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DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

African Court of Justice and Human Rights

SUBJECT

PUBLIC INTERNATIONAL LAW

NAME OF THE FACULTY

Dr. P.R. KHALIDHASS

HARSHIT MALVIYA

ROLL NO – 2016039

SEMESTER – V

SECTION- ‘A’

ACKNOWLEDGEMENT

I would sincerely like to put forward my heartfelt appreciation to our respected
faculty for PUBLIC INTERNATIONAL LAW, DR. P. KALIDHASS for giving me a golden
opportunity to take up this project regarding “African Court on Human and Peoples’
Rights”. I have tried my best to collect information about the project in various possible ways
to depict clear picture about the given project topic.

Such developments include the establishment of an African Court on Human and Peoples' 1(2007) 1 AHRLJ 191-205 2(2012) 1 AHRLJ 30-68 3(2006) 1 AHRLJ 146-165 .” The author further argues that the “AfricanCommission on Human and Peoples’ Rights has not lived up to its promisewith regard to active involvement in efforts to improve human rights educationacross the continent”. on the promotion and protection of human rights. while the Constitutive Act might be potentially important. This article contends that. Other conditioning factors. This article provides suggestions on how national strategies for humanrights education should be devised. “Utilising the promotional mandate of the African Commission” on Human and Peoples’ Rights to promote human rights education in Africa by SisayAlemahuYeshanew1 “Human rights education plays an important role in the promotion of humanrights. The article argues that the most important determining factor for the Union's success or failure is the human rights track record of member states and the perceived or real dependence of elites within these states on human rights violations. and continue to have.” 3. such as international legal obligations created by the Constitutive Act and other treaties. Among the reasons for optimism was the fact that the African Union's Constitutive Act was a lot more empathetic for the cause of human rights and democratic ideals. “Some reflections on recent and current trends in the promotion and protection of human rights in Africa: The pains and the gains by John C Mubangizi3” “This article analyses the impact that recent and current developments on the African continent have had. pressure from pan-African sentiment within the AU. replacing the Organisation of African Unity. Suggestions are given as to how the Commissioncould play a more active role with regard to human rights education. many were enthusiastic that it would champion the cause of human rights and democracy. Evaluating a decade of the African Union's protection of human rights and democracy: A post-Tahrir assessment by Abadir M Ibrahim2 “When the African Union was established.LITERATURE REVIEW 1. 2. one of the areas in which its predecessor had failed. and pressure from the AU's human rights organs play only a secondary and a comparatively minor role in affecting the AU's behaviour. it is but one among many conditioning factors for the Union's actions.

the prevalence of poverty.” RESEARCH QUESTIONS 1. Several challenges still inhibit the promotion and protection of human rights in Africa. how? 2. the formation of the African Union to replace the Organization of African Unity.” OBJECT AND SCOPE “The object of the study is to understand the position of the African courts of Human Rights in the protection of Human rights in the African State. The adherence to the judgments of the Court by the state parties in the past three decades will be focussed on. ignorance and diseases. Is the African Court of Human Rights is successful in theprotection of the human rights in the African states? If it so. How are the decisions of the regional courts taken as precedents in the international community? HYPOTHESIS . An understanding of recent and current trends in the promotion and protection of human rights in Africa has to take into account the historical and international context within which the African system operates. How are the decisions given by the African Court of Human Rights is adhered to? 3.Rights. The article concludes that there are still lots of pains to endure before the African system of human rights protection can favourably compare with its more advanced counterparts. democratic change in Africa and the advent of a new constitutionalism that embraces the concept of a bill of rights. What is the position of the African Court of Human Rights in the international community? 4. the predominance of political and social disharmony and the continued existence of unacceptable cultural and customary practices. including various ongoing regional and internal conflicts. The Jurisdiction of the court will be studied.

laws etc. the secondary sources include books. It includes primary and secondary sources. journals and online resources.” RESEARCH METHODOLOGY “The method of critical. The primary sources include Conventions.” .“The African Court of Human Rights is successful in reaching its objective of protection of the Human rights in the African States. analytical and comparative has been followed. articles.

INTRODUCTION AND DEFINITION OF HUMAN RIGHTS IN AFRICA 2. INTER-AMERICAN HUMAN RIGHTS SYSTEM 5. HISTORICAL EVOLUTION OF AcHPR 3. AFRICAN V.TABLE OF CONTENTS 1. CONCLUSION INTRODUCTION . JURISDICTION 4. EUROPEAN V.

human rights will consequently not be claimed to be inherent all told people in general.” Definition of Human Rights “It is necessary to understand the concept of Human rights because the study encompasses to understand the entire application of human rights law all over the world. while not grave injustice being suffered by individuals.“International human rights law is a branch of Public International law.” “This therefore implies that it's the responsibility of the globe leaders to guage whether or not or not these rights area unit relevant to their individuals. The definition of Human Rights is not similar to the generalized accepted definition. which requires comparison to improve the existing regional human rights protection enforcement in Africa. p. 5“In step with his observation. The African charter on human and peoples’ rights (1997) 5 Cassese A. This observation is at the best myopic. 52” . which universalized the concept of Human rights. The debate which persists is that which will prevail in case of anomaly between the cultural human rights and the universal one by the UN.” Cassese defines human rights as those who unit typically “based on Associate in Nursing expansive need to unify the globe by drawing up an inventory of tips for all governments…an try by the present to introduce a measure of reason into its history”. The debate persists in identifying the human rights. The definition has evolved over years remarking the need to address the above issues to resolve the persisting problem in the current scenario. Political and the rights of man. and at the worst undermines the overall understanding that human rights area unit inherent entitlements of all people in general that cannot be denied or granted. in Raphael D (ed).6“Brendalyn conjointly presents a definition of human rights that's utterly on the other finish of the spectrum from Cassese’s definition. however area unit given on the leaders through the ‘list of guidelines’. ‘Human rights: Real or supposed’. (1967). p. An ombudsman analysis is necessitated by the purpose of looking into the evolution of the regional human rights.4“There also exists various regional mechanism of Human Rights law enforcement mechanism. which is alternatively used as international Humanitarian Law usually. Human rights in a changing world (1990). 3 6 Cranston M.” This project will look into how the African Regional human rights have developed over years from the origin of term human rights in the regional parts. She suggests that human rights square measure those individual entitlements that each individual 4“Umozurike O. The International human rights law was recognised with the adoption of UN Charter.

or internationally. Even once it's declared within the preamble of the United Nations charter that each one states party to the current instrument shall affirm their religion in elementary human rights and also the dignity and value of the human person. but at this time there was a completely different flip of human rights standing in Africa.”Henkin presents the same definition suggesting that human rights can't be confiscate. race. With the challenges faced by the latest independent states in Africa. once the Second world war once the United Nations charter was adopted.” HISTORICAL EVOLUTION OF HUMAN RIGHTS Emergence of OAU “In the 1950s. waived or transferred. to the a lot of universal scope it presently has. p.” This has led to the organization of the African Unity for Organization (OAU) . will create differentiation due to various developmental changes in different areas of the differentiation. 29 “ 8“Ibid” 9“Henkin L. 9 independent 7“Brendalyn A. they have focused their efforts on eliminating colonialism from the continent and indulging in local cure for human rights abuses. regionally. Many countries in the colonial era seek to liberate their colonial masters and fight against the social systems and social structures in the city-controlled immigrants that are struggling at the same time with the new systems built and provided local values and regulations.Many of them. the United Nations ensured that the promotion and protection of human rights becomes the responsibility of all states within the international community. With this.possesses by virtue of being human. The age of rights (1990). it has stated."“In Africa. the international community was concerned for the protection and promotion of human rights. age. article 1(3) goes on to ingeminate their commitment to the promotion and protection of human rights and elementary freedoms. however square measure universal rights that each one individual have that square measure basic to the existence of mankind. 2” . human rights were reworked from problems with principally national concern. culture or religion 8.7“This definition has associate simple implication that suggests that each one individuals square measure equal. p. people.9” “Scope of Human Rights” “Human rights will be applied generally within the sense that it will be done nationwide. Democratization and the protection of human rights in Africa (1995). which their rights square measure equal similarly regardless of sex.

and the OAU has also played a significant role in the UN in ending colonialism in Africa.The newly formed states governments and the government are planning to set up a Council of Ministers for the organization in alternative matters. Following the conclusion of the meeting.states have been promoted in Alguyi to organize a conference in Monrovia in 1959. The introduction of the charter is now glazed in the following lines. however. Human rights in Africa: Problems and prospects (1980). p. due to their inefficiency in achieving a contract on the institution's nature. ‘The charter of the Organization of African Unity’. Also. with the intention of helping the temporary government in Algiers. p. 15 “ 14See the preamble of the OAU charter . the Charter was signed in seventeen African states. the role played by LAUASA manifesto in 1969 by the UN General Assembly and the heads of the East and Central African provinces is 10“Murray R. AJIL (1965) 59. So twenty-two states attending the meeting were discussing the charter's draft in Nigeria in 196212. attended the meeting in Twenty- seven independent states of Africa.Twenty-two companies. the charter's invention of the need for African nations to promote human rights protection in the continent. it has some purpose and ensures the specific standards of human rights and fundamental freedoms in the continent. 243-244” 12Ibid 13“Kannyo E. to the principles of which we reaffirm our adherence. and eliminating apartheid regime in South Africa. 2 “ 11“Elias T. At another meeting in December 1962. The connotations of the creation of its momentum in the Kanno OAU to end colonialism in Africa and reduce the social policy regime in South Africa 13. “Through the provisions of the Charter of the Organization.10Recognizing the requirement for a regional organization of African states. provide a solid foundation for peaceful and positive cooperation among states…14” “Despite the controversy to reassure its “commitment to the principles of human rights and its commitment to its protection. Hence the first aim of this organization is not human rights protection or promotion. (2004). the establishment of a peaceful revolution in the continent and the alternate conventions of the African States condemned them and encouraged those states that were still determined to be free and disruptive. pp. some independent states held another conference in Monrovia in 1961 calling for the adoption of a charter for the Organization of African union and Malagasy states11.” “Conscious of our responsibility to harness the natural and human resources of our continent…persuaded that the charter of the United Nations and the universal declaration of human rights. however. the right of self-determination has been strengthened. ‘Human rights in Africa: From the OAU to the African Union’. under their supervision.

