Communications before the African Commission on Human and Peoples' Rights 1988-2002

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How international human rights law influences domestic law in Africa

International law plays an important role in framing the content of national law. This is evident with regard to norms of environmental law, crime prevention and human rights, to name just a few areas where norms adopted by global and regional organisations influence, and to a certain extent harmonise, national legal and policy frameworks. The focus of this article is on how international human rights law influences the content of national law whether, for example, through direct application of international human rights law by national courts or through inspiring new national legislation based on international instruments. It also considers the impact of "international expert" made law, such as, the decisions of regional and UN quasi-judicial bodies and courts. The article provides an overview of these issues in relation to Africa highlighting pertinent examples from national case law and legislation illustrating particular points.http://www.ldd.org.za/am201

The role of the African peer review mechanism in inducing compliance with human rights

The African Peer Review Mechanism (APRM) was developed under the New Partnership for Africa’s Development (NEPAD), the development framework of the African Union (AU) which replaced the Organization of African Unity (OAU) in 2002. Through the APRM, the AU has established a system for assessment of governance in participating countries and for the development of programmes of action to address identified shortcomings. The APRM is a voluntary, ‘soft’ mechanism of supervision which combines self-assessment with regional monitoring. The APRM takes a holistic approach to governance with a mandate covering democracy and political governance, economic governance, corporate governance and socio-economic development. This study considers the role that the APRM plays in the realisation of human rights. It examines the manner in which human rights are reflected in the APRM framework documents as well as the manner in which rights-based principles such as participation, accountability and transparency are reflected in the process. The strengths and weaknesses of various methods of international monitoring to ensure compliance with human rights are examined. The APRM country review reports and implementation reports of Ghana, Rwanda and Kenya are studied in conjunction with reports from domestic and international human rights monitoring bodies and national development plans. The aim of the study is to ascertain whether the APRM adds value to mechanisms established with the purport of assisting in the realisation of human rights. This study illustrates that the APRM plays a complementary role in human rights monitoring. It is clear, however, that it is only able to play a meaningful role if the state under review is motivated to undertake reform. Human rights have a role to play with regard to the APRM process itself and in identifying and addressing governance shortcomings. The specific and time-bound commitments in the Programme of Action are unique to the APRM. If these commitments are developed through a rights-based approach and their implementation adequately monitored the APRM could play an important role in inducing compliance with human rights.Thesis (LLD)--University of Pretoria, 2010.Centre for Human RightsUnrestricte

Human rights developments in the African Union during 2014

The year 2014 saw the adoption by the AU Assembly of a protocol providing the African Court with jurisdiction over international crimes, and a revised protocol on the Pan-African Parliament providing it with power to adopt ‘model legislation’. With regard to implementation, the Ebola epidemic in West Africa affected the effective functioning of, in particular, the African Commission. However, despite this and other challenges, the African Commission adopted important normative instruments, such as a resolution on the basis of sexual orientation or gender identity, responded to violations through urgent appeals and press releases, and engaged with states through missions and the state reporting procedure. The Commission also adopted some interesting jurisprudence in the period under review. The African Children’s Rights Committee consolidated its position as the main regional body for the protection of children’s rights in Africa. The African Court received an increasing number of cases and handed down two judgments on merits and an advisory opinion.http://reference.sabinet.co.za/sa_epublication/ju_ahrljhb201

Criminalising homelessness and survival strategies through municipal by-laws : colonial legacy and constitutionality

The by-laws of South African municipalities are full of provisions criminalising the poor. For example, begging and sleeping in the open is prohibited in many cities. Hawking goods or providing services is restricted. Many of these by-laws are rarely enforced while others are enforced to provide a sense of security among the privileged by removing undesirable persons from the streets. Action against the poor is often presented as being taken in their interest; the homeless should live in shelters, beggars should find employment. But it is through the action against them that many lose their livelihood and what little they own. Clearly more could be done to assist the vulnerable. However, criminalisation is not a solution. The paper traces the colonial history of vagrancy laws and their relationship to by-laws criminalising outside living and survival strategies of poor persons in the four largest metropolitan areas in South Africa: Johannesburg, Tshwane (Pretoria), eThekwini (Durban) and Cape Town. It shows how vagrancy legislation and related by-laws have been, and are being, used for social control of the poor, who have throughout history been viewed as a threat to the elite. The article further explores the constitutionality of anti-poor by-laws and the prospects of a constitutional challenge before the courts.http://www.tandfonline.com/loi/rjhr202020-10-03hj2019Centre for Human Right

