sopyata Maiga (from Mali); and Mr Yueng Kam John Yueng Sik Yuen (from Mauritius)), and one serving the remaining two years for Commissioner Babana's term (Ms Zainabou Sylvie Kayitesi (from Rwanda)). Following her re-election, Ms Angela Melo (from Mozambique) took her seat on the Commission for a second six-year term.
With seven women among the total of eleven commissioners, the representation of women on the Commission has reached a high point. The election of an all-women Bureau (consisting of Commissioners Sanji Monageng as Chairperson and Angela Melo as Vice-Chairperson), and the appointment of Ms Mary Maboreke (from Zimbabwe) as Secretary to the Commission, further ensures the strong role of women in the Commission.
In line with African Union directives, none of the new commissioners at the time of their election and taking office held positions in the executive of their nominating countries. Two are practising lawyers (Atoki and Muiga); one is a serving chief justice (Yueng); and one is the head of the national human rights institution (Kayitesi). Ms Atoki also serves as part-time member of the National Human Rights Commission of Nigeria. Ms Kayitesi previously served as a member of the cabinet (as Minister of Public Administration and Labour). (It should be noted, however, that one of the other members of the Commission appointed in 2005, Commissioner Mumba Malila, has in the meantime been appointed as Attorney-General of Zambia.)
All the new commissioners hold legal qualifications, and all have some experience in human rights. Two of the new members (Ms Muiga and Ms Kayetsi) were active as members of civil society, both heading NGOs dealing with women and children's rights. They are also the only new members who have previously attended sessions of and engaged with the Commission. Between 1998 and 2001, Mr Yueng served on the UN Sub-Commission on the Promotion and Protection of Human Rights.
With an average age of 53, the newly elected commissioners conform to recent trends of electing more active and energetic commissioners. Two of the new commissioners are comfortable in only one AU language (Ms Atoki, English; Ms Muiga, French). Hailing from Mauritius and Rwanda, respectively, Commissioners Yueng and Kayitesi are comfortable in both English and French.
The main focus of the Centre for Human Rights is research and education on human rights in Africa. While the Journal aims at furthering research, the Centre's educative goal is best served by the LLM (Human Rights and Democratisation in Africa). On a yearly basis, this programme brings together about 30 students from all over the continent to study international human rights law and democratisation from an African perspective. It is with great shock that we learnt that one of the alumnae of the 2000 LLM programme, Helen Kanzira, a Ugandan national, passed away recently. The cause of her death, complications arising from the birth of her sixth child, turned shock into exasperation that her death should have and could have been prevented.
In response to these circumstances, the Journal resolved to take up the issue of maternal mortality. In this issue, we publish a pertinent and topical contribution about access to emergency obstetric care in Uganda. We invite further contributions on issues pertaining to maternal mortality, infant mortality and reproductive health rights in Africa, for inclusion in our two forthcoming issues. More research is required on the topic, and the academic community should become involved in these issues. Without more awareness-raising programmes, the resolve may lack to reduce the world's maternal mortality rate by 75% from 1990 levels by the year 2015, as the Millennium Development Goals proclaim.
In this issue of the Journal, the evolving importance for human rights of regional economic communities comes under scrutiny in Ebobrah's article about the human rights jurisdiction of the ECOWAS Court. Two other contributions (by Bowman and Nicol-Wilson) focus on international courts (the ICC and the SCSL). The remaining contributions steer between issues of a continental focus (such as the APRM and the continental research agenda on children's rights) and country-specific discussions. Among these, the discussion about the new Eritrean law abolishing female circumcision stands out. A full text of this law is annexed to the discussion.
The editors thank the following people who acted as referees over the period since the previous issue of the Journal appeared: Cecile Aptel, Abiola Ayinla, Gina Bekker, Unity Dow, Ibrahima Kane, Daniel Kifle, Magnus Killander, Aurelie Latoures, Els Leye, Sandra Liebenberg, Michel Ndayikengurukiye, Joe Oloka-Onyango, William Schabas, Ann Skelton, Ann Strode, Mia Swart, Johan van der Vyver, Stella Vettori and Stu Woolman.