“As the millennium goes closer. and disagree with these substantial human rights violations and remain in line with the principle of non-interference in their members' internal affairs. a way of securing human rights principles and its protection. Meetings to discuss human rights issues that facilitate the adoption of many statements. and the supporting host countries of those refugees are financially. However.also important. the organization has faced their legal crisis. In this regard. In addition.” According to Umozurike: “…The emphasis that President Carter placed on human rights in the international relations of the . primarily through the end of the continent. increasing levels of such violations exceed the resistance to establishing a regional human rights system that specifically defines the benchmark in accordance with the Human Rights Rules. peace. along with other international organizations and organizations. the focus of the international community has attracted human rights issues around the world and therefore.” The failure to stop the Rwanda janoside. Liberation battles and colonization of the refugee immigration problem can be solved. stability. because it represents the creation of a system that creates human rights violations that have violated human rights abuses. this stage has been placed internally and externally for a more emotional response to human rights abuses in the continent. whose human rights principles were strengthened in its charter against its predecessors.” “Regardless of the above-mentioned efforts of human rights issues in the continent. and generally. many of its members have failed to protect human rights. The manifesto is recognizable because it denounces apartheid regime in South Africa and reiterates its commitment to the equality of all people's rights to” "human dignity and respect". the inability to stop civil war in Liberia and the failure to end the crisis in Burundi or the permanent settlement of these issues will be included in the Congo Democrats' list of controversy. But this is not a AU initiative when the OAU exists in the formation of the African Regional Human Rights System.”” “There are other important roles played by the OAU role in human rights protection in Africa. We believe that their government has the right and responsibility for all members of the community regardless of color. development and continuous democracy in the continent. it differs from its efforts to end colonialism. religion or gender. This opportunity was taken over and the OAU was shifted to the African Union (AU). The emergence of the African Human Rights System was initially opposed by OAU leaders. protocols and agreements.

Cairo Conference Encouraged other seminars and conventions in the rattles and the main objective was to set up a commission or other mechanism for human rights protection in another area. the first conference of experts in Dakar brought a charter to the draft process and ultimately the 15“Umozurike U. In 1978. law. In 1979. some respect for African leaders. the Helsinki act of 1975. 20. "It invited African governments to make an African Convention of Human Rights in 1948 of human rights to give full effect to the universal statement.4 July 1970. some African leaders and some active non-government actors. Leaders such as Senegal and others President Leopold Senghar shared similar feelings . human rights. after the United Nations Conference in Cairo. (2001). Other dictatorships in Africa have nothing to do with Idi Amin and the principles of human rights. the African Bar Association Conference was held in Sierra Leone. (1983) 77 American Journal of International Law. signed by the United States. who reaffirmed the basic nature of the individual rights in Africa.United States. and the Law of Lagos declared. and seminars and meetings became intensified by 16. 70” 17“Seminar on the Realization of Economic and Social Rights with particular reference to the Developing countries’ Lusaka. OAU gave a process of creating a”“Commission on Human Rights at a meeting in Monrovia on July 1979. Conference of African jurists on (the) African legal process and the individual’ Addis Ababa.” “The search began with a meeting of African lawyers in Lagos. The African charter on human and peoples’ rights: A comprehensive agenda for human dignity and sustainable democracy in Africa (2003). p. At this time. p. Zambia 23 June. In the“process of creating a legal framework for the protection of the rights of new natives began in Lagos. As a result of pressures from the international community. 904 “ 16“See Onguergouz F. “ . Ethiopia 19-23 April 1971. and fundamental freedoms. p. The stage was thus set…for the debut of the African charter on human and peoples’ rights. nineteen African states recommended the IA Secretary General's OAU leaders and asked to set up a regional commission in Africa. Nmehielle O. which apply regionally to the proper implementation of regional human rights principles. ‘The African charter on human and peoples’ rights’. emphasized respect for human rights…an attempt was made to include human rights in the renewed EEC-ACP pact. democracy. The African human rights system.17. the UN Human Rights Council has requested the assistance of the United Nations Conference to establish organizations in Africa.African respect for the rest of the world has been betrayed and set up to establish a regional human rights system that is responsible for dealing with such issues. among other things. Canada and European countries. Nigeria in 1961.15” “Human rights issues are most influential in the international politics of President Imi Amin's prohibition on Uganda due to the violations of his people's rights. the Lome II convention. In 1969.

