African Human Rights Yearbook / Annuaire Africain des Droits de l’Homme
The three institutions making up the African regional human rights system, the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights, and the African Committee of Experts on the Rights and Welfare of the Child, decided to jointly publish the African Human Rights Yearbook, to spearhead studies on the promotion and protection of human rights, and to provide a forum for constructive engagement about the African human rights system with academics and other human rights commentators on the continent. The first volume, which was published at the end of 2017. This volume, appearing at the end of 2020, is the fourth volume Les trois institutions qui composent le système régional africain des droits de l’homme, la Cour africaine des droits de l’homme et des peuples, la Commission africaine des droits de l’homme et des peuples et le Comité africain d’experts sur les droits et le bien-être de l’enfant ont décidé de publier conjointement l’Annuaire africain des droits de l’homme pour encourager les études sur la promotion et la protection des droits de l’homme et offrir un forum d’interaction constructive sur le système avec les universitaires et observateurs du continent. Le premier numéro paru à la fin de l’année 2017. Le numéro, qui apparaît à la fin de l'année 2020, est le quatrième numéro. ISSN: 2523-1367 EISSN: 2663-323X
The South Africa High Court Baleni judgment: towards an indigenous right to consent?
In the Baleni judgment the High Court of South Africa declared that the Umgungundlovu community has a right to consent before the exploitation of mineral resources in their traditional lands. This decision represents one of the few cases where a domestic court refers to a right to consent of an indigenous community under both domestic and international law. The article aims to explore the compatibility of the Court’s findings with the current international law standard on permanent sovereignty over natural resources and on indigenous peoples’ right to free, prior and informed consent to explore whether it is possible to conceive an indigenous right to consent, as a veto power, before the exploitation of natural resources on their lands. In doing so, the case discussion focuses on the possible impact of such judgment on the jurisprudence of the African Court and Commission on Human and Peoples’ Rights. Furthermore, the article outlines how the findings of the Court may contribute to strengthening the concept of an indigenous right to free, prior and informed consent.
African Court on Human and Peoples’ Rights
African Commission on Human and Peoples’ Rights
Copyright (c) 2023 African Human Rights Yearbook
Commentary on the judgment of the African Court on Human and Peoples’ Rights in the case of Anudo Ochieng Anudo v United Republic of Tanzania
The African Court on Human and Peoples’ Rights (African Court) handed down its first judgment on the right not to be arbitrarily deprived of one’s nationality in relation to the right not to be arbitrarily expelled in the case of Anudo Ochieng Anudo v Tanzania. The Court was seized by Anudo Ochieng Anudo, a Tanzanian national. In its judgment, the African Court relied on Article 15(2) of the Universal Declaration of Human Rights to find against the respondent State. The position of the Court is contrary to a consistent position of the African Commission on Human and Peoples’ Rights (African Commission) in similar cases. This commentary therefore aims to highlight the particularity of this judgment in relation to the jurisprudence of the African Commission and European courts. It emphasises the need to finalise the adoption of the Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Right to Nationality and the Eradication of Statelessness in Africa for effective protection of this right in Africa
Cour africaine des droits de l’homme et des peuples
Commission africaine des droits de l’homme et des peuples
The judicial function of the African Court on Human and Peoples’ Rights in default judgments: the developments set forth in the Léon Mugesera case
This case discussion focuses on the judicial function of the African Court on Human and Peoples’ Rights (Court) in default judgments. The discussion brings to the foreground the changes introduced by the Court in its recently revised Rules of Procedure and how these changes are put in practice in its case law. The revised provision on default judgments includes the extended power of the Court to decide on its own motion on whether to issue a default judgment and the introduction of a legal innovation in international dispute settlement, namely, a remedy for the defaulting party to set aside a default judgment. The recent default judgment in Léon Mugesera v Rwanda serves as a focal point in the analysis since it is the first instance that the revised Rules of Procedure were put into practice and since the Mugesera case illustrates the difficulties encountered by the Court in cases of non-appearance of the respondent state. The Court’s Rules of Procedure and case law are also placed within the corpus of international (human rights) law and the jurisprudence of its two regional counterparts on matters pertaining to default judgments so as to shed light on different approaches. The analysis makes two main arguments. The first concerns the procedural requirements for rendering a judgment in default. Until the Mugesera decision, the Court was not consistent in meeting these requirements, and had been known to decide in default on its own motion without having a textual basis in the Protocol or the Rules of Procedure to do so. The recently revised Rule of Procedure grants the Court the power to decide on its own motion. Second, the analysis argues that the Mugesera decision cements an alarming trend in the case law, whereby in cases of nonappearance the Court does not satisfy itself that the applicant’s submissions are well-founded.