Editors
Frans Viljoen
Editor-in-chief, Professor of Human Rights Law and Director, Centre for Human Rights, University of Pretoria, South Africa
Christof Heyns
Dean and professor of Human Rights Law, Faculty of Law, University of Pretoria, South Africa
Assistant editor
Annelize Nienaber
Senior lecturer, Faculty of Law, University of Pretoria, South Africa
Publication manager
Isabeau de Meyer
Programme Manager, Centre for Human Rights, University of Pretoria, South Africa
Assisted by
Kweku Antwi
Programme officer, Centre for Human Rights, University of Pretoria, South Africa
Waruguru Kaguongo
Researcher, Centre for Human Rights, University of Pretoria, South Africa
Magnus Killander
Researcher, Centre for Human Rights, University of Pretoria, South Africa
Martin Nsibirwa
Programme manager, Centre for Human Rights, University of Pretoria, South Africa
International editorial advisory board
Gudmundur Alfredsson
Professor of Law and Director, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund, Sweden
Jean Allain
Senior lecturer in Public International Law, Queen's University of Belfast, Northern Ireland
Fareda Banda
Reader in the Laws of Africa, School of Oriental and African Studies, London
Victor Dankwa
Professor of Law, University of Ghana
Erika de Wet
Professor of International Constitutional Law, University of Amsterdam, The Netherlands
John Dugard
Member, International Law Commission
Cees Flinterman
Professor of Human Rights Law and Director, Netherlands Institute of Human Rights (SIM), University of Utrecht, The Netherlands
Abdul G Koroma
Judge, International Court of Justice
Edward Kwakwa
Legal Counsel, World Intellectual Property Organisation, Geneva, Switzerland
Pius Langa
Chief Justice, Constitutional Court of South Africa
Sandy Liebenberg
HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch, South Africa
Tiyanjana Maluwa
Professor of Law, Dickinson School of Law, Pennsylvania State University, USA
Joe Oloka-Onyango
Associate Professor of Law, Faculty of Law, Makerere University, Uganda
Kate O'Regan
Justice, Constitutional Court of South Africa
Fatsah Ouguergouz
Secretary of the International Court of Justice and judge, African Court on Human and Peoples' Rights
Michael Reisman
Myres S McDougal Professor of International Law, Yale Law School, USA
Geraldine van Bueren
Professor of International Human Rights Law, University of London
2006
Editorial
The African Union Assembly of Heads of State and Government (AU Assembly) at its last session, held in Khartoum, Sudan, in January 2006, considered and authorised the publication of the 19th Activity Report of the African Commission on Human and Peoples' Rights (African Commission or Commission) (Doc EX CL/236 (VIII)). This procedure is regulated by article 59 of the African Charter on Human and Peoples' Rights (African Charter). For only the second time, the Assembly did not approve the publication of an activity report by the Commission as submitted.
It will be recalled that the first occasion was in 2004, when Zimbabwe objected to the publication of the Commission's 17th Activity Report on the basis that it was not granted an opportunity to respond to allegations contained in the Report on an on-site mission to Zimbabwe conducted by the African Commission in 2002. As a result, the whole Report was placed under wraps pending submission of the Zimbabwean response. After the Commission had received these comments, they were included in the Report, which the AU Assembly approved at its next session (in 2005).
On the most recent occasion, the Assembly authorised the publication of the 19th Activity Report of the African Commission and its annexes, except for the part containing the resolutions on Eritrea, Ethiopia, Sudan, Uganda and Zimbabwe. It then added a request to the concerned member states to make available to the African Commission, within three months of the adoption of the Assembly decision, their views on the resolutions. The African Commission is requested to submit a report thereon to the next ordinary session of the Executive Council (July 2006).
The AU Assembly further instituted a practice that in all future instances, the African Commission must ensure that it enlists the responses of all state parties to its resolutions and decisions before submitting them to the AU Executive Council or the AU Assembly for consideration. States are given three months to communicate their responses to resolutions and decisions to the Commission.
The AU Assembly decision blurs the important distinction between the Commission's promotional and protective mandates and significantly curtails the ability of the African Commission to fulfil its mandate to be a watchdog in respect of human rights on the continent.
Under the African Charter, only protective measures dealing with communications are confidential until authorised by the AU Assembly. States have always, under a well-developed communications procedure, been allowed to express their views on communications, and their views have been taken into account in findings. These findings are included in the activity report after states have had ample opportunity to participate in the proceedings. Giving states another opportunity to express their 'views' after a `decision' has been taken serves no purpose.