the Assembly of Heads of State and Government of the African Union requested the AU Commission.” Extension of Jurisdiction of the Court to Deal with Criminal Matters “In February 2009. provided that the subject matter of the opinion is not related to a matter being examined by the Commission. the African Union Commission engaged a consultant to undertake a study on the implications of extending the jurisdiction of the African Court of Justice and Human Rights (yet to become operational). such as genocide. could be considered a new crime. provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments. to assess the implications of extending the jurisdiction of the Court to try international crimes. including considering whether unconstitutional change or prolongation of government.” Advisory Jurisdiction of the Court “Under Article 4 of the Protocol. crimes against humanity and war crimes and to submit a report thereon to the Assembly in 2010. the group rejected the latest draft.” To implement this decision of the Assembly. any of the organs of the African Union. in consultation with the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights. . the Protocol and any other relevant human rights instrument ratified by the concerned States. The Expert Team found that the OAU Secretariat had prepared a draft adopted from the American and European conventions on human rights.product of the draft charter. the Court may. the Court has jurisdiction to deal with all cases and disputes submitted to it regarding the interpretation and application of the Charter. or any African organization recognized by the African Union. at the request of a Member State of the African Union.” Jurisdiction Contentious Jurisdiction of the Court “Under Article 3 of the Protocol.

the Council of Europe (CofE).” In spite of this difference.formerly the OAU. “These similarities include. the inter-American and European systems of human rights stems from the fact that the regional arrangements for the protection of human rights in Europe are extensive including. and the Organization for security and cooperation in Europe (OSCE). The significance of this difference is that while there is a kind of division of labor in Europe between these institutions in terms of the protection of human rights.” “In the inter-American. “AFRICANV INTER-AMERICAN V EUROPEAN SYSTEMS OF HUMAN RIGHTS” “SIMILARITIES” “Firstly. European and African systems of human rights.The Draft Protocol with an extended mandate of the Court is currently under consideration by AU Policy Organs. it is important to mention that one significant difference between the African. the African system is established within a single inter-governmental institution known as the African Union.aspx last accessed on 15 August 2012” . all local remedies must be exhausted before the respective courts can handle the cases. the European Union (EU).”Conversely.org/programme/other-regional-systems. the African system still manages to attain measurable similarities with the European and inter-American systems of human rights. the inter-American court of human rights and the African court on human and peoples’ rights which is soon to be merged with the African court of justice to become the African court of justice and human rights as soon as the necessary states ratify the merger protocol. in Africa. whose main normative instrument is the 1981 charter on human and peoples’ rights and its protocols18. group or individual and then presenting it to the court when the court’s 18“Available at http://bankok. The rules of procedures require that the commissions in the three systems are responsible for accepting complaints from a state.“These inter-governmental institutions all have specific mechanisms and instruments that embody the principles of human rights and its protection. the existence of an avenue for the judicial settlement of disputes through the courts in these systems.the European court of human rights. although the longest standing instrument belongs to the council of Europe which is the 1950 convention for the protection of human rights.ohchr. there is a standing requirement that for a case to be considered admissible in the courts. the responsibility is borne by a single institution following the provisions of a single instrument which makes it rather difficult to take on several cases of human rights violations simultaneously andeffectively.

” “In the European system. there is a provision for national reporting from states only when the secretary general of the Council of Europe requests for it which establishes a conditional reporting or a non. a principle embodied in articles 50 and 56 (5) of the African charter. In the African system. and 46 (1) of the American convention. (1985). Functioning and Effectiveness in Brazilian Law. or any non- governmental entity legally recognized in one or more member states of the organization. AnuarioMexicano de DerechoInternacional(2011). Furthermore. advisory opinions from the court can be provided on any legal matter that relates either with the charter or any relevant human rights instrument in general. To thisrespect. Valerio de OLIVEIRA MAZZUOLI. The inter-American court has an advisory jurisdiction which requires it to provide advisory opinions on the provisions of the American convention as well as other treaties that relate to the protection of human rights in the American states.jurisdiction and the admissibility of the case has been established. it is the responsibility of the commission to ensure that all local remedies have been exhausted before the case can be brought to the court. In essence. the African 19“See Art. there is a provision for the constant lodging of national reports to the commission as stated in article 62 of the African charter which requires each state that is party to the present charter to submit a report every two years which establishes a more permanent reporting system. pp. 79. may lodge petitions with the commission containing denunciations or complaints of violation of this convention by a state party19”. 47 of the European court of human rights “ . ‘The advisory practice of the inter-American human rights court’. there is a limitation however to this provision as the court’s advisory opinion can only be rendered on legal questions concerning how the convention and the protocols attached to it are interpreted 21. 347” 21“See art.permanent reporting system. 44 of the American Convention on human rights“ 20“See Buergenthal T. This provision requires the court to provide an advisory opinion on certain human rights issues or other issues where it has jurisdiction per request from the commission. there is a provision forthe submission of reports to the commission although unlike in the African system. there is no yearly requirement for this provision and unlike in the European system. 35 of the European convention on human rights. XI. pp. the national reports are not provided only on the request of the secretary general. In the inter-American system. “According to article 44 of the American convention “Any person or group of persons. The inter-American Human Rights Protection System: Structure. American Journal of International Law.”” “Similarities between the three systems of human rights also include the provision for the request of advisory opinions from the human rights courts in these systems.20 In the European system. 1-27.