The withdrawal of state consent to the optional jurisdiction of the African Court on Human and Peoples’ Rights: a denial of citizens’ right of access to regional justice? A review of the case Glory Cyriaque Hossou and Another v Benin
This commentary reviews the judgment of the African Court on Human and Peoples’ Rights in Glory Cyriaque Hossou and Another v Benin, concerning the withdrawal of Benin’s declaration made under article 34(6) of the African Court’s Protocol. The commentary discusses the judgment in the light of the principle of acquired right, a fundamental right to approach the African regional court on human and peoples’ rights. In practical terms, it discusses the legal relevance of the state consent rule and its withdrawal under the Protocol. The exercise of the African Court’s power to enforce fundamental rights enshrined in the African Charter on Human and Peoples’ Rights and relevant legal instruments or international human rights instruments to which states are parties is subjected to their prior consent pursuant to article 34(6) of the African Court’s Protocol. While it is legally permissible for states to accept or not the Court’s jurisdiction, the withdrawal of state consent can be questioned due to its adverse effects on the acquired fundamental right to legal remedy recognised by the African Charter. It seems relevant to question the meaning and legal scope of the rule enshrined under article 34(6) of the Protocol. Can an alternative interpretation of the right of the state to withdraw its declaration 34(6) be envisaged, in the name of the effectiveness of continental protection of human rights in Africa?
Green crimes: the impact of genetically modified organisms on promoting food security in Kenya
Kenya’s food insecurity hinders progress towards sustainable development. While the Kenyan Constitution guarantees every person the right to adequate food of acceptable quality, it also prohibits environmental and health endangerment. Whether and how to invest in genetically modified organism (GMO) technology as an alternative food production method is important. In this context, scientists should not be denied the opportunity of harmonising the tension between environmental safety and food security while upholding sustainable development. Scientifically, GMO crops are sustainable, notwithstanding the African Union’s rigid social and political setting. However, each state’s role in providing sufficient resources and law enforcement personnel is crucial. A GMO regulatory system addresses environmental safety and human health, explicitly adopting the developmental risk notion. Kenya’s 2012 cabinet ban on GMO foods derived from the Séralini Report which erroneously claimed that GM maize causes cancer in rodents. The health ministry established a Task Force to review the country’s readiness regarding GMO safety and adoption. Despite having been completed in 2014, its Report remains secret. In 2015, the High Court dismissed as premature demands for public participation on whether to unban GMOs. In 2022, President Ruto lifted the ban. Arguably, while permitting GMO experimentation, it is prudent to prescribe criminal sanctions. Beyond anthropocentric notions, green criminology provides a framework to analyse both illegal and legal environmental harms, and for appraising Kenya’s evolving GMO policy. The Constitution provides a right to sustainable use and also establishes enforcement mechanisms to compel cessation and restoration. Yet without punitive consequences, GMO regulations may not deter offenders from environmental contamination.
The right to health in Nigeria and South Africa: the need for effective integration of food safety
Food safety is a public health issue. The World Health Organisation reports that almost 1 in 10 people in the world fall ill after consuming contaminated food and 420,000 die every year. In Africa, more than 91 million people fall ill and 137,000 die each year of foodborne diseases. Several legal instruments recognise the right to health in Nigeria and South Africa. In Nigeria, the right to health is non-justiciable under chapter 2 of the 1999 Constitution. The National Health Act is the main law that regulates, develops and manages the health system. In South Africa, the right to health is recognised as a fundamental right. While these steps are commendable, food safety is yet to be effectively incorporated in these instruments. Nigeria and South Africa are state parties to treaties such as the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples’ Rights. However, these treaties fail to accommodate food safety as one of their essential attributes. This article contends that foodborne diseases have a significant impact on the recognition and enforcement of the right to health. Relying primarily on analytical methods of research, the article assesses the efficacy of legal machinery in recognising food safety as a crucial component of the right to health in the jurisdictions under study. It is important for Nigeria and South Africa to achieve effective integration of food safety as an indispensable component of the right to health in Africa.
Poverty, policies, and politics: a rights-based approach to food insecurity in Africa
Food and nutrition insecurity remain serious African concerns, reflecting government failure to meet global and regional human rights obligations to assure food availability, accessibility, utilisation, stability, sustainability, and agency. According to recent data, more than one-third of people facing severe food insecurity around the world live in Africa. The numbers may continue to rise in the absence of deliberate and human rightscentred solutions. The second biennial review report of the African Union on the Malabo Declaration on Accelerated Agricultural Growth and Transformation for Shared Prosperity and Improved Livelihoods conceded that the continent is not on track to meet the targets set out in the Declaration to end food insecurity and improve nutrition. This article investigates and advocates for a human rights-based approach to food and nutrition security. It highlights the critical links between the six main elements of food security, namely, availability, access, utilisation, stability, agency, and sustainability, and the normative obligations of states on the right to food and its interdependence with other fundamental human rights. It critically analyses the available legal frameworks on addressing food insecurity and its challenges, and proposes a human rights-based approach.
Holding corporations liable for human rights abuses committed in Africa: the need for strengthening domestic remedies
It has been two decades since the African Commission on Human and Peoples’ Rights (Commission) rendered its landmark decision in SERAC and CESR v Nigeria. In this landmark judgment, and later in IHRDA and Others v DRC, the Commission explicitly affirmed states’ obligation to investigate, prosecute and redress corporate human right abuses as part of the obligation ‘to adopt legislative or other measures’ under article 1 of the African Charter on Human and Peoples Rights (African Charter). Similarly, states’ obligation to ensure a remedy for corporate human rights abuses is also one of the issues clarified under the ‘Third Pillar’ of the UN Guiding Principles on Business and Human Rights. However, as this obligation is not adequately translated into practice at the national level, corporate human rights abuses committed in Africa continue to be met with impunity and lack of access to effective remedy. Over the last several years, African victims who are denied justice in their domestic jurisdictions have increasingly been turning to home states of corporations to seek remedies. Victims’ access to home state remedies has, however, been significantly restricted in recent years due to various legal barriers, particularly jurisdictional challenges. The article therefore aims to highlight the increasing restriction on African victims’ access to home state remedies and show the need for strengthening domestic remedies in Africa
UN Guiding Principles on Business and Human Rights
Reforms of the African Union’s judicial system: legal and institutional challenges facing the African Court on Human and Peoples’ Rights
This paper explores and demonstrates why the different systems and models of justice which the Organisation of African Unity (OAU) and the African Union (AU) respectively established are unstable. The OAU Charter did not create a court of justice, but a Mediation, Conciliation and Arbitration Commission to arbitrate disputes. Similarly, the African Charter on Human and Peoples’ Rights did not establish a court of law, but the African Commission on Human and Peoples’ Rights, whose recommendations are not binding. To address issues arising from the nonbinding nature of the Commission recommendations, the OAU adopted the Protocol Establishing the African Court on Human and Peoples’ Rights in Ouagadougou in 1998, whose decisions are binding. However, in the meantime, the OAU was replaced by the AU before the Court effective establishment. For its part, the Constitutive Act of the African Union (AU), which replaced the OAU Charter in 2000, provided for its own Court of Justice, which was established three years later by a protocol adopted in Maputo in 2003. Thus, two separate and specialised courts were to exist in parallel at the continental level. For reasons of rationalisation, the two protocols establishing these two courts were merged and replaced by the 2008 Sharm El-Sheikh Protocol, which created the African Court of Justice and Human Rights. The internal structure and competences of this future and unique Court were finally revised and amended by the Protocol adopted in Malabo in 2014: a criminal section, competent for 14 categories of crimes, was inserted within the projected Court. The AU’s judicial system is, to date, unstable and uncertain, especially as the 2008 and less realistic 2014 reforms raise more questions than they resolve. The doctrinal, analytical, and historical methods of legal research have shown that the latter two reforming Protocols – that of 2008 and 2014 respectively – may not enter into force because of the normative and procedural implications and consequences for both the status, competences and composition of the original Court and the judicial protection of human rights across the African continent.
Université Général Lansana Conté de Sonfonia-Conakry
Cour africaine de justice et des droits de l’homme
protection juridique des droits de l’homme, protection juridictionnelle des droits de l’homme
The right to water: a right in the shadow of other human rights in the African human rights system?
his article questions the existence of a human right to water in the African human rights system. The doctrinal analysis reveals that at the regional level, treaties only indirectly contribute to the recognition of a human right to water, whereas the latter is clearly enshrined in certain texts in force at the sub-regional level. These provide a legal basis distinct from that of other human rights. The case-law analysis underscores the missed opportunities for the regional judge to enshrine this human right to guarantee its real protection by the states. Nonetheless, the article highlights the contribution of the African Commission on Human and Peoples’ Rights’ soft law to the explicit consecration of a human right to water and the various state obligations that ensue to ensure its effectiveness. This constitutes a significant progress in the protection of human rights. The author proposes that monitoring bodies can refer to this soft law to enshrine a human right to water in the subsequent development of their jurisprudence as it can serve as a compass to stimulate and guide domestic legal reforms aimed at a genuine guarantee of this right.