By contrast, the African Commission's promotional mandate is not confidential and plays itself out in public sessions. Resolutions on countries usually arise from public discussion at the NGO forum preceding the Commission's sessions and from the public debate during the Commission's sessions on the human rights situation in Africa. These discussions inform the resolutions of the Commission. Not being 'findings' or 'decisions', these resolutions form part of the Commission's promotional mandate. Its legal basis is in article 45 of the African Charter, which is not part of the chapter dealing with the Commission's protective mandate. As these resolutions are therefore not subject to authorisation, the AU Assembly is not competent to block their publication. Resolutions need not be sent to states for their comments. There is no legal basis to require this, and as a practical matter, such a requirement (and the timeframes of a three month response period) will seriously impede the African Commission's ability to respond in a timeous and meaningful fashion to emergency situations of serious human rights violations.
The approach followed in this regard flies in the face of the promise of a greater commitment to human rights in the AU Constitutive Act. It is accepted that the Commission does not have the teeth of a court to bite, but the approach followed by the AU Assembly strips the watchdog in a significant way of its ability even to bark.
Turning to more positive developments: At the same session, the AU Assembly confirmed the names forwarded to it by the Executive Council (Doc EX CL/241 (VIII), and thereby elected the first 11 judges of the African Court on Human and Peoples' Rights (Assembly/AU/Dec 100 (VI)). They are: Ms Sophia AB Akuffo (Ghana, elected for a two-year term); Mr GW Kanyiehamba (Uganda, two-year term); Mr Bernard Makgabo Ngoepe (South Africa, two-year term); Mr Jean Emile Somda (Burkina Faso, two-year term); Mr Hamdi Faraj Fanoush (Libya, four-year term); Mrs Kelello Justina Mafoso-Guni (Lesotho, four-year term); Mr Jean Mutsinzi (Rwanda, six-year term); Mr Fatsah Ouguergouz (Algeria, four-year term); Mr Modibo Tountry Guindo (Mali, six-year term); Mr El Hadji Guisse (Senegal, four-year term) and Mr Gërard Niyungeko (Burundi, six-year term).
Generally, these judges comply with the requirements of independence and impartiality. One judge, Mr Somda, is a legal adviser to the Burkinabe Minister of Justice. Hopefully, the AU Assembly will determine the seat of the Court at its next session, in June 2006, and the Court will start functioning later in 2006.
The first human rights treaty adopted by the AU, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Women's Protocol), entered into force on 25 November 2005. Highlighting this important event, the Journal in this issue focuses on some aspects of the Women's Protocol, which to date has been ratified by 17 African states (see Table of Ratifications in this issue).
The editors thank the following people who acted as referees over the period since the previous issue of the Journal appeared: Divine Afuba, Jean Allain, Cecile Aptel, Wolfgang Benedek, Christelle Diwouta, Bernard Dougherty, John Dugard, Kristin Henrard, Mosunmola Imasogie, Waruguru Kaguongo, Hye Young Lim, Tshepo Madlingozi, Gino Naldi, Charles Ngwena, Diane Orentlicher, Michael Reisman, Engela Schlemmer, Gabriel Shumba and Ben Twinomugisha.
Editors
Frans Viljoen
Editor-in-chief, Professor of law, Centre for Human Rights and Faculty of Law
Christof Heyns
Professor of human rights law and Director, Centre for Human Rights
Assistant editor
Annelize Nienaber
Senior lecturer, Faculty of Law
Publication manager
Isabeau de Meyer
Programme Manager, Centre for Human Rights
Assisted by
Magnus Killander
Researcher, Centre for Human Rights
Martin Nsibirwa
Programme Manager, Centre for Human Rights
International editorial advisory board
Gudmundur Alfredsson
Professor of law and Director, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund, Sweden
Jean Allain
Senior lecturer in public international law, Queen's University of Belfast,Ireland
Alfred Chanda
Dean, School of Law, University of Zambia
Victor Dankwa
Professor of law, University of Ghana
John Dugard
Professor of law, University of Leiden, The Netherlands and Member, International Law Commission
Cees Flinterman
Professor of human rights law and Director, Netherlands Institute of Human Rights (SIM), University of Utrecht, The Netherlands
Abdul G Koroma
Judge, International Court of Justice
Edward Kwakwa
Legal counsel, World Intellectual Property Organisation, Geneva, Switzerland
Pius Langa
Chief Justice, Constitutional Court of South Africa
Sandy Liebenberg
HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch, South Africa
Tiyanjana Maluwa
Professor of law, Dickinson School of Law, Pennsylvania State University, USA
Joe Oloka-Onyango
Associate professor of law, Faculty of Law, Makerere University, Uganda
Kate O'Regan
Justice, Constitutional Court of South Africa
Fatsah Ouguergouz
Secretary of the International Court of Justice and Judge, African Court on Human and Peoples' Rights
Michael Reisman
Myres S McDougal Professor of international law, Yale Law School, USA
Geraldine van Bueren
Professor of international human rights law, University of London
2005
Editorial
This issue of the African Human Rights Law Journal is published in the wake of three promising developments in the African human rights system.