are allowed for in article 47 of the European convention on human rights as well as in article 9 of the African charter and paragraph (f) of article 48 of the American convention. and in reality would be ineffective and absurd if the environment is not a determinant factor 23. (2005). (2005). p. 5 “ . the social. In other words. Having said this.”” “The friendly settlement of dispute is also provided for in the European. as Okere noted:” 22“See art. (1993) 3 Review of the African Commission on human and peoples’ rights” 25“Mutua M. 5. p. one cannot overlook the unique bearing that historical. ‘The African human rights system in a comparative perspective’. See also Mutua M.“The procedure for the friendly settlement of disputes outside the courts. for the intents and purposes of this study. the African charter on human and peoples’ rights is different from the charters that established the institutions in the European and inter. economic. cultural and political aspects have on these systems as the background and orientation of the member states of the different systems alsodiffer” DIFFERENCES “Maybe the first significant observation to make at this juncture is that considering strictly from a normative aspect. not all the differences and similarities between these systems will be discussed here because it would cause the work to be larger than intended. social. facilitated by the commissions. inter-American and African human rights systems cannot be interpreted in an abstract sense and therefore it should be understood that the similarities between these systems simply reflect the socio-economic and political environments within which these systems exist. The charter incorporates the three generations of human rights. and creates a link between the concepts of human rights. inter-American and African systems of human rights which is another similarity between these systems. ‘The African human rights system: A critical Evaluation’. Moreover.American systems of “human rights. Furthermore. because it is not restricted to such narrow foundations as its predecessors 24. ‘The African human rights system: A critical Evaluation’. and peoples’ rights 25.” “It is imperative to note that the rule of law in the European. and political realities in the different regions where these human rights systems are located are considered when establishing the rules of procedure and the guiding principles for the systems being analyzed.4 of the protocol to the ACHPR” 23“Eze O. Human rights in Africa: Some selected problems (1984). 79” 24“Mutua M. p.human rights system appears to contain more comprehensive references and more constant rules of procedure22. individual rights.

the charter provides for the commission and the courts in these systems to be the main enforcement mechanisms. while in the European system. “For instance. the jurisdiction rationemateriae of the European court of human rights differs from that of the inter-American andAfrican systems. International Law and Human Rights (2003). one should consider it more as a similarity regardless of the fact that it is not provided for in the normative instrument of the African system. the European commission as well as the former court of human rights were replaced with the European court on human rights (ECHR) 28. are no longer primarily interested in protecting their sovereignties due to the international concern placed on the protection of human rights globally and thus. Thisargument cannot however be taken literally in this sense because the African system has also achieved the use of judicial arbitration in the settlement of dispute through the African court of human and peoples’ rights. the court’s jurisdiction is restricted to matters that concern interpreting and applying the provisions and principles of the European convention and the 26“Okere B. Thus rather than consider this point a disparity between the systems. ‘The protection of human rights in Africa and the African charter on human and peoples’ rights: A comparative analysis with the European and American systems’. there are notable similarities between the inter-American and African systems of human rights. p. 795 “ . have conceded to establishing an international judicial organ of the African system which will have the primary responsibility of playing the role of an arbiter on cases of human rights in the region. following the adoption of protocol 11 in November of 1998”. as opposed to the European system which appears to be operating under some unique set of rules and guiding principles. 156 “ 27 ibid 28“Agarwal H O.” “Based on his own observation. (1984)6 2 Human rights Quarterly.” “There also exists other differences in the instruments and enforcement mechanisms of the three systems being discussed here including the fact that in the “African and inter-American systems. owing to the fact that many states and individuals or groups involved in cases of human rights violations rarely prefer the diplomatic settlement of such disputes. In many ways. “It is however in the area of the machinery for the protection of the guaranteed rights that the greatest difference appears as between the African charter on the one hand and the American and European conventions on the other26. The African states unlike Okere suggests. In the European court. pp. Okere noted that the difference between the African system and the European and inter-American systems is that the African charter provides for the diplomatic settlement of dispute and places less emphasis on the use of judicial arbitration unlike its European and American counterparts27.