observation générale 15 sur le droit de l’eau, lignes directrices de Nairobi
lignes directrices sur le droit de l’eau en Afrique
Résolution sur l’obligation de garantir le droit à l’eau
Towards a more effective and coordinated response by the African Union on children’s privacy online in Africa
The development and expansion of digital technologies in Africa have brought invaluable opportunities for the realisation of children’s rights. However, the significant growth of internet connectivity and ICT access has also raised concerns about children’s online safety and privacy. With growing concerns on children’s privacy and personal data protection, there is a need for robust harmonised standards and regulatory frameworks to address all aspects of children’s privacy online. Through desk review, this article assesses the extent to which children’s right to privacy online and personal data is protected and integrated in the standards and regulatory frameworks of the African Union. An assessment of the applicable instruments and jurisprudence of the key human rights bodies indicates that children’s privacy online and data protection are not adequately addressed as there is limited or no focus on the protection of children’s personal data online. In most instruments related to cybersecurity, there are no explicit provisions relating to the protection of children’s personal data and children are only mentioned in provisions on child pornography. The article argues that children deserve specific protection as a vulnerable group hence the urgent need to explicitly protect children’s personal data and privacy in the human rights instruments adopted at the African Union level as it is the approach in the European Union’s General Data Protection. The article further argues that there is a need to adopt more effective measures by the African Union and its organs to ensure that children’s privacy in all its aspects is protected in the digital sphere.
What counts as a ‘reasonable period’? an analytical survey of the jurisprudence of the African Court on Human and Peoples’ Rights on reasonable time for filing applications
Applications filed before the African Court on Human and Peoples’ Rights (Court) must fulfil all the admissibility requirements listed in article 56 of the African Charter on Human and Peoples’ Rights (Charter). The requirements in article 56 are all replicated in Rule 50(2) of the Rules of Court (Rules). One of these requirements is that applications must be filed within a reasonable period from the time local remedies have been exhausted or from the date set by the Court. The Court’s jurisprudence confirms that it takes a case-by-case approach in assessing the admissibility of cases while paying attention to the individual facts of each case. Notably, the Court, similar to the African Commission on Human and Peoples’ Rights (Commission), has refused to set a fixed time limit that can universally be accepted as reasonable for purposes of article 56(6). This article conducts an analytical survey of the Court’s article 56(6) jurisprudence. The analysis reveals that while the Court has, at least conceptually, been clear about its general approach for applying article 56(6), its decisions demonstrate an ambivalence about the factors that are considered for determining the reasonableness of time as well as the baseline for computing time.
article 56(6), African Charter on Human and Peoples’ Rights
Les vaccinations obligatoires et les droits de l’homme en Afrique: l’urgence d’un encadrement juridique efficace au sein de l’Union africaine
Depuis plusieurs décennies, la vaccination est le mécanisme de prévention le plus répandu des maladies infectieuses. Les vaccins sont des médicaments destinés à prévenir de nombreux risques, afin de permettre à la personne humaine de jouir d’un meilleur état de santé. Dans cette logique de promotion de la santé individuelle et surtout collective, des vaccins sont imposés aux nourrissons, ou aux personnes de tout âge. Dans la quasitotalité des pays de l’Union africaine, on retrouve des vaccins obligatoires. Pourtant, en vue de la protection du droit à la vie, du droit à l’intégrité physique consacrés par l’article 4 de la Charte africaine des droits de l’homme et des peuples et la Charte africaine des droits et du bien-être de l’enfant, le corps humain est inviolable. Toute personne, tout patient, devrait avoir le droit de consentir de manière éclairée, personnellement ou par son représentant, à un médicament, à une thérapie, qu’elle soit préventive ou curative. Dès lors, ces vaccinations obligatoires sont-elles conformes au système de protection des droits humains de l’Union africaine? Avec la persistance de la COVID-19 devenue pandémie mondiale et les nombreux débats controversés au sujet des vaccins proposés contre cette maladie, la question des vaccins obligatoires mérite d’être profondément prise en compte par l’Union africaine, pour une protection optimale des droits humains en Afrique. Si les vaccinations obligatoires constituent des atteintes légitimes mais implicites dans le système de protection des droits humains de l’Union africaine, il est urgent de procéder à un meilleur encadrement juridique de cette pratique, pour une protection plus efficace des droits humains en Afrique. Cette étude s’est appuyée sur la dogmatique juridique, c’est-à-dire l’analyse minutieuse des normes juridiques de l’Union africaine et la casuistique qui permet d’appréhender la mise en œuvre de ces normes pour aboutir à cette conclusion.
