PROTECTING HUMAN RIGHTS IN AFRICAN COUNTRIES: INTERNATIONAL LAW, DOMESTIC CONSTITUTIONAL INTERPRETATION, THE RESPONSIBILITY TO PROTECT, AND PRESIDENTIAL IMMUNITIES

In the aftermath of the Cold War, Africans redoubled their efforts to fight impunity and violations of human rights. This renewed effort, however, was part of the struggle that started during the colonial period by Africans to free themselves from European domination and exploitation. Unfortunately, most post-independence African States failed to fully transform the critical domains and provide themselves with institutional arrangements capable of adequately constraining their civil servants and political elites. As a consequence, these countries came to be pervaded by high levels of government impunity, particularly the violation of human rights. During the last several decades, however, grassroots efforts to fight human rights abuses, presidential abuse of power, and government impunity, have increased throughout most African countries. These domestic efforts, coupled with those of the international community, have made it much more difficult for Africa’s political elites, including presidents, to abuse their powers and engage in behaviors that violate the rights of their fellow citizens. Nevertheless, Africans still have a long way to go in order to eliminate government impunity and create an environment in which human rights are fully recognized and protected. Africans must put in place institutional and legal structures that effectively minimize the chances that government officials will engage in activities that violate human rights and threaten peace and security. In doing so, Africans can benefit significantly from international law, particularly international human rights law

International Law, Corruption and the Rights of Children in Africa

In adopting the African Charter on the Rights and Welfare of the Child (“African Child Charter”) on July 1, 1990, Africans, through the Organization of African Unity, officially recognized the need to guarantee the fundamental rights of all children. They also imposed obligations on all African States to recognize the rights, freedoms and duties enshrined in the African Child Charter and required States to take all necessary measures to give effect to these rights. To aid in the realization of these rights, each African State was expected to domesticate the African Child Charter and create rights that are justiciable in its domestic courts. In addition to the fact that domestication of the African Child Charter and other international human rights instruments in some African States has faced opposition from religious groups and traditionalists, corruption, lack of political will, and the failure of many countries to provide themselves with independent and fully functioning judiciaries, constrain the realization of children’s rights. The right to basic education is one of the most important of the collection of rights and freedoms guaranteed children by the African Child Charter. Without access to education, the African child will fail to develop the skills that he or she needs to evolve into a productive and contributing member of his or her community. Unfortunately, various forms of corruption continue to constrain the ability of many African children to realize the right to education guaranteed them by international and regional human rights instruments and by their national constitutions. The key to ensuring that the African child’s right to education is realized is institutional reforms to produce a governing process undergirded by the rule of law—that is one that can improve government efficiency and hence, minimize corruption, guarantee the independence of the judiciary, and generally enhance the protection of the rights of children, including especially their right to education

Women, International Human Rights Law, and the Right to Adequate Housing in Africa

In many African countries, the rights of women and girls to adequate housing are under threat and remain vulnerable to violation by state- and non-state actors. This is so even though these rights are guaranteed by international human rights instruments and national constitutions. Of particular note is the existence of customary laws that discriminate against women and frustrate their ability to realize the right to adequate housing. To enhance the ability of women to realize their right to adequate housing, each African State must domesticate the various international and regional human rights instruments that guarantee this right in order to create rights that are justiciable in domestic courts. In the meantime, however, progressive judiciaries are using their power to interpret the constitution to eliminate or modify customary and other laws that are not in conformity with the provisions of international human rights instruments and the country’s Bill of Rights. For example, in several African countries, courts have been adjudicating cases involving the right to adequate housing (e.g., discrimination against women by customary laws and forced evictions of women and other vulnerable individuals by state- and non-state actors). These courts have issued directives that can help the political branches develop and implement policies to ameliorate the deplorable living conditions that many women and their children face on a daily basis. Unfortunately, in many countries, the political branches have not been amenable to implementing court orders. However, recent socio-economic rights jurisprudence by the South African Constitutional Court offers a possible solution to this quagmire. That solution is found in the engagement approach, which emphasizes robust dialogue between the political branches, the affected individuals and groups, and civil society and its organizations. While such a holistic approach can proffer solutions that reflect the values and norms that are enforced by the socio-economic rights guaranteed by the constitution, it can also encourage democratic engagement and make the courts an important force in the protection of human rights, particularly those of women and girls. Of greater importance is that this approach places women at the center of public efforts to confront the problems that afflict them

International Human Rights Law and Violence Against Women & Girls in Africa

The UN has recognized that violence against women and girls is a manifestation of historically unequal power relations between men and women, which has led to significant levels of discrimination against women and girls in virtually all parts of the world and in all spheres of human endeavor. Since its founding in 1945, the UN has made a concerted effort to recognize and protect human rights, including those of women and girls. As part of that effort, the UN has established several mechanisms and instruments to help both the international community and Member States confront and deal with violence against women. In addition to international and regional human rights instruments (e.g., ICCPR, CEDAW, Maputo Protocol, and the Banjul Charter), the UN has also facilitated the establishment of the Special Rapporteur mechanism, which provides advice to the international community and Member States on violence against women and girls, its causes and consequences. However, the responsibility for making certain that the rights guaranteed to women and girls by international human rights instruments and national constitutions are recognized and protected, lies with each State Party. Today, rape has emerged as one of the most pervasive and egregious forms of violence against women and girls around the world. Examining case law from several countries provides insight into how the African continent is dealing with rape. An important lesson from this comparative case law is that African countries need to revisit their legal definition of rape, especially as it relates to gang-rape and sexual intercourse with children. These definitions must be designed to reflect provisions of international and regional human rights instruments and provide optimal protections for children in particular and women in general