The responsibility of the African court includes the interpretation and application of the provisions of the charter. it is important to note that there is a discrepancy in the locus standi of individuals in both systems. 348” 31 Ibid . “The commission in the African system also has a wide mandate including its promotional and protective mandates as well as the ability to act in its capacity to refer cases to the court. the protocols attached to it. The inter-American Human Rights Protection System: Structure. p. suitable for the trial of concrete cases. the inter-American commission plays a multi-functional role of both referring cases to the court.American courts in terms of its jurisdiction. pp.”” In the inter-American system. the commission in the inter-American system is responsible for referring cases to the court. and acting in its capacity as a party to the cases that it already established admissibility31. states or groups who are victims of human rights violations. “Unlike in the European system that currently lacks a commission. and the functions and the responsibilities of the commission. “In any case. In the African system. In the African system. XI. non-governmental institutions with observer status are also allowed to bring cases before the court in accordance with the provisions or article 34 (6) of the protocol to the African charter on human and peoples’ rights.protocols attached to it. article 5 of the court protocol allows that 29“Valerio de OLIVEIRA MAZZUOLI.” The case is similar in the African system where according to article 3 of the protocol to the African charter. and because the commission is no longer in existence. and individuals and other groups are allowed to refer cases directly to the court. As Valerio observes. Having established the similarity between the African and inter. and any other human rights instrument which has been ratified by the member states of the African Union. a duty that can also be performed by another member state as long as the state that is being accused of violating the principles of the convention previously accepted the jurisdiction of the court to act in this context30. the jurisdiction of the court is much broader than that of the European court including interpreting and applying the” “provisions of the convention as well as the provisions of the treaties concerning the protection of human rights…as well as a contentious jurisdiction. Functioning and Effectiveness in Brazilian Law. the court only considers cases directly submitted by individuals. when some of the state parties of the American convention is alleged to have violated any of its precepts”29. the court is provided with a wide range of jurisdictional responsibilities in comparison with the European court. and creating an opportunity for the submission of reports by non-victims of human rights violations. AnuarioMexicano de DerechoInternacional(2011). the functions and responsibilities of the inter-American commission vis-à-vis that of the European system (or lack thereof) cannot be underrated. 347” 30“Ibid.

” However. 38 of the ECHR 33“See art. The composition of the African court on human and peoples’ rights as explained in article 11 (1) of the protocol of the court resembles that of the European court. only state parties and the commission are allowed to directly bring cases before the court and individuals can only lodge complaints via the commission to the court once the admissibility of the case has been established. and the terms of four members will expire at the end of six years33. the principles for the election of judges in these two systems are still similar when compared to the inter-American court. Nonetheless. and no two judges may be nationals of the same state32.” Admittedly. and a joint reading of articles 5 (3) and 34 (6) of the court protocol will provide an understanding that for NGO’s and individuals to apply directly to the court. the matter must involve a state that has previously accepted the court’s jurisdiction. on first glance. but diverge to the extent that in the African system. The judges shall have six year terms and may only be re-elected once. in the inter-American system. one can notice the slight similarity between the courts in the three systems. 40 (1) of the ECHR” . owing to 32 See art. In the inter-American system. the African and European courts share a similarity in terms of the composition of the courts and the terms of office. the individual can decide to sideline the commission and apply directly to the court depending on the will of the state party. Judges are elected for nine years and may be re-elected. and they each have a six year term in office after which they can be re-elected only once 34. while the composition of the inter- American court. though similar in some ways. the court is composed of seven judges from the nationalities of the member states of the OAS. is that the courts in the African and inter-American systems are similar in terms of jurisdiction to the extent that they both allow for reports from non-victims of human rights violations” through the commission or otherwise which makes them less limited in scope when compared with the European court. Although the numbers and terms do not exactly tally in the European and African systems. and the court will not have more than one judge from a single member state.”” “On the other hand. “What is noteworthy however.only the commission. Thus both systems are similar inthe sense that they both encourage the submission of cases by individuals through the commission. state parties and inter-governmental organizations can stand directly before the court. outlining that the court shall be made up of eleven judges who are nationals of the member states of the former OAU/AU members. The European court of human rights is made up of the number of judges equal to that of the members of the Council of Europe (47). the terms of four members elected at the first election will expire after three years. is distinctive in other ways.

and 15 of the ECHR “ . again the case is noticeably different because while part 1 of the convention outlines civil and political rights. providing for the derogation of certain rights in times of public emergencies36 although state parties are not allowed to derogate to the international labor convention even in times of public emergencies.” “The derogatory clauses included in the charters and conventions establishing the European. educational. scientific and cultural standards set forth in the charter of the Organization of American States. 347 “ 35“Valerio de OLIVEIRA MAZZUOLI. “These clauses permeate the African charter and permit African states to restrict basic human rights to the maximum extent allowed by domestic law…the African charter 34“Valerio de OLIVEIRA MAZZUOLI. In the European system. The African charter incorporates civil and political rights as well as socio-economic and cultural rights. In the inter-American system. which appears in article 26. these rights areentrenched in different instruments including the European charter and the social charter. by legislation or other appropriate means. with a view of progressively achieving.” “It contains only a general prediction of such rights. African and inter-American systems also serve in differentiating these systems from one another. as amended by the protocol of Buenos Aires…35. XI.” The African charter on the other hand contains a serious flaw concerning its ‘claw back’ clauses and omission of derogatory clauses. Functioning and Effectiveness in Brazilian Law. terms of office for only three judges ends after three years and the rest are allowed to stay in office for the duration specified in article 54 (1) of the American convention on human rights. 4 of the ICCPR. In this case. The inter-American Human Rights Protection System: Structure. the convention does not specifically outline cultural. pp. inter-American and African systems make for a significant difference between these regional systems of human rights.” “The list of rights outlined in the instruments of the European. XI. pp. the full realization of the rights implicit in the economic. 337 “ 36“See art. especially those of economic and technical nature. Functioning and Effectiveness in Brazilian Law. The inter-American Human Rights Protection System: Structure. social. conversely. both internally and through international cooperation. which declares that ‘the state parties undertake to adopt measures. AnuarioMexicano de DerechoInternacional(2011).the fact that re-election can only be carried out once in all the systems and the nationality of the judges shall be from the member states of the members of these systems. there is a difference in the general composition of the courts in these systems which is represented by the fact that in the inter-American system. AnuarioMexicano de DerechoInternacional(2011). the European and inter-American systems both have certain similarities that the African system does not share. social or economic rights. 27 of the AMCHR.

(1984)6 2 Human rights Quarterly. the state parties cannot disregard the provisions of the charter entirely. ‘The African human rights system in a comparative perspective’. ‘The protection of human rights in Africa and the African charter on human and peoples’ rights: A comparative analysis with the European and American systems’. the commission as a whole fails to also take such a position on the subject39. 4 of the ACHPR. this provision is embodied in the European convention for the prevention of torture and inhumane or degrading treatment or punishment which was adopted in 1987 by the member states of the Council of Europe. inhumane and degrading treatments. a case can be made for the originality of the African charter and its protocols which could challenge the separation of civil and political rights from social. 169”“ . (1993) 3 Review of the African Commission on human and peoples’ rights.” so that in cases of emergencies or special circumstances. many fundamental rights in their municipal laws” 37. (2006) 6/1 Human Rights Law Review.does not contain a general derogation clause. the African system is found to still be lacking in this aspect although that is not to say that the African charter does not provide for protection against torture which is explicitly stated in article 5 of the ACHPR. “the only qualification to the right of life is that ‘no one may be arbitrarily deprived of “this right”38. Okere B. “if and when the charter is revised. and as for a separate instrument protecting civilians fromtorture. and in the inter-American system.”” “Moreover. inhumane and degrading treatments or punishment. and inter-American system’s normative instruments although the European and inter-American systems both include provisions concerning the abolishment of the death penalty in their conventions as well as separate instruments to eradicate torture and other cruel. 153 “ 39“Murray R. as 37“Mutua M. p. even though some commissioners suggest that the death penalty is a violation of the right to life according to article 4 of the charter. pp. In the European system. making this omission all the more serious because the charter in effect permits states through the ‘claw back’ clauses tosuspend.” In the African system of human rights. ‘Developments in the African human rights system 2003-04’. it is the 1985 inter-American convention to prevent and punish torture. According to Murray’s observation on this aspect. protecting civilians from not just torture. According to Mutua’s own recommendation. economic and cultural rights as seen in the European and inter-American system’s normative instruments. de facto. “The emphasis on the protection of life and liberty as the most fundamental aspects of human rights are seen in the African. but also against slavery and other forms of cruel. 7” 38“See Art. provisions for non-derrogable rights ought to be included as well as what rights and under what conditions certain rights are allowed to be derrogable. European. p.

