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.
Editor-in-chief, Professor of law, Centre for Human Rights and Faculty of Law
Professor of human rights law and Director, Centre for Human Rights
Senior lecturer, Faculty of Law
Isabeau De Meyer
Programme Manager, Centre for Human Rights
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
Professor of law and Director, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund, Sweden
Senior lecturer in public international law, Queen's University of Belfast, Ireland
Professor of law, University of Ghana
Professor of law, University of Leiden and Member, International Law Commission
Professor of human rights law and Director, Netherlands Institute of Human Rights (SIM), University of Utrecht
Abdul G Koroma
Judge, International Court Of Justice
Legal Counsel, World Intellectual Property Organisation
Chief Justice, Constitutional Court Of South Africa
HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch
Professor of law, Dickinson School of Law, Pennsylvania State University, USA
Associate professor of law, Faculty of Law, Makerere University, Uganda
Justice, Constitutional Court of South Africa
Secretary of the International Court of Justice
Myres S McDougal Professor of international law, Yale Law School, USA
Geraldine Van Bueren
Professor of international human rights law, University of London