Interpreting regional human rights treaties

Whether included in national bills of rights or regional or global human rights treaties, human rights are often vague. They require interpretation. The article illustrates how regional human rights tribunals have largely followed the rules for treaty interpretation set out in the Vienna Convention on the Law of Treaties. In the interpretation of rights and their limitations the European Court has traditionally put greater emphasis on regional consensus than the Inter-American Court and the African Commission which often look outside their continents to treaties and soft law of the UN and the jurisprudence of other regional tribunals. However, there is a trend towards universalism also in the jurisprudence of the European Court. The article illustrates that the reasoning of the regional tribunals is sometimes inadequate. The quality of the reasoning of the tribunals is important as it provides states and individuals with predictability so that action can be taken to avoid human rights violations. Good reasoning may also help to achieve compliance with the decisions and societal acceptance on controversial issues.Em geral, normas de direitos humanos são imprecisas, quer em cartas nacionais de direitos, quer em tratados regionais ou globais de direitos humanos. Essas normas, portanto, demandam interpretação. Este artigo revela como tribunais regionais de direitos humanos têm seguido amplamente as regras de interpretação de tratados estabelecidas pela Convenção de Viena sobre o Direito dos Tratados. Ao interpretar os direitos estabelecidos e as limitações a eles impostas, a Corte Europeia tradicionalmente reserva um espaço maior para o consenso regional do que a Corte Interamericana e a Comissão Africana, as quais frequentemente olham para além de seus continentes, para tratados e instrumentos quase legais [soft law] da ONU e para a jurisprudência de outras cortes regionais. Este artigo defende que a fundamentação utilizada por tribunais regionais para suas decisões é por vezes inadequada. A qualidade da fundamentação judicial nesses tribunais é importante, uma vez que garante previsibilidade para que Estados e indivíduos possam evitar futuras violações de direitos humanos. Uma boa fundamentação das decisões também contribui para sua melhor implementação, bem como para uma melhor aceitação pela sociedade de temas controversos.Incluidos en declaraciones nacionales de derechos o en tratados de derechos humanos regionales o mundiales, los derechos humanos a menudo carecen de precisión. Requieren de interpretación. El presente artículo ilustra la forma en que los tribunales regionales de derechos humanos han seguido en gran medida las reglas de interpretación de tratados establecidas en la Convención de Viena sobre el Derecho de los Tratados. En la interpretación de los derechos y sus limitaciones, tradicionalmente el Tribunal Europeo ha puesto mayor énfasis en el consenso regional que la Corte Interamericana y la Comisión Africana, que a menudo miran hacia fuera de sus continentes y recurren al derecho indicativo y tratados de Naciones Unidas y a la jurisprudencia de otros tribunales regionales. Sin embargo, se observa una tendencia hacia el universalismo también en la jurisprudencia del Tribunal Europeo. El presente artículo muestra que el razonamiento que presentan los tribunales regionales suele ser inadecuado. La calidad del razonamiento es importante ya que les brinda previsibilidad a los Estados e individuos de modo que se puedan tomar medidas para evitar las violaciones de los derechos humanos. Un buen razonamiento también puede ayudar a lograr un mayor cumplimiento de las decisiones y aceptación social respecto de cuestiones controvertidas.http://www.surjournal.org/eng/index.phpnf201

Accountability for the Gukurahundi atrocities in Zimbabwe thirty years on : prospects and challenges

It is estimated that between 10 000 and 20 000 civilians were killed by state and state sponsored agents between 1982 and 1988 in Zimbabwe. In addition to murder, there were widespread torture, rape and other sexual offences, genital mutilations, assault, and arson. These crimes have come to be known as the ‘Gukurahundi atrocities’. The fact that thirty years down the line the alleged main perpetrators of these crimes are still in charge of Zimbabwe’s political and security infrastructure, makes it difficult to find justice for survivors and the relatives of those who died. However, as illustrated in this article, most of the legal hurdles put in place by the regime to ensure impunity can be overcome.http://content.ajarchive.org/cdm4/index_00104051.php?CISOROOT=/00104051http://reference.sabinet.co.za/sa_epublication/cilsaam2016Centre for Human Right

Human rights developments in the African Union during 2012 and 2013

Positive developments in 2012 and 2013 included an increased impetus by the African Commission to reach decisions on petitions submitted to it and measures, such as hearings, to promote the implementation of its decisions. Concerns include the lack of publication of numerous decisions on individual cases and the lack of referral of cases from the Commission to the African Court in 2013. Despite the lack of referrals, the African Court now has a substantial docket and can focus on judicial work rather than the promotional work it has been focusing on over the last few years. The African Union political bodies continue to provide inadequate support, in particular to ensure sufficient staffing of the Commission and ensuring peer pressure in relation to the implementation of findings of the monitoring bodies. Projects such as expanding the mandate of the African Court to become a regional alternative to the International Criminal Court should be shelved until such time that a clear commitment to the existing institutions becomes evident.http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=3591am201

Human rights developments in the African Union during 2010 and 2011

This article considers human rights developments in the African Union (AU) during 2010 and 2011; two years that saw the work of the leading human rights institution on the African continent, the African Commission on Human and Peoples’ Rights (African Commission), stagnate, in particular in its work on individual communications. Despite increased resources, the Commission and its Secretariat have been unable to increase the visibility and impact of its work. This situation was exacerbated by the interference with the work of the Commission by the political organs of the AU, most prominently by refusing to publish the Activity Report of the Commission. This delayed the publication of the 29th Activity Report by a year. The African Court on Human and Peoples’ Rights is off to a slow start, spending much time and resources on trying to convince states to ratify the Protocol and make the declaration allowing individuals and NGOs to submit cases to the Court. The article also covers developments in the African Committee on the Rights and Welfare of the Child, which for the first time adopted a decision on a communication, the African Peer Review Mechanism and the AU policy organs.http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=3591nf201

Recent developments : human rights developments in the African Union (January 2017-September 2018)

The African Human Rights Decade (2017-2027) did not get off to a good start. The African Commission on Human and Peoples’ Rights has been facing a backlash from the African Union Executive Council since granting observer status to the Coalition for African Lesbians in 2015, which has escalated to a level where the independence of the Commission is at stake. While the number of cases decided by the Commission has dropped steadily, its other monitoring roles and its role as a norm setter remain important. Many cases are pending before the African Court on Human and Peoples’ Rights. However, almost all the contentious cases are against the few states that have made a declaration allowing direct access to the Court. The limited access to the Court is also as a result of its own jurisprudence. Thus, the opportunity of NGOs to submit requests for advisory opinions was severely limited by the Court in the SERAP case. The increased hostility of states towards the African human rights system demonstrates that many states are sensitive to human rights criticism. The future will tell whether states will take further steps to weaken the system, for example through their choice of appointments to the monitoring bodies, or disengagement, or whether they will finally take action to meet their rhetoric and strengthen the system they started to build more than three decades ago.http://www.ahrlj.up.ac.zaCentre for Human Right