African Charter On Human And Peoples' Rights Research Articles

Legal Implications of Judicial Independence on Implementation of Provisions of the African Commission on Human and Peoples’ Rights in Nigeria

In this study, a legal examination of judiciary role in the implementation of human right protection decisions emanating from the African Commission on Human and Peoples’ Rights- African Commission (AC) - in Nigeria, was examined. It employs series of intricate factors including the African Charter on Human and Peoples’ Rights (ACHPR), the AC and Independence of the Judiciary. The research, which has its roots in historical contexts, highlights the challenges and legal difficulties that the Commission faces in carrying out its decisions. It examines the legal framework dictating the implementation process, drawing parallels between important decisions of the AC and the developmental journey of the Nigerian judicial system. The study looks at the main implementation issues and offers complex viewpoints on the difficulties encountered in accomplishing the goals of the Charter. It acknowledges that the African Commission on Human Rights (ACHPR) has the responsibility to promote and defend human rights throughout the continent of Africa; but, it finds that the ability and desire of national governments and institutions, particularly the judiciary, to carry out its functions determines effectiveness of the decisions. Even though the judiciary holds a position in ensuring implementation, there is setback due to inability to freely act as an independent body. The article gives special attention to the constitutional non-justiciability of socio-economic rights, which amongst others, is a major complication in ensuring adherence. The study recommends strategies to strengthen the network for ensuring compliance with the Commission’s decisions.

An Analysis of the Role of African Values, Traditions and Morals in the Interpretation of Children's Rights

Both the African Charter on Human and Peoples' Rights (ACHPR) and the African Charter on the Rights and Welfare of the Child (ACRWC) expressly provide for African values, traditions and morals. This inclusion is a unique characteristic that illustrates the regionality of these two instruments. The question of how "African values" should be understood and interpreted, however, remains somewhat unclear with the possibility of challenges arising in its interpretation and application. The article considers how African values are incorporated into the ACHPR and the ACRWC to provide an understanding of African values. The article subsequently engages in an analysis of the significance of the incorporation of African values for the interpretation of children's rights by considering both criticism and praise which have been levelled against the inclusion of African values in the ACRWC and ACHPR. This analysis will ultimately aid in determining the contribution of African values to the interpretation and possible realisation of children's rights.

REALISING THE RIGHT TO DEVELOPMENT IN GHANA THROUGH ITS PARLIAMENT

The right to development (RTD) remains a controversial subject at the international level due to disagreements over its nature as a collective and a people’s right. This notwithstanding, the RTD is recognised by the African human rights system as a collective right encompassing all fundamental rights and freedoms. Besides, the ratification of the African Charter on Human and Peoples’ Rights (ACHPR), which recognises the RTD coupled with the implicit recognition of the RTD in the 1992 Constitution of the Republic of Ghana, makes the RTD an entitlement for Ghanaians. However, its realisation by the state through the executive appears challenging, considering the level of development in Ghana. This article, therefore, explores an alternativefocused on legislative measures. The article seeks to demonstrate the extent to which the RTD can be realised in Ghana through its Parliament. It argues that removing the constitutional constraints on Parliament will potentially make the institution contribute significantly towards the realisation of the RTD.

Combating Environmental Degradation in Nigeria through the Recognition of the Rights of Nature

Environmental degradation has increasingly plagued the human and natural environment especially since the discovery of petroleum in Nigeria. The right to a clean and healthy environment although provided for in the Constitution has been seen to be non-justiciable except by alternative pathways such as in reference to the African Charter on Human and Peoples Rights (ACHPR) or in a foreign court. It is also a fact that environmental pollution cases have been lost due to technicalities. This has emboldened some petroleum sector operators to continue in bad environmental practices. Hence the need for alternative ways to combat environmental degradation from bad environmental practices such as the recognition of the rights of nature.

‘When Rescuers become Refoulers: Closing Kenya’s Refugee Camps amid Terrorism Threats’ and leaving vulnerable groups out in the cold

Kenya’s counter-terrorism measures, following entry into Somalia, relocated refugees to designated camps. However, by violating a refugee’s freedom of movement, mass relocation contravenes the African Charter on Human and Peoples’ Rights (ACHPR). Regional jurisprudence informed the Kenyan High Court’s Kituo cha Sheria v Attorney General decision holding that mass refugee relocation is indeed refoulement. It necessarily discriminates, punishes disproportionately, and may amount to a ‘failure to protect’ refugees against torture, a crime against humanity. However, the United Nations Convention Relating to the Status of Refugees (Refugees Convention) merely prohibits hosts from returning escapees to countries where they are targeted for persecution. Conversely, refugees who are either reasonably regarded as threatening national security or reasonably suspected of serious crimes are deemed to ‘waive’ their non-refoulement right. Nonetheless, the court’s legal moralism insisted that states should prove ‘waiver’ and never torture refugees. Invoking an ‘individual criminality’ principle required proof of a refugee’s dangerousness. Suspects can furthermore not be condemned unheard. Therefore, establishing whether ‘mass waiver’ is possible, is problematic. Are blanket relocation directives justifiable simply because proving ‘reasonable belief’ of refugees committing terror acts or serious crimes are difficult? Although Samow Mumin Mohamed v Cabinet Secretary, Ministry of Interior Security and Co-Ordination condoned mass refugee relocation Refugee Consortium of Kenya v Attorney did not. Curiously, to clarify the ambiguity Kenya National Commission on Human Rights v Attorney Genera elevated the required standard of proof for ‘waiver’ under the Refugees Convention to one of ‘beyond reasonable doubt.’ Previously, in Coalition for Reform and Democracy (CORD) v Republic of Kenya legislative caps on refugee numbers were rejected. Subsequently, a new Refugee Bill (2019) proposes to legalise confining refugees to designated camps. This article applies common-law principles of the duty on rescuers to evaluate whether mass refugee relocation refoules.

