Mirna E. Adjami

abstracted from: Mirna E. Adjami, African Courts, International Law, and Comparative Case Law: Chimera or Emerging Human Rights Jurisprudence?, 24 Michigan Journal of International Law 103-167, 103-108 (Fall 2002) (324 Footnotes)

State collapse, humanitarian crisis, and war are the faces of Africa that the world sees today. Lost in the tide of dark images are incremental steps for the protection of human rights. In the most dysfunctional of African countries, the skeletons of State institutions still stand. Some judiciaries have even started to engage in a progressive and sophisticated discussion of international human rights norms.

Member States of the Organization of African Unity (OAU) formalized their rhetorical commitment to the promotion and protection of human rights with the adoption of the African Charter of Human and Peoples' Rights in 1981. Since the Charter's signing, critics have disparaged the African human rights system for its failure to establish a court that would safeguard and enforce the rights guaranteed in the Charter. In 1994, the OAU began the process of establishing an African Court of Human and Peoples' Rights. Given the lackluster performance of the African Charter's primary guardian institution, the African Commission, many commentators believed that the time had not yet come for the establishment of a court.

Misgivings aside, the OAU adopted the Draft Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights in June 1998. Since then, the Draft Protocol and the proposed African Court have been the focus of scrutiny by scholars of the African regional human rights system. The proposed African Court has also captured the attention of international law scholars analyzing the proliferation of international courts and the effect of this phenomenon on international law.

Though the potential creation of a supranational human rights court has brought international attention to the African human rights system, international law and human rights scholars rarely turn to African examples when studying the domesticapplication of international human rights norms. This Article seeks to fill that gap by analyzing cases from several Anglophone common law countries in sub-Saharan Africa that invoke international law and comparative case law as interpretive support in their national fundamental rights jurisprudence.

Part I of this Article develops the conceptual framework for the examination of these cases by outlining theories of national judicial enforcement of human rights in Africa. First, it explores the technicalities of the relationship between international law and municipal law and shows how surprising the use of international sources is given their nonbinding status in domestic legal systems. It then traces the trend toward human rights constitutionalism through the post-independence creation of justiciable bills of rights. This Part proceeds with an examination of the debate between universalism and particularism of human rights in the African context and concludes with an overview of the role and responsibility of African judiciaries in enforcing human rights.

It is in this context that Part II examines selected cases from Botswana, Namibia, Nigeria, South Africa, Tanzania, Zambia, and Zimbabwe that invoke international law and comparative case law. The cases discussed here were chosen because they highlight several distinct modes of interpretation. Part II first examines how African courts invoke international sources for support in adopting a broad policy of constitutional interpretation. It then explores how courts have relied on international sources in determining the substantive scope of fundamental rights, focusing on cases concerning corporal and capital punishment under constitutional provisions guaranteeing the freedom from "inhuman and degrading punishment." Part II concludes with a discussion of the tensions between international norms, the exercise of judicial license, and African traditions.

Researching African case law is a true challenge. Most African judiciaries function on the scarcest of financial resources. In these circumstances, compiling cases in law reports is the last priority. As such, most national decisions in African countries remain unpublished, and those that are printed in reporters are still difficult to access. Nevertheless some African States do publish quasi-regular law reports. Most of these regular reports are from Southern African countries or African Commonwealth countries. Given the irregularity of the publication of case law, any comprehensive search for African case law is unscientific and incomplete. Consequently, the cases examined in Part II were selected from a small subsection of national cases that were discovered that draw on international and comparative law in their fundamental rights jurisprudence.

This Article uses the shorthand "international sources" to refer to the full range of international authorities that these African courts reference in their decisions. These sources include international human rights instruments and decisions of international tribunals. Additionally, the courts rely on comparative jurisprudence, drawing authority from other common law countries, particularly from members of the Commonwealth.

By examining these judicial decisions this Article seeks to highlight the potential of the African State, through the judiciary, to play a positive role as an enforcer and protector of human rights at the national level. It takes this position not with the na�ve belief that the judicial protection of human rights can substitute for the grassroots development of a human rights culture or the consciousself-restraint of other branches of government in complying with human rights obligations, but rather with the view that the judiciaries can and do play a pivotal role in developing a normative climate in which such developments can occur.

This Article, therefore, does not address how the political climate of a country limits, even undermines, the role of judiciaries in African States. Most sobering is the reality that many of the countries whose jurisprudence is examined in this Article do not respect the rule of law. Their judiciaries are also not fully independent. Authoritarian governments have intervened to overturn progressive court decisions on human rights issues by fiat or have reigned in the judiciaries when the judges have been deemed to exercise too much independence.

The decisions examined in this Article illustrate how African courts have used international law and comparative case law as interpretive tools in their domestic rights jurisprudence. Even within the context of repressive regimes and dysfunctional States, and despite the challenges to the legitimacy of human rights in the African context, there exists the potential for the indigenous judicial acceptance of international human rights norms that can contribute to the expansion of a global human rights jurisprudence.

. Visiting Research Scholar, Ralph Bunche Institute for International Studies, The Graduate Center at The City University of New York. J.D., Harvard Law School, 2000, B.A., Brown University, 1996.

[1]. The African Charter on Human and Peoples' Rights, opened for signature June 21, 1981, OAU Doc. CAB/LEG/67/3/Rev.5 (1981), reprinted in 21 I.L.M. 59 (1982) [hereinafter African Charter].