Regional Human Rights Systems (Africa) Flashcards
African Union
55 members, founded 2002. Treaty: African Charter on Human and Peoples’ Rights. Also uses other regional human rights treaties. Two main institutions: 1. African Commission on Human and People’s Rights. 2. African Court on Human and People’s Rights.
African Commission on Human and Peoples’ Rights
Established in 1987. 11 human rights experts. African Charter interpretation: Case law and resolutions. State reports and Special Rapporteurs. Complaints procedure: 1. Inter-state communications (rare). 2. Individual communications: Individuals. bring a complaint against their government for a violation of African Charter. Difference from American and European system: Anyone can bring a case for violation on behalf of an alleged victim. Non-binding recommendations.
African Court on Human and Peoples’ Rights
Established in 1998/2004 to be merged with the African Court of Justice. 11 judges. Optional jurisdiction. Applicable law: African Charter on H&P Rights. Also gives advisory opinions at the request of AU organs.
Filing a case with the African Court on Human and Peoples’ Rights
Referral by the Commission, states involved in a case, or African IGOs. Can be referred by the Commission, provided that the state in question has accepted the jurisdiction. Direct access for individuals and civil society organizations (doesn’t exist in American and European courts). A mechanism that is optional, which you accept by issuing a declaration under Article 34 (6) of the African Charter.
Morocco and the AU human rights system
Morocco’s occupation of Western Sahara and historical refusal to join the OAU/AU –> Morocco finally joins the AU in 2017. As a result of Western Sahara getting accepted as a member of the AU, Morocco decided to leave the organization. Morocco had been careful enough to never actually ratify the charter. In 2017 they were readmitted with an understanding that the questions of Western Sahara would not be revisited.
Case: Bernard Mornah vs. Benin et al (ACtHPR 2018/2022)
In 2018, Bernard Mornah filed a case against the 8 members who had, at the time, all accepted the direct access to individual complaints procedure. Claimed that by accepting Morocco’s entry into the AU, the members of the AU collectively violated the Sahrawi people’s rights under the ACHPR. Benin, Côte d’Ivoire and Tanzania withdrew their Art.34(6) declarations. The Court accepted the withdrawals, the the legal effect was not immediate because they had accepted the mechanism at the time the case was filed, so the court had jurisdiction. The respondent states argued that they were not responsible for a decision taken by the AU nor do they have the power to interfere in matters between sovereign states. Court concluded that Morocco’s occupation of Western Sahara is incompatible with the right to self-determination of the Sahrawi people and constitutes a violation of that right, but that the respondent States have not violated the right to self-determination of the Sahrawi people.
The Economic Community of West African States (ECOWAS) Court of Justice
Set up in 2001. Compulsory jurisdiction. Applies the African Charter on H&P Rights. Individuals can file a complaint with the Court against ECOWAS member states (15) - No exhaustion of domestic remedies required (Big difference with all other human rights courts). Decisions are legally-binding.
Constitutional and legislative protections: Constitutional guarantees
Especially civil & political rights have traditionally been part of national constitutions. Economic, social and cultural rights have been included at the constitution level in new reforms (very top of domestic legal system). In additional to explicitly contained rights, judicial interpretation of constitutional rights have also expanded the understanding of rights.
Constitutional and legislative protections: Legislative protections
Recognizes human rights not with the highest status they can haven but with regular legislation. Statutory bill of rights: Problem is that they have hierarchical weakness, but it can be helpful to develop a culture of human rights. Specific legislation can be passed to protect human rights (besides treaty-implementing legislation).
Constitutional and legislative protections: Common law protections
System in which judicial decisions are a source of domestic law.
Domestic institutional protections: The Courts
Constitutional review (reactive function). All courts vs. constitutional courts. Legal standing / review in the abstract / pre-enactment review. Extraterritorial jurisdiction & Universal jurisdiction.
Domestic institutional protections: The Executive
Bureaucratic HR “agents” and practices.
Domestic institutional protections: The legislature
HR committees; Constitutional review (e.g. China)
Domestic institutional protections: Ombudsmen
Complaints, investigations, recommendations.
Domestic institutional protections: National Human Rights Institutions (NHRIs)
Proactive/reactive function. Managerial role: Advising/educating government officials. Enforcement role: Investigation; participation in litigation (amicus curiae).
