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TS1: HR standards and mechanisms > African system > Flashcards

African system Flashcards

1
Q

name and explain a case linked to the violations of the rights of an indigenous group

A

Endorois Welfare Council v Kenya:

  • he African Commission held the government of Kenya accountable for violations of the rights of an indigenous group linked to the denial of access to their traditional land. The decision is notable as the first time that the African Commission elaborates on the meaning of the right to development in article 22 of the African Charter, the only international treaty to recognise this right.
  • The African Commission also notes that normatively, the African Charter is an innovative and unique human rights document compared to other regional human rights instruments, in placing special emphasis on the rights of ‘peoples’

action: - Ensure that the Endorois community has unrestricted access to Lake Bogori
- Pay royalties to the Endorois from existing economic activities
- Report on the implementation of these recommendations within three months from the date of notification

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2
Q

why are regional systems like this one important?

A
  • more accesable
  • factors in cultural differences
  • accountability (getting redress) and enforcement
  • subsidiary to the international system
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3
Q
A
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4
Q

Key facts about the AU.

A
  • previously the Organisation of African Union in 1963 (32 members)
  • Established in 2001 as the successor of the Organisation of African unity (55 members)
  • Highest body the AU commission
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5
Q

Jurisdiction of AU.

A

AU has the right to intervene in war crimes and genocide unlike OAU art 4h (after Rwandan genocide)- NEVER BEEN USED IN PRACTICE

Now given juraditiction of international crimes- officals in office gicvern immunity.

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6
Q

Name other charters passed.

A
  • African Charter on Human and Peoples’ Rights 1981
  • African Charter on the Rights and Welfare of the Child (ACRWC) 1990
  • 2009 AU IDP/Kampala Convention (2012) – 33 ONLY REGIONAL DISPLACED PERSONS
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7
Q

list the AU Tools of accountability.

A
  1. ‘Name and shame’
  2. suspension
  3. sanctions
  4. expulsion

→ makes the AU more supranational

eg Moroccos readmission in 2016 despite their occupation of Western Sahara

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8
Q

describe the context behind the African charter.

A
  • Demise of dictatorships(window of opportunity)
  • Growing civil society pressure
  • States reinterpreting legitimacy External factors
  • UN encouragement to form regional systems Human rights conditionality (Carter)
  • Changed human rights environment
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9
Q

Name 3 unique features of the African charter.

A
  1. Concept of peoples
    - Right of the collective
    - Speaks to the communalistic perspective
    - Rights of the Katangese in zaire on ethnic and linguistic grounds
    - Implication: standing is different, you don’t have to be a victim as an individual but as a collective
    - Important because access has been difficult
  2. Justiciability of socio-economic rights
    - Takes away the dichotomy and distinction of social and political and economic
    - Speaks to reality of the African continent- intertwined
    - Justiciability of the right to development
    - UN system has challenged this
    - Endorois community against kenya ruled
    - Confluence of the 2 elements
  3. Concept of individual duties
    - Duty is usually the state
    - Brings morality
    - Rights and duties are reciprocal
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10
Q

Effects of the charters unique features.

A
  • Great on normative expansion
  • Application needs improvement
  • Non-implication
  • Increasing power of commission
  • Commission criticised for following political view
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11
Q

describe the role of the African Commission on Human and Peoples’ Rights (ACHPR)

A
  • mandate in art 59- reports to the Executive council of the AU.
  • ‘Protective’ mandate: Responsible for supervising states compliance with African charter and processing individual and inter-state complaints.
  • ‘Promotional’ mandate: establish a culture of HR compliance - diplomatic trips
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12
Q

what is cause for admissibility in the commission .

A

cases only admissible after exhaustion of local remedies.

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13
Q

how is the commission structured?

A
  • 11 expert members
  • Quasi-judicial body- functions like a court not a binding decision just recommendation.
  • Started 1987
  • Reviews complaints and refers to the African court
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14
Q

what is a clawback clause?

A

They permit a state, unilateral discretion, to restrict treaty obligation or the rights guaranteed by the Charter

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15
Q
A
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16
Q

What happened in Jawara v the Gambia?

A
  • he complainant’s government was overthrown in a military coup in July 1994. Since then, according to the complainant, the incumbent military government had violated the African Charter of Human and Peoples’ Rights by, inter alia, abolishing the Gambian Constitution’s Bill of Rights, banning political parties and ministers of the former civilian government, killing soldiers affiliated with the civilian government, and arresting journalists without cause and detaining them without trial.
  • With respect to Article 9, the Commission concluded that the arrest, detention, expulsion, and intimidation of journalists for articles they published deprived journalists of their right to disseminate opinions as well of the public of their right to information. The government provided no defense to the allegations and the Commission concluded there was a clear violation of the right to freedom of expression
17
Q

Jurisdiction of African Court on Human and Peoples’ Rights (ACtHPR).

A
  • contentious jurisdiction- jurisdiction over matters in controversy between parties, in contradistinction to voluntary jurisdiction, or that exercised upon matters not opposed or controverted.
  • Advisory jurisdiction
  • Jurisdiction extended: to included any other relevant HR instrument ratified states concerned- recenter African contributions to international law.

Broad interpretive mandate: ability to draw inspiration from other treaties.

18
Q

who does the court preside over?

A
  • Established by additional protocol in the charter
  • only applies to states that have ratified the court protocol not just the AU
  • Ratified by 27 states
19
Q

structural features of the court.

A
  • 11 judges
  • Judicial body
  • Started 2006
  • Adopted legally binding decsions
20
Q

describe Mtikila and others v Tanzania.

A

On 14 June 2013 the Court delivered the Judgement and unanimously found that Tanzania’s ban on independent candidates had violated Mtikila’s Article 10 (free association) and Article 13(1) (right to participate freely in government) Charter rights

21
Q

summarise important unique features of court.

A
  1. Hybrid court- indirect (through commission) and direct access- hybrid of Inter-American and European system.
  2. Reasonable time- (6 years) between exhaustion of local remedies and submission to court- Inter-American has 6 months and European 4 months.
  3. Norm- entrepreneur- important to shape to the regional context. Extends the UN refugee convention to not only include fear of persecution but also if the states public order has been disrupted.
22
Q

sum up regional differences.

A
  1. Collective nature of the charter
  2. Justiciability of socio-economic rights (Ogoniland case).
  3. Individual duties
  4. Progressive interoperation of the charter
  5. Supranational
23
Q

features of African Committee of Experts on the Rights and Welfare of the Child.

A
  • The African Charter on the Rights and Welfare of the Child sets a higher level of protection for children than the UN Convention on the Rights of the Child.
  • African Peer Review Mechanism
  • Pan-African Parliament
  • Legislative organ of the AU
  • HAS CONSULTATIVE POWERS
24
Q

unique features of Maputo Protocol (Compared to CEDAW)

A
  1. HIV partner notification
  2. FGM- unlike CEDAW article 5a this document is specific.
  3. Abortion in some extreme cases.
25
Q

LGBTQI Human rights

A
  1. Culture
    - Patriarchy seemed as threatening male primacy and heteronormativity
  2. Tradition
    - Threatened communitarisism which promotes procreation
    - Religion
    - Patriarchy
    - Procreation
    - Gender roles
    - Non-state actors
  • State actors
    • Makes laws on the morality of the majority
    • Violates the persons right to privacy
    • Exclusion from healthcare
    • Obligation: refrain from enforcing criminalisation NOT ENOUGH, anti-discrimination and hate-crime laws
  • Inter-state and inter-governmental
    • African commission of lesbians was denied observer status

TS1: HR standards and mechanisms (8 decks)

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