Homosexuality and the African Charter on Human and Peoples' Rights: What Can Be Learned from the History of the European Convention on Human Rights?

Despite differences between the European Convention on Human Rights (ECHR) and the African Charter on Human and Peoples' Rights (ACHPR) in terms of the substantive rights guaranteed and machineries to enforce them, both instruments have been foundational in the establishment of organizations that share a common history of rejecting human rights complaints from homosexuals. Although the contemporary jurisprudence of the European Court of Human Rights (ECtHR) on homosexuality may contrast sharply with that of the African Court on Human and Peoples' Rights (ACtHPR) and the African Commission on Human and Peoples' Rights (ACmHPR) – because the ACtHPR and ACmHPR have never upheld a complaint relating to sexual orientation – the early history of the ECtHR and the former European Commission on Human Rights (ECmHR) mirrors the current African stance. This article explores what those seeking to develop gay and lesbian rights in Africa might usefully learn from the historical evolution of similar rights under the ECHR.

Human rights litigation using international human rights law : the IHRDA experience

Africa is a continent with its own unique peculiarities and a complex cycle of problems: poverty, hunger and malnutrition; deeply rooted gender inequalities and inequities; discrimination based on ethnic differences; marginalisation of minorities; diseases; persistent civil strife; abuse of state power and resources as shown by arbitrary detentions, extra-judicial executions, and rampant corruption; foreign exploitation of resources; as well as impunity and many other forms of ills that frustrate meaningful enjoyment of human rights by all. Confronting these ills requires a reinforcement of multiple strategies and efforts by various stakeholders including states and civil society. The emergence of the African Charter on Human and Peoples' Rights (ACHPR) and a proliferation of kindred instruments establishing bodies with the mandate to handle communications alleging violations of human rights that have not been effectively redressed by national jurisdictions, stands as a set of concrete steps showing a semblance of commitment by states towards respect and promotion of human rights on the continent. In the main, the existence of these bodies with flexible practices and procedures for handling complaints provides an excellent opportunity for litigation to be used for the vindication of rights where domestic systems either fail, or are reluctant to remedy violations. To date, litigation before supra-national bodies is spearheaded by non-governmental organisations (NGOs) acting on behalf of individual victims or indeterminate numbers of victims.

Workers' right to freedom of association under the African Charter on Human and Peoples' Rights and in three selected African Union member states

When the African Charter on Human and Peoples’ Rights (ACHPR) was adopted in June 1981, it was hailed as one of the most progressive regional human rights instruments that could help Africa progress from a continent of ‘human wrongs’ it used to be, to the one of ‘human rights’. The right to freedom of association is one of the rights entrenched in the ACHPR. This article examines workers’ right to freedom of association under the ACHPR with illustrations from three African countries that are parties to this regional instrument; namely, Ghana, Zimbabwe and South Africa. These countries provide three different but complementary scenarios which may help in assessing the protection of human rights in Africa in general and workers’ right to freedom of association in particular. This article concludes with recommendations for the promotion of workers’ right to freedom of association which is critical to socio-economic development in Africa.

TOWARDS NON-DISCRIMINATION AGAINSTWOMEN AND DE JURE EQUALITY IN UGANDA: THE ROLE OF UGANDA'S CONSTITUTIONAL COURT

The principles of equality and non-discrimination represent the twin pillars or the cornerstone upon which the whole edifice of human rights law is established.1 At least every State in the world today is a party to a human rights treaty prohibiting discrimination on the basis of sex and/or protecting equality between men and women.2 Despite this fact inequality and discrimination remain two major impediments to the enjoyment of human rights of women. Discrimination against women on the basis of sex denies or limits as it does their equality with men, and is ‘fundamentally unjust’ since it violates the principles of equality of rights and respect for human dignity.3 It is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their States, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women.4 International human rights instruments such as Article 3 of the International Covenant on Civil and Political Rights (ICCPR)5 and Article 3 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)6 underline commitment to sexual equality in the enjoyment of all civil and political rights, as well as economic, social and cultural rights. Similarly, Article 2 and 3 of the African Charter on Human and Peoples’ Rights (ACHPR) prohibit discrimination and protect equality before the law.7 This demands de jure (or formal) equality and de facto (or substantive) equality for men and women.8 Formal equality assumes that equality is achieved if a law or policy treats men and women in a neutral manner.9 Substantive equality is concerned, in addition, with the effects of laws, policies and practices and with ensuring that they do not maintain, but rather alleviate, the inherent disadvantages that particular groups experience.10