The prohibition and punishment of torture in the African human rights system: utopia or bad faith of states?
hough the African human rights protection system has enshrined as absolute the right not to be subjected to acts of torture or cruel, inhuman or degrading punishment or treatment, these practices, which disregard the inherent dignity of the human person, continue to thrive on the continent. This state of affairs begs the question whether the prohibition and repression of torture are pure utopia or evidence of the bad faith of states. This study aims to answer this question. It sets out, first, the relevant legal instruments in this area, as well as the mandate of the Committee for the Prevention of Torture in Africa, responsible for promoting the implementation of the Robben Island Guidelines. It then provides an overview of the situation by studying the ratifications and complaints submitted to African supranational bodies. It also presents national shortcomings both in the adoption of legislation and in the creation of specific bodies, as well as in complacency at the repression stage. It ends with theproposal of recommendations to improve the effectiveness of the fight against torture.
Tribunal Africano dos Direitos Humanos e dos Povos
Comissão Africana dos Direitos Humanos e dos Povos
The concept of legal interest in contentious proceedings before the African Court on Human and Peoples’ Rights
In contentious matters, some explicit provisions of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights and the Rules of Procedure of the Court define the procedural preconditions for submitting an application before the Court. These provisions also set out the essential criteria for intervention in a pending case. In the implementation of the right to submit an application and intervention, the concept of legal interest comes into play. With the aim of strengthening the position of the drafters of the African Court’s Protocol and the Rules of the Court, and to compensate for the imperfections of the observations of certain states, this contribution discusses the concept of legal interest. It argues that legal interest is immaterial to the submission of application before the Court. However, during proceedings, the participation certain parties is subjected to their demonstrating they have legal interest. The rigid application of the concept of legal interest may be a hindrance nonetheless to the participation of a category of parties. Although the Court’s jurisprudence demonstrates the Court’s willingness to ensure broader participation in proceedings, the current state of scholarship does not sufficiently highlight this particularity of the African Court on Human and Peoples’ Rights system.
Protocole à la Charte africaine des droits de l’homme et des peuples portant création d’une Cour africaine des droits de l’homme et des peuples
Provisional measures in international human rights law: the practice of the African Court on Human and Peoples’ Rights
Under exceptional circumstances, international (human rights) courts issue orders on provisional measures preventing a party or parties before them from taking some actions pending the final determination of a case. The main purpose of such orders is to avoid a situation where the final disposition of a matter is pre-emptively rendered fully or partly meaningless by the conduct of a party. Article 27 of the Protocol Establishing the African Court on Human and Peoples’ Rights also envisages the possibility where ‘in cases of extreme gravity and urgency’, the Court may adopt provisional measures to ‘avoid irreparable harm to persons’. The African Court on Human and Peoples’ Rights (Court), relying on this provision, has thus far issued about 50 orders of provisional measures, all of which were against respondent states. This article interrogates the Court’s practice in this regard, with the view to fleshing out its jurisprudential inconsistencies and proposing recommendations to rectify the occasional misapplication of the procedure. Close scrutiny of the Court’s jurisprudence reveals not only glaring discrepancies in approach but also, at times, unnecessary recourse to these measures even when situations do not necessarily warrant their adoption. As evidenced by the backlash from some states, which have openly expressed their refusal to comply with the Court’s orders, the unwarranted use of provisional measures is likely to render the procedure ineffective and may also negatively affect the legitimacy of the Court in the eyes of its creators, the states. Therefore, the Court should fully and strictly adhere to the legal and factual conditions required to adopt provisional measures and always be alive to the intended purpose and nature of provisional measures. The Court particularly needs to adopt a balanced approach without being too liberal or too strict, as this would be overstepping its power or abdicating its responsibility to protect human rights.
Monitoring second-order compliance in the African human rights system
This article examines the mechanisms and instruments employed by the three main regional African human rights bodies – the African Commission and African Court on Human and Peoples’ Rights and the African Children’s Rights Committee – to monitor compliance with their decisions and judgments. Based on the assumption that second-order compliance monitoring contributes to greater effectiveness of human rights institutions and increased compliance with their pronouncements, we discuss the monitoring tools used by the institutions themselves as well as the roles of political monitoring and monitoring by civil society. Based on a stock-taking exercise we find that all three African human rights bodies still have much room for improving both the quantity and the quality of their monitoring instruments and processes. Acknowledging that the three bodies may to some extent be legally and politically constrained with respect to the use of some of these, and recognising that the AU’s political organs mostly abstain from exercising the second-order compliance monitoring functions assigned to them, the article argues that civil society plays a critical role in contributing to such monitoring, a role that should be expanded upon and researched further.
African Human Rights Yearbook (AHRY) Vol 6
Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria: two decades on – questioning the continued implementation gap
Nearly two decades after the landmark decision in Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria, in which the African Commission on Human and Peoples’ Rights found that Nigeria had breached its obligations to protect, promote, and fulfil the rights of the Ogoni people in the country’s Niger Delta region, it is relevant to enquire how the decision has been implemented and whether it has significantly improved the situation of the Ogoni people. After the announcement of the Commission’s decision and the return to democratic rule in Nigeria, the general expectation was that Nigeria would without further delay implement the Commission’s recommendations. However, 20 years after the decision the Ogoni people are still demanding for their basic rights to be respected. This article, which mainly looks at the Commission’s decision from the perspective of the victims and through a socio-legal perspective, exposes this implementation gap. By doing so, it also points to the ineffectiveness of the monitoring mechanism of compliance with the Commission’s recommendations.
The requirement of exhaustion of domestic remedies in the admissibility of individual applications before the African Court on Human and Peoples’ Rights in the light of the Diakité v Mali case
Many of the petitions that the African Court on Human and Peoples’ Rights receives from individuals are subjected to inadmissibility objections raised by the respondent state. Such objections are most frequently raised in respect of the exhaustion of domestic remedies rule. In the Diakité case, the Court was called uponto rule on the petition of a Malian couple who, after being the victim of burglary, had filed a complaint with the Public Prosecutor’s Office. Disappointed by the slow progress in the case, the victims applied to the African Court. Can it be said that before the exercise of this right to individual petition before the African Court, the applicants had exhausted domestic remedies? The Court declared the application inadmissible for non-exhaustion of domestic remedies. In this judgment, the African Court protects an important procedural guarantee provided for under the African Charter. This judgment attests to the implacability of the rule of exhaustion of domestic remedies even if the Court is more inclined to analyse it in favour of individuals’ access to international justice.
requCour africaine des droits de l’homme et des peuples
A retrospective evaluation of the determination of reparations for nonpecuniary loss: a comment on Lucien Ikili Rashidi v Tanzania
The African Court on Human and Peoples’ Rights is a distinct body that protects human rights and develops jurisprudence in international and regional law. It is on this basis that it often awards compensation for human rights violations. However, while the Court gives reasons for compensation for pecuniary loss, it does not do so for nonpecuniary loss. With the aid of a conceptual approach, the contribution evaluates the argument that the Court’s failure to give reasons for compensation for nonpecuniary loss indicates a lack of clarity. With the aid of Lucien Ikili Rashidi v Tanzania (2015), Mtikila v Tanzania (2011), Norbert Zongo v Burkina Faso (2015), Lohe Issa Konate v Burkina Faso (2016) and Armand Guehi v Tanzania (2015) this contribution evaluates the Court’s approach to the grant of compensation for nonpecuniary loss. The Court’s failure to give reasons in instances of nonpecuniary loss affects the application of the rule of law in the adjudication of cases. This contribution argues that the Court’s jurisprudence presents an inconsistent approach to this problem. To substantiate this argument, this case discussion gives the facts and holding in Lucien Ikili Rashidi and identifies the lack of clarity by the African Court in dealing with non-pecuniary loss. This is followed with a close evaluation of the four earlier cases of Mtikila, Zongo, Konate and Guehi. A two-stage approach in dealing with compensation for the non-monetary loss is proposed. First, a finding of the existence of a human rights violation should be presumed sufficient to warrant the award of compensation for nonpecuniary loss. Second, the Court should then evaluate the amounts claimed against the principles of equity and the circumstances of the case.