The first move forward is the eventual adoption by the African Union Assembly of Heads of State and Government (AU Assembly) of a report resulting from a fact-finding mission undertaken by the African Commission on Human and Peoples' Rights (African Commission) to Zimbabwe. Conducted in 2002, the report served before the AU Assembly in 2004 as part of the African Commission's Seventeenth Activity Report. On that occasion, Zimbabwe thwarted its adoption, on the basis that the Zimbabwean government's comments had not been contained in the Activity Report. (See F Viljoen 'Recent developments in the African regional human rights system' (2004) 4 African Human Rights Law Journal 344.) At its subsequent meeting, in 2005, the AU Assembly adopted this report. The Seventeenth Activity Report, which contains not only the Zimbabwean report, but the full text of all findings of the African Commission during the period mid-2003 to mid-2004, is available at www.chr.up.ac.za
The second positive development is the acceleration towards the launching of the African Court on Human and Peoples' Rights (African Human Rights Court). After the entry into force of the Protocol establishing the African Human Rights Court in January 2004, progress towards its establishment was halted due to a decision of the AU Assembly to the effect that the African Human Rights Court had to be merged with the to-be-established AU Court of Justice. However, the AU Assembly subsequently decided that efforts to integrate the two judicial institutions should not hamper the immediate 'operationalisation' of the African Human Rights Court. Members of the Court therefore are to be elected and the Court's seat assigned at the AU Assembly meeting in mid-2005. (One of the contributions in this issue focuses on the advisory jurisdiction of the Court.)
The advent of the AU saw a proliferation of institutions on the African landscape. Their effective functioning and meaningful contribution largely depend on the people who are appointed or elected to these institutions. The same is true for the Court. As the terms of four members of the African Commission come to an end in July 2005, elections will also be held to fill these positions. In a third progressive development, highlighting the need to ensure independence and gender balance in the composition of the African Commission, the AU (in note verbale BC/OLC/66/Vol XVIII) advised state parties as follows:
As a guide for States Parties in interpreting the question of incompatibility or impartiality, the Advisory Committee of Jurists in the establishment of the Permanent Court of International Justice (now the International Court of Justice (ICJ) had pointed out that '(A) member of government, a Minister or under-secretary of State, a diplomatic representative, a director of a ministry, or one of his subordinates, or the legal adviser to a foreign office, though they would be eligible for appointment as arbitrators to the Permanent Court of Arbitration of 1899, are certainly not eligible for appointment as judges upon our Court.' (See PCIJ/Advisory Committee of Jurists ProcèsVerbaux of the Proceedings of the Committee. June 16-July 24 1920, 693, 715-716 (1920)).
States Parties are also reminded to ensure adequate gender representation in their nominations and to bear in mind the need to continue to enhance the independence and operational integrity of the African Commission in the spirit of the Grand Bay Declaration of 1999 and the Kigali Declaration of 8 May 2003.
As in previous issues of the Journal, contributions in this issue cover legal developments with both a regional and country-specific scope.
Contributions of Oloka-Onyango as well as Ukhun and Inegbedion focus on cultural rights, an aspect that often has been neglected in the African human rights discourse. In an innovative contribution, Chenwi investigates the need for a regional legal instrument on the death penalty in Africa. The previous issue of the Journal contained a report of a seminar on the social, economic and cultural rights in the African Charter on Human and Peoples' Rights. This issue contains the full text of the statement adopted by participants at this seminar.
A number of contributions investigate aspects related to human rights in specific countries (Kenya, Malawi, Nigeria, South Africa and Zimbabwe), which are also relevant to other countries in the region. A good example is Sacco's study of compulsory licensing and parallel importing of HIV/AIDS drugs.
The editors thank the following people who acted as referees over the period since the previous issue of the Journal appeared: Gina Bekker, Danwood Chirwa, Alpha Fall, Edward Kwakwa, Olobi Makinwa, Julie Soweto and Nico Steytler.
Editors
Frans Viljoen
Editor-in-chief, Professor of law, Centre for Human Rights and Faculty of Law
Christof Heyns
Professor of human rights law and Director, Centre for Human Rights
Assistant editor
Annelize Nienaber
Senior lecturer, Faculty of Law
Publication manager
Isabeau De Meyer
Programme Manager, Centre for Human Rights
Assisted by
Lilian Chenwi, Magnus Killander, Martin Nsibirwa and Morné Van Der Linde
Researchers, Centre for Human Rights
Thulani Maseko, Mwiza Nkhata
LLM students, Centre for Human Rights
International editorial advisory board
Gudmundur Alfredsson
Professor of law and Director, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund, Sweden
Jean Allain
Senior lecturer in public international law, Queen's University of Belfast, Ireland
Victor Dankwa
Professor of law, University of Ghana
John Dugard
Professor of law, University of Leiden and Member, International Law Commission
Cees Flinterrnan
Professor of human rights law and Director, Netherlands Institute of Human Rights (SIM), University of Utrecht
Abdul G Koroma
Judge, International Court Of Justice
Edward Kwakwa
Legal Counsel, World Intellectual Property Organisation
Pius Langa
Chief Justice, Constitutional Court Of South Africa
Sandy Liebenberg
HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch
Tiyanjana Maluwa
Professor of law, Dickinson School of Law, Pennsylvania State University, USA
Joe Oloka-Onyango
Associate professor of law, Faculty of Law, Makerere University, Uganda
Kate O'Regan
Justice, Constitutional Court of South Africa
Fatsah Ouguergouz
Secretary of the International Court of Justice
Michael Reisman
Myres S McDougal Professor of international law, Yale Law School, USA
Geraldine Van Bueren
Professor of international human rights law, University of London
2004
Editorial
The launch of this Journal, in 2001, roughly coincided with the transformation of the Organization of African Unity (OAU) into the African Union (AU). By embracing the realisation of human rights as a guiding principle and objective, the AU marks a clear break with its predecessor. Most significantly, the AU Constitutive Act allows for AU-sanctioned intervention in a member state to address the occurrence of genocide and crimes against humanity.
The architecture of the AU includes a number of institutions that are relevant to the promotion and protection of human rights. With the entry into force of the Protocol on the Establishment of an African Court on Human and Peoples' Rights, the Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament and the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, the process of converting paper guarantees into reality is underway. A number of contributions in this issue discuss some of these institutions, such as the Pan-African Parliament and the African Court on Human and Peoples' Rights, focusing on their potential role to further human rights on the continent. Any such discussion should also deal with the New Partnership for Africa's Development (NEPAD), which has been described as the developmental programme of the AU, and the concomitant African Peer Review Mechanism (APRM). Conscious that corruption is a significant impediment to Africa's development, the AU in 2003 adopted the AU Anti-Corruption Convention, which is also discussed in this issue.
Criticism has been expressed that the AU and its institutional frame-work has been imposed onto Africans without prior popular debate or participation of civil society. It is therefore necessary that these institutions and instruments be subjected to academic analysis and scrutiny, and that their human rights potential be highlighted.
Other contributions deal more directly with human rights issues of relevance to Africa. The death penalty in Africa is dealt with in this issue, while its constitutionality is being challenged in Uganda, and while the decision of the African Commission on Human and Peoples' Rights in the matter against Botswana concerning the execution of Marietta Bosch is being awaited. One of the rights that has been prominent in the jurisprudence of the African Commission on Human and Peoples' Rights, the right to a fair trial (article 7), is also considered. An exploratory article investigates the operationalisation of the right to food. The appropriateness of the 'three generations' of human rights is also critically examined from an African perspective.