as opposed to the European and inter-American systems where the human rights instruments were drafted to represent a tradition of using these rights as rules which allow the individual to defend himself against the entity representing it. the second generation rights must also be satisfied.”The European charter or conventions do not include such individual rights while the inter-American instruments do not ignore these duties. it is imperative to note that in consolidating their commitment to the incorporation of socio-economic and cultural rights in the charter. “As long as we are still on the issue of the originality of the African charter.well as that of the universal system of human rights. which incidentally. Right from the preamble to the African charter. 32 of the American convention on human rights” .” “This in many ways reinforces arguments presented previously in this work which identified that in African societies. Thus the African charter can be said to have been drafted in accordance with African traditions of the subordination of the individual to the community. but this is seen in more general terms as compared to the comprehensive attention paid to individual duties in the African charter. This portrays a statement from the African states and their understanding that the second generation rights are independent and indivisible as well. Some may argue that while the originality of the African charter serves to establish the commitment by the African states to the protection andpromotion of human rights in the region. which is not seen in the instruments of the other systems. shames the rather vague and meaningless obligations conferred on the individual in other regional and universal instruments. it is seen that there is the mention of individual duties in article 29 of the universal declaration of human rights. the African states have gone a step further to include the right of equal access to public property and services in article 13(3) of the ACHPR. with principles relating to the historic antecedents and philosophies of the African continent. the individual is awarded certain duties and rights which serves the interests of the entire community. the inclusion of individual rights in the ACHPR is another feature that establishes the originality of the charter from its predecessors. but refer to them in a single article which was so widely formulated that it is very difficult to comprehend the legal content of these individual duties prescribed in the charter 40. The charter dedicates a whole chapter to the duties imposed on individuals.” “Although there are rights guaranteed in the European and inter-American charters that are not seen in the African charter. “At the universal level. it is explicitly stated that socio-economic and cultural rights cannot be dissociated from the first generation rights. it causes the charter to fall short in the 40“Art. and that for political and civil rights to be enjoyed.

the drafters were more interested in emphasizing the need for the independence and indivisibility of such rights.”“For instance. Scholars like Umozurike have argued in favor of this point stating that this could have been 41“Murray R. which are considered important socio-economic rights preserved in the instruments of the other systems including the ICESCR. This inconsistency has led scholars like Murray to suggest that on such issues. (2006) 6/1 Human Rights Law Review. Even though the court exists in the African system.” “Also considered to be a low point for the African charter is that the non-clarification on the binding nature and character of the charter has caused states not to comply with specific obligations provided for in the charter an example of which is the neglect by African states to comply with article 62 of the charter which obliges them to submit regular reports to the African commission on the status of human rights protection within their jurisdictions. For instance. This shortcoming provides insight on the probable reason why the enforcement of human rights in the region has proven to be problematic. the enthusiasm of the African states to prove that the second generation rights should not be dissociated from the first generation rights. p.save for the obligations awarded them in the universal human rights instruments which indicates their binding characters explicitly. the right to social security and the right to strike. the African charter fails to mention such rights as the right to form or join trade unions. states may as well do as they choose-which they often do.incorporation of certain universal principles and concepts necessary for the effective enforcement of human rights in Africa.” “Furthermore. the definition should include concepts and terms that would prevent extra judicial killings41. the African charter also falls short in comparison with the instruments of the other human rights systems because it does not include provisions for the establishment of a judicial institution like a court which would handle cases of human rights violations. with regard to the right of every human being to life. ‘Developments in the African human rights system 2003-04’. the charter recognizes this right but the vagueness of the definition of the concept of ‘human being’ has left loop holes for each state and indeed individuals to determine the meaning of the concept based on individual understandings. as stated previously. it is not an initiative that was called for by the charter. drove the drafting of the charter towards a different course and instead of clearly cataloguing and defining these socio- economic and cultural rights. If the charter which is the only instrument under which the African systems functions does not clarify its binding nature. 169” . Aside from this. which has brought about difficulties in many policy areas including the issue of abortion.

OAU DOC CAB/LEG/67/3.” 42“Umozurike U. (1993) 3 Review of the African Commission on human and peoples’ rights. especially not so when at the domestic levels in many of the state parties. (1983) 77 American Journal of International Law. there is also the need to focus resources at the regional level to ensure that human rights are promoted and protected according to the principles of international human rights law. that there is need for an effective human rights system in the region as a result of the struggles that is faced by African states especially in the post-colonial era which brought about different uncertainties with the dawn of the 21st century. naïveté and assumption that conciliation instead of adversarial settlement of dispute would be a sufficient remedy to the cases of human rights violations which are proliferating. the adversarial settlement of disputes is at the centre of the legal procedure44. ‘The African charter on human and peoples’ rights’. p. The allegation made by others is that those who were burdened with the responsibility of drafting the charter were motivated to ensure that the charter reflects the African conception of human rights. A number of issues were raised and discussed throughout the course of this study including the normative and institutional aspects of the African system. 27 June 1981” 44“Mutua M. which will better serve the needs of the African people 43. The study has uncovered just like many before it. 342 “ . For reasonable standards of human rights to be achieved in the continent. ‘The African human rights system in a comparative perspective’. rev 5.an intentional omission of the drafters of the charter. to uphold the African values of conciliation rather than adversarial settlement of disputes42. as well as the historical antecedents and the philosophical background of the concept of human rights in Africa. 909 “ 43“See generally the African charter on human and peoples’ rights. p.” CONCLUSION “The main motivation for this study has been the general review of the African human rights system to determine its degree of efficiency especially in comparison with the European and inter-American systems of human rights. there have been great criticisms for this pretention. However. and theAfrican philosophy of law.