Hanging and the mandatory death penalty in Africa: the significance of Rajabu v Tanzania
In November 2019, the African Court on Human and Peoples’ Rights in Rajabu v Tanzania issued its first major decision related to the substance of the death penalty. The Court found that Tanzania’s mandatory death penalty violated article 4 of the African Charter on Human and Peoples’ Rights (the right to life), because it constituted an ‘arbitrary’ deprivation of life. This decision accords with case law from other international treaty bodies and judgments of domestic courts. In addition, the Court found that hanging as a method of execution was ‘inherently degrading,’ a notable finding because most retentionist African countries still use hanging. By assessing the mandatory death penalty under article 4 instead of article 7 (right to a fair trial), the Court’s holding has limited applicability to other mandatory sentences, but the author contends that the Court should extend this precedent in the future to mandatory life imprisonment. The most important question that remains open is whether article 4 requires an individualised sentencing hearing in every case, including where persons with mandatory death sentences have already had their sentences commuted to imprisonment terms by the president without an opportunity to present mitigating evidence. Rajabu significantly contributes to the erosion of the death penalty in Africa and is an incremental precursor to total abolition under article 4 of the Charter.
Decriminalising vagrancy offences in Africa beyond the African Court’s Advisory Opinion: quo vadis?
The African Court on Human and Peoples’ Rights (African Court) advisory opinion in Pan African Lawyers Union on the compatibility of vagrancy laws with the African Charter on Human and Peoples’ Rights and other human rights instruments in Africa (PALU opinion) 1/2018 recommends that states amend or repeal vagrancy offences that criminalise the life-sustaining activities of many persons targeted by these laws. The Court’s main opinion is that states’ national laws and by-laws containing vagrancy offences are vague, overly broad and ambiguous, conferring broad discretion on the police for their enforcement and targets people in terms of their status, not their conduct. These laws violate articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter on Human and Peoples’ Rights; articles 3 and 17 of the African Charter on the Rights and Welfare of the Child; and article 24 of the Protocol to the African Charter on the Rights of Women in Africa. The main opinion insufficiently addresses the colonial root of vagrancy. A separate concurring opinion elaborates on the margin of appreciation and good faith principle that allow states to formulate contextspecific answers to amend and repeal vagrancy offences. This article identifies the impact of the COVID-19 pandemic on petty offences enforcement and draws lessons from litigation such as Gwanda v The State and interventions from national human rights institutions such as the South African Human Rights Commission; as well as guidance from the African Commission on Human and Peoples’ Rights Principles on Decriminalisation of Petty Offences in Africa (2017). It is argued that specific institutional and non-material interventions are needed to bring the systemic change required, in tandem with the banning of vagrancy offences, for cities that promote inclusion and sustainable development for all.
African Commission on Human and Peoples’ Rights Principles on Decriminalisation of Petty Offences in Africa
The legal protection of African cultural interests in international investment law
This contribution looks at the interactions between cultural rights and investment law and investigates the protection afforded to African cultural considerations in international investment law. If it is generally accepted that culture plays a central role in the continent’s quest for development and is an identifying factor for African peoples, how does international investment law protect African cultural considerations, knowing that the protection granted to investments may have an impact on certain cultural aspects of the countries in which they are being executed? Although cultural considerations have gradually made their way into the normative landscape of investment law, this article argues that taking these considerations into account remains, in many respects, insufficient in investment litigation. The article goes further to discuss certain reforms to better protect cultural considerations and thus allow the cultural lever to fully play its role in achieving the Africa we want.
The repatriation of African heritage: shutting the door on the imperialist narrative
This article is written in recognition of the repatriation movement, which is going through a renaissance in relation to the cultural heritage of African peoples. The collecting of African cultural heritage without free, prior and informed consent was a feature of colonialism. This article highlights the vulnerability of past and present African heritage in the light of the ‘imperialist narrative’. The imperialistic narrative accompanied the act of colonialism in Africa and enabled the taking of African heritage to public and private collections in Europe and America where many remain. Much of the heritage was displayed as an African ‘curiosity box’ which helped to support the now discredited idea of a hierarchy of peoples. This article argues that until there is a steady stream of African heritage returning home to Africa the narrative will continue to impact in situ African heritage including natural resources. Until museums repatriate African heritage unreservedly, the ‘imperialist narrative’ will exclude the corollary narrative of African Renaissance. The article examines potential restitution/repatriation mechanisms for African peoples and states for the return of their cultural heritage, drawing on the UNESCO conventions, the African Union Charter for African Cultural Renaissance, the Sarr and Savoy Report, ‘Restitution of African Cultural Heritage. Toward a New Relational Ethics’, the Report of the Expert Mechanism on the Rights of Indigenous Peoples Repatriation of ceremonial objects, human remains, and intangible resources under the United Nations Declaration on the Rights of Indigenous Peoples’ and the ECOWAS 2019/2023 Action Plan on the return of cultural properties to their countries of origin.