Some of the communications finalised by the African Commission are cited from a source that may be unfamiliar to readers — the African Human Rights Law Reports (AHRLR). The first volume of the AHRLR (2000) has just been launched. It contains cases decided by UN human rights treaty bodies in respect of African states, and cases decided by the African Commission up to the end of 2000. This publication is edited by the Centre for Human Rights, Pretoria, in collaboration with the Institute for Human Rights and Development, Banjul, The Gambia, and is also published by Juta.
The editors thank the following people who acted as referees over the period since the previous issue of the Journal appeared: Jean Allain, Evarist Baimu, Gina Bekker, Mary Crewe, Edward Dankwa, Mosunmola Imasogie, Anton Kok, Philip Kunig, Edward Kwakwa, Pius Langa, Ola-jobi Makinwa, George William Mugwanya, Joe Oloka-Onyango, David Padilla, Julie Soweto and Nico Steytler.
Editors
Christof Heyns
Professor of human rights law and Director, Centre for Human Rights, University of Pretoria
Frans Viljoen
Editor-in-chief, Professor of law, Centre for Human Rights and Faculty of Law, University of Pretoria
Assistant editor
Annelize Nienaber
Lecturer, Faculty of Law, University of Pretoria
Publication manager
Isabeau De Meyer
Programme Manager, Centre for Human Rights, University of Pretoria
Assisted by
Lilian Chenwi, Magnus Killander, Martin Nsibirwa, Morné Van Der Linde
Researchers, Centre for Human Rights, University of Pretoria
International Editorial Advisory Board
Gudmundur Alfredsson
Professor of law and Director, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund, Sweden
Jean Allain
Professor of law, Department of Political Science, American University in Cairo, Egypt
Victor Dankwa
Professor of law, University of Ghana and Member, African Commission on Human and Peoples' Rights
John Dugard
Professor of law, University of Leiden and Member, International Law Commission
Cees Flinterman
Professor of human rights law and Director, Netherlands Institute of Human Rights (SIM), University of Utrecht
Abdul G Koroma
Judge, International Court of Justice
Edward Kwakwa
Acting legal counsel, World Intellectual Property Organisation
Pius Langa
Deputy Chief Justice, Constitutional Court of South Africa
Sandy Liebenberg
Professor of law, Faculty of Law, University of Stellenbosch
Tiyanjana Maluwa
Professor of law, Dickinson School of Law, Pennsylvania State University, USA
Joe Oloka / Onyango
Associate professor of law, Faculty of Law, Makerere University, Uganda
Fatsah Ouguergouz
Secretary of the International Court of Justice
Michael Reisman
Myres S McDougal Professor of international law, Yale Law School, USA
Geraldine Van Bueren
Professor of international human rights law, University of London
2003
Editorial
The contributions in this issue underscore the concrete and practical approach of this Journal to the African human rights system. Examples are the articles by Onoria and Gumedze, who show how the African Commission can be accessed effectively.
Despite the African Charter being lauded for including socio-economic rights alongside civil and political rights, the jurisprudence of the African Commission remained all but silent on this aspect. With the adoption of the SERAC decision, which has been published in the Commission's Fifteenth Annual Activity Report, the Commission found violations of the right to health and to a satisfactory environment, and read into the Charter a number of socio-economic rights. Two contributions review aspects of this decision.
One of the significant developments under the African Union has been the adoption of a Protocol Establishing an African Peace and Security Council. The contribution by Kindiki focuses on the potential role of this institution on a conflict-ridden continent.
The editors thank the following people who acted as referees over the period since the previous issue of the Journal appeared: John Barker; Gina Bekker; Jakkie Cilliers; Julia Harrington; Edward Kwakwa; Tiyanjana Maluwa; Gino Naldi; Chidi Odinkalu and EK Quansah.
Many of the sources referred to in this Journal (such as the African Charter and the African Charter on the Rights and Welfare of the Child) are reprinted in C Heyns (ed) Human rights law in Africa 1996 up to Human rights law in Africa 1999, cited as eg Human rights law in Africa 1996 in this Journal. These sources are also often available on the website of the Centre for Human Rights, www.up.ac.za/chr.
This issue of the Journal should be cited as (2003) 3 African Human Rights Law Journal.
