Saturday, November 23, 2019

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Yemi Akinseye-George

excerpted from: Yemi Akinseye-George, New Trends in African Human Rights Law: Prospects of an African Court of Human Rights, 10 University of Miami International and Comparative Law Review 159-175, 168-170 (2001-2002) (55 footnotes)

 

Notwithstanding its defects (and they are many), the African Charter and the African Commission have had some important beneficial effects on the domestic law and practice relating to human and peoples' rights in several African countries.

First, the Charter has positively impacted (albeit indirectly) the development of constitutional law with particular reference to human rights. The last decade has witnessed the adoption of new constitutions that incorporate bill of rights in a manner similar to those contained in the African Charter. The South African Bill of Rights, for instance, guarantees socio-economic rights such as the right to education. Similarly, Malawi and Namibia have adopted new constitutional pacts which show a commitment to the recognition and protection of human rights as enunciated in the African Charter and other international human rights instruments. These new bills of human rights differ from those of the immediate post colonial era in that, not only are they justiciable, but they also reflect changed political realities and on- going democratic struggles. As Maluwa observed, "The common theme running through all these changes has been the attempt to institute political pluralism and democratic rule in place of single-party dictatorships and autocratic oligarchies that had become the political order of the day in all but a handful of African states, and to build a political culture founded on a conception of human rights now taken for granted in the more established democracies."

Also, some African countries have incorporated the Charter into domestic law, thus facilitating its enforcement by domestic courts. In Nigeria for instance, the Charter was incorporated through the African Charter (Ratification and Enforcement) Act cap 10, Laws of the Federation of Nigeria, 1990. Consequently, Nigerian lawyers frequently cite the provisions of the Charter to support human rights actions in domestic courts. In the case of Abacha v. Fawehinmi, the Nigerian Supreme Court upheld a decision of the Court of Appeals on the superiority of the African Charter to domestic legislation. The Court, however, rejected an argument that the Charter was superior to the national constitution of the country.

The African Charter has also had some positive political impact in African countries. Nigeria has a good record of compliance with decisions of the African Commission. The few cases of non-compliance are exceptional. In fact, African countries often respond with less enthusiasm toward United Nations human rights mechanisms. They regard the African human rights system as "our own" while often viewing the United Nations system as foreign. It is believed that the Nigerian military government might have executed some Zango Kataf activists who were sentenced to death by a tribunal, but for the intervention of the African Commission. The Chairman of the Commission had written to the Nigerian Government urging it to postpone the planned execution of the activists pending the determination of their petition by the Commission. The government seems to have complied.

Again in Katangese Peoples' Congress v. Zaire, although the Commission did not accept the claim of the people of Katanga to 'self- determination in a manner that would have recognized their claim to secede from Zaire, the government was held to be under an obligation to recognize the peoples' right to their indigenous culture and language.

Perhaps the most profound impact of the African human rights system on domestic law has been in the area of civil society empowerment. Before the establishment of the African Commission, African human rights NGOs used to work only with NGOs based in Europe and America. There was little interaction among African NGOs. However, the Charter, in its establishment of the Commission, has created a platform for NGOs to meet twice every year to exchange ideas. African NGOs with observer status at the African Commission are allowed to make submissions at the sessions of the Commission. During the military era, Nigerian NGOs learned a lot from South African NGOs through this platform. The African NGOs now have what is called the Civil Society Forum at the Summit of the Heads of State of OAU (now African Union). It is the work of the NGOs (African and non-African) that gave impetus to the emergence of the additional protocols of the African Charter including that of the African Court. The NGOs forum constituted a powerful lobbying group in convincing African leaders about the need, not only for an African Court but also for an African Union. The following section considers these new features of the African human rights system.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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