Resolution of the African Commission on Human and Peoples’ Rights on the Protection of Sacred Natural Sites and Territories: a critical overview
Sacred natural sites and territories are naturally occurring areas of land or water that are held to have spiritual significance by certain communities. They form part of a broader set of cultural values or traditional ways of life for given societies or communities. With the ever-mounting pressure for economic development, industrial activities, infrastructure development and demographic changes, sacred places are on the brink of permanent destruction. Yet these are focal points for cultural identity and diversity as well as strong biodiversity conservation. Africa as a region, through the African Commission on Human and Peoples’ Rights, adopted Resolution 372 of 2017 to preserve and protect Sacred Natural Sites and territories (SNST). The Resolution provides for protection to be achieved through entrenching customary governance systems into laws to protect SNST. This article analyses the resolution and how African countries can fit such customary governance systems into current legal regimes that are remnants of a colonial epoch. The article relies on case studies of how SNST have been recognised in certain African jurisdictions such as Benin and Ethiopia. It also relies on case studies of countries such as Uganda and Kenya where the author participated in promulgation of laws to protect these sites.It is the author’s argument that the Resolution is a means of achieving African cultural renaissance by advocating for recognition of African cultural rights and the revival of culture-based conservation mechanisms
rights of nature and cultural renaissance
Effectiveness of cultural rights and the return of African cultural property acquired during the colonial era: bridging the gaps between texts and context
This article draws on the annual theme of the African Union – ‘Arts, Culture and Heritage: Levers for Building the Africa We Want’ – to address the question related to the return or restitution of African cultural property irregularly acquired during the colonial and slavery regimes. It departs from the assumption that the African human rights system has a consistent normative and jurisprudential fabric on cultural rights. However, its main instruments ignore the issue of the return of cultural property. This question finds a favourable response in a mixture of disparate texts – which regulate the cultural sector in general – whose institutional emanation is as multiple as it is diversified (African Union, UNESCO and United Nations General Assembly). The analysis of these texts allows us to establish a causal link between the return of African cultural goods and the effectiveness of cultural rights. This article puts forward the hypothesis according to which the return of these properties would not only be a mode of reparation for colonial crimes but above all a contribution to the effectiveness of cultural rights. Speaking of the obstacles that undermine the concretisation of the repatriation of the illegally acquired property, this article criticises the development of a certain artistic and cultural nationalism – consecutive to the fragmentary character of the state policies in the matter – generating innumerable impasses. As a palliative, the article advocates for the harmonisation of cultural policies at the regional level.
effectivité des droits, système africain
reconstitution du patrimoine culturel africain
Addressing statelessness in Kenya through a confluence of litigation, transitional justice, and community activism: reflecting on the cases of the Nubian, Makonde and Shona communities
This article outlines the challenge of statelessness in Kenya and proceeds to focus on two seminal cases filed by the Nubian community against the Kenyan state: one before the African Commission on Human and Peoples’ Rights and the other at the African Committee of Experts on the Rights and Welfare of the Child. Attention then turns to Kenya’s transitional justice agenda and its interaction with the plight of stateless persons in Kenya. Through the experiences of the Nubian, Makonde and Shona communities, the article also explores the role of community-led activism in furthering the cause of ending statelessness in Kenya. It concludes with key lessons to be learned from utilising litigation, transitional justice and community-led activism as part of the struggle for the rights of stateless persons in Kenya. It relies on desk-review and research of the Nubian cases, Kenya’s truth commission report and other official inquires, civil society reports, the 2010 Constitution and related laws.
Non-governmental organisations in the African human rights system: an attempt to systematise the role of NGOs in regional human rights litigation in Africa
Non-governmental organisations are among the most notable actors in the African Human Rights landscape. They were already active at the genesis of the system where they stood out through their advocacy for the adoption of the founding instruments: the African Charter on Human and Peoples' Rights and its Protocols. Their participation in the various mechanisms for the implementation of the rights enshrined in the Charter is also well known. They are involved in both administrative and quasi-judicial and court proceedings. They are also active in litigation and advisory proceedings. This strong presence of NGOs in the African human rights system raises questions about their contribution to the protection of Human Rights in Africa. The purpose of this study is to highlight the contribution of NGOs by systematising their role in the cases brought before the three supervisory bodies. This role is twofold. It consists of a right to report human rights violations to the monitoring bodies and a right to participate in the proceedings before such bodies.
Comité africain d’experts sur les droits et le bien-être de l’enfant