Editors
Christof Heyns
Professor of human rights law and Director, Centre for Human Rights, University of Pretoria
Frans Viljoen
Editor-in-chief, Professor of law, Centre for Human Rights and Faculty of Law, University of Pretoria
Assistant editor
Annelize Nienaber
Lecturer, Faculty of Law, University of Pretoria
Editorial assistant
Isabeau De Meyer
Project Manager, Centre for Human Rights, University of Pretoria
Student editors
Bill Alexander, Evarist Baimu, Lilian Chenwi, Thokozani Kaime, Magnus Killander, Lirette Louw, Lawrence Mashava, Morné Van Der Linde
Centre for Human Rights, University of Pretoria
International Editorial Advisory Board
Gudmundur Alfredsson
Professor of law and Director, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund, Sweden
Jean Allain
Department of Political Science, American University in Cairo, Egypt
Victor Dankwa
Professor of law, University of Ghana and Member, African Commission on Human and Peoples' Rights
John Dugard
Professor of law, University of Leiden; Member, International Law Commission and honorary professor, Centre for Human Rights, University of Pretoria
Cees Flinterman
Professor of human rights and Director, Netherlands Institute of Human Rights (SIM), University of Utrecht
Abdul G Koroma
Judge, International Court of Justice
Edward Kwakwa
Assistant legal counsel, World Intellectual Property Organisation
Pius Langa
Deputy Chief Justice, Constitutional Court of South Africa
Sandy Liebenberg
Professor of law, Community Law Centre, University of the Western Cape
Tiyanjana Maluwa
Legal adviser, Office of the High Commissioner for Human Rights and honorary professor, Centre for Human Rights, University of Pretoria
Joe Oloka-Onyango
Associate professor of law, Faculty of Law, Makerere University, Uganda
Geraldine Van Bueren
Professor of international human rights law, University of London
2002
Editorial
The majority of contributions to this issue of the African Human Rights Law Journal are devoted to the to-be-established African Court on Human and Peoples' Rights. The Protocol providing for the creation of this Court was adopted in 1998. It is reprinted in C Heyns (ed) Human rights law in Africa 1999 (2002) 279. Still, it has not received the required 15 ratifications to ensure its entry into force. Indeed, at the moment only six states (Burkina Faso, The Gambia, Mali, Senegal, South Africa and Uganda) have ratified the Protocol. (South Africa ratified the Protocol after the 31st session of the Commission had taken place.) As a contribution to the campaign to speed up the process of ratification, the Centre for Human Rights, University of Pretoria, organised a conference on aspects of the Protocol on the African Court during the NGO workshop preceding the African Commission's 31st session, held in Pretoria in May 2002. A number of articles in this issue were presented as papers at this conference.
When the Commission met, it adopted the following resolution on the African Court:
Resolution on the ratification of the protocol to the African Charter on Human and Peoples' Rights on the establishment of an African court on human and peoples' rights
The African Commission on Human and Peoples' Rights, meeting at its 31st ordinary session in Pretoria, South Africa, from 2 to 16 May 2002:
RECALLING that the Assembly of Heads of State and Government of the Organisation of African Unity (OAU) adopted the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights at its 19th ordinary session on 9 July1998 in Ouagadougou, Burkina Faso;
NOTING with satisfaction that 26 states have signed the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights
Editors
Christof Heyns
Professor of human rights law and Director, Centre for Human Rights, University of Pretoria
Frans Viljoen
Editor-in-chief, Professor of law, Centre for Human Rights and Faculty of Law, University of Pretoria
Assistant editor
Annelize Nienaber
Lecturer, Faculty of Law, University of Pretoria
Editorial assistant
Isabeau de Meyer
Project Manager, Centre for Human Rights, University of Pretoria
Student editors
Evarist Baimu, Martin Nsibirwa, Lirette Louw, Idi Gaparayi and Morné van der Linde
LLD candidates, Centre for Human Rights, University of Pretoria
International editorial advisory board
Gudmundur Alfredsson
Professor of law and Director, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund, Sweden
Victor Dankwa
Professor of law, University of Ghana and Member, African commission on Human and people's Rights
John Dugard
Professor of law, University of Leiden; Member, international Law Commisions and honorary professor, centre for Human Rights, University of Pretoria
Cees Flinterman
Professor of human rights and Director, Netherlands Institute of Human Rights (SIM), University of Utrecht
Abdul G Koroma
Judge, International Court of Justice
Edward Kwakwa
Assistant legal counsel, World Intellectual Property Organisation
Pius Langa
Deputy Chief Justice, Constitutional Court of South Africa
Sandy Liebenberg
Professor of law, Community Law Centre, University of the Western Cape
Tiyanjana Maluwa
Legal adviser, Office of the High Commissioner for Human Rights and honorary professor, Centre for Human Rights, University of Pretoria
Joe Oloka-Onyango
Associate professor of law, Faculty of Law, Makerere University, Uganda
Geraldine van Bueren
Professor of international human rights law, University of London
2001
Editorial
The Organisation of African Unity (OAU) adopted the African Charter on Human and Peoples' Rights (African Charter) 20 years ago, in 1981. This 20 year celebration as well as current reform processes within the OAU invite reflection about the provisions of the African Charter.
The Centre for Human Rights, University of Pretoria, organised a conference to address this topic. The conference took place from 26 to 28 March 2001. The title of the conference 'The future of the African regional human rights system' indicates its aim — to assess the need for reform of the African human rights system. This issue contains papers delivered at the conference.
Christof Heyns and Shadrack Gutto provide two perspectives on the question whether the Charter is in need of reform. Thereafter, Kenneth Acheampong and Rachel Murray discuss the substantive rights in the Charter, and possibilities for reform. The reform of procedural aspects of the Charter is considered in the contributions by Chidi Odinkalu, Julia Harrington and George William Mugwanga. Finally, Andreas O'Shea provides a critical reflection on the Protocol establishing the African Court on Human and Peoples' Rights.
In the recent developments section, Evarist Baimu provides an introduction to the African Union and its potential role in respect of human rights. The Constitutive Act of the African Union is reprinted in full.
The next issue of the Journal, due March 2002, will partly be devoted to the following topics: HIV/AIDS and human rights in Africa, and the establishment of the Committee implementing the African Charter on the Rights and Welfare of the Child. We also encourage the submission of shorter contributions discussing human rights related cases recently decided by domestic African courts. Contributions on these issues should reach the editors by 31 December 2001.
The financial assistance of the European Union towards the publication of this Journal is gratefully acknowledged.
Further information on human rights in Africa and copies of African human rights treaties are available on the Centre's web site, http://www.up.ac.za/chr.
Editors
Christof Heyns
Professor of human rights law and Director, Centre for Human Rights, University of Pretoria
Frans Viljoen
Editor-in-chief, Professor of law, Centre for Human Rights and Faculty of Law, University of Pretoria
Assistant editor
Annelize Nienaber
Lecturer, Faculty of Law, University of Pretoria
Editorial assistant
Isabeau de Meyer
Project co-ordinator, Centre for Human Rights, University of Pretoria
Student editors
Evarist Baimu, Martin Nsibirwa and Morné van der Linde
LLD candidates, Centre for Human Rights, University of Pretoria
Georg Sommeregger
Visiting fellow, Centre for Human Rights, University of Pretoria
International Editorial Advisory Board
Gudmundur Alfredsson
Professor of law and Director, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund, Sweden
Victor Dankwa
Professor of law, University of Ghana and Chair, African Commission on Human and Peoples. Rights
John Dugard
Professor of law, University of Leiden; Member, International Law Commis- sion and Honorary professor, Centre for Human Rights, University of Pretoria
Cees Flinterman
Professor of human rights and Director, Netherlands Institute of Human Rights (SIM), University of Utrecht
Abdul G Koroma
Judge, International Court of Justice
Edward Kwakwa
Assistant legal counsel, World Intel- lectual Property Organisation
Pius Langa
Deputy President, Constitutional Court of South Africa
Sandy Liebenberg
Professor of law and Acting Director, Community Law Centre, University of the Western Cape
Tiyanjana Maluwa
Legal counsel, Organisation of Afri- can Unity and Honorary professor, Centre for Human Rights, University of Pretoria
Joe Oloka-Onyango
Dean, Faculty of Law, Makerere Uni- versity, Uganda
Geraldine van Bueren
Professor of international human rights law, University of London
