African Commission Research Articles

The role of human dignity in the jurisprudence of the African Commission on Human and Peoples’ Rights

Human dignity is a concept that is often mentioned in core human rights treaties and national constitutions as the foundation of human rights. At its core it demands respect for the life and integrity of the human person, recognition of the equal worth of human beings and respect for their autonomy or self-determination. Many national and supra-national courtsalso use the concept to explicate the meaning and limitations of human rights. The constitutional court of Germany, South Africa and the European Court on Human Rights are notable in this regard. In recent years, the US Supreme Court has also increasingly used the concept in resolving hard cases and expanding the scope constitutional rights. Though, the role andapplication of human dignity has received considerable scholarly attention, it is mainly confined to the European constitutional orders and the US constitutional system. With respect to regional human rights systems, scholars have largely focused on examining the role of human dignity in the jurisprudence of European Court of Human Rights and the Inter-AmericanCourt. As such, little is known about what role human dignity is playing or could play in the interpretation of rights in the African human rights system. This is alarming considering the poor status of protection of human rights and weak constitutional right jurisprudence in many countries of Africa. Accordingly, this article seeks to fill the lacuna by examining the role of human dignity in the African human rights system by exploring its place in religious and cultural value systems of different African societies.

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.

Intersexuality: The Role of Political Elite in Recognizing, Respecting, Protecting and Affirming Persons Born with Intersex Variations’ Human and Citizenship Rights in Tanzania

Intersex’ is an umbrella for persons born with variations of sex characteristics which may not correspond with societal and medical expected ‘male’ or ‘female’ bodies. Persons with intersex variations, therefore, are born with physical or biological characteristics that do not fit the typical definition for ‘male’ or ‘female’. In this paper I establish that there is no vivacious evidence that the Tanzania Government has taken stern measures to end discrimination against persons born with intersex variations in the country, and to ensure the right of bodily integrity, physical autonomy and self-determination as per demands and calls by The UN Human Rights Declarations and Resolutions, The Vienna Declaration and Programme of Action 1993, The Malta Declaration, 2013, the World Intersex Fora (that took place between 2011 and 2017), The Public Statement by the African Intersex Movement, 2017, and The African Commission on Human and Peoples’ Rights, 2023. Incontestably, awareness of intersex conditions and persons born with intersex variations’ human and citizenship rights is increasing among this population group, researchers, parents/guardians, activists and in the media in this country. Increase of awareness is likely to come with increasing revolt, which may provide the impetus for legal reform. The Tanzania government, therefore, ought not to wait for this ignominy to surface — rather should act now to end cosmetic and harmful surgeries and protect vulnerable infants and children born with intersex variations in this country.

Legal and Policy Gaps Affecting Digital Rights in Malawi

Digital rights are human rights in the digital era, specifically on the internet. Digital rights are becoming critical as people increasingly spend a lot of time online, accessing different services and information that are key to human survival and well-being. Resolution 362 (on the Right to Freedom of Information and Expression on the Internet in Africa) of The African Commission on Human and Peoples’ Rights, and resolution on the Promotion, Protection, and Enjoyment of Human Rights on the Internet of the United Nations Human Rights Council affirmed that same rights that people enjoy offline must also be protected online. This paper assesses legal and policy gaps affecting digital rights in Malawi, thereby making a critical contribution to scholarship in this area. In addition to the literature and policy review of digital rights in Malawi, the study used a questionnaire as a data collection tool, targeting purposefully selected key informants from Malawi’s telecommunication sector, media associations, NGOs, and telecommunication regulators to assess challenges affecting digital rights in Malawi. The study found that achieving digital rights in the country remains a distant dream for most people due to the expensive cost of the internet, insufficient telecommunication and electricity infrastructure, restrictive legal framework, and low digital literacy. These factors make access to the ICTs and the internet inaccessible for most people, denying them access to and participation in political, social, and economic activities enabled by digital platforms.

Climate Change Litigation before the African Human Rights System: Prospects and Pitfalls

Abstract Africa is a promising regional venue for climate change-related complaints—not least because it is distinctively vulnerable to climate harms. Yet, neither the African Commission on Human and Peoples’ Rights nor the African Court of Human and Peoples’ Rights have been theatres to such disputes at the time of writing. In anticipation that climate litigation will emerge before the African human rights system, this practice note provides information to the non-State actors and their lawyers on the procedural challenges that may arise, demonstrating how such challenges may be circumventable in the African context.

Amicable Settlements: A Comment on Guideline 13(2)(v) of the Revised Guidelines for Consideration of Communications and Monitoring Implementation of Decisions by the African Committee of Experts on the Rights and Welfare of the Child

The African Committee on the Rights and Welfare of the Child (African Children’s Committee) is mandated to monitor the implementation of the African Charter on the Rights and Welfare of the Child in Africa (African Children’s Charter). The African Children’s Committee has developed Revised Guidelines for Consideration of Communications and Monitoring Implementation of Decisions by the African Committee of Experts (RCG) which provide for amicable settlements. This contribution argues that the implementation of amicable settlements presents gaps that do not reconcile the substantive aspects on the one hand and the procedural on the other, in terms of practical implementation. This contribution contextualises the use of amicable settlements in international law and evaluates their use by the African Children’s Committee. The comment examines the application of Guideline 13(2)(v) and its consequential implications and it is proposed that it should be revisited to distinguish between the substantive and procedural aspects of the amicable settlements and how they should be handled to their logical conclusion.

Legal & H.R. Centre and Centre for Reproductive Rights (on behalf of Tanzanian girls) v. Tanz. (Afr. Committee of Experts on the RTS & Welfare of the Child (ACERWC))

On September 15, 2022, the African Committee of Experts on the Rights and Welfare of the Child (hereinafter ACERWC or Committee) issued its decision in the matter of Legal and Human Rights Centre and Centre for Reproductive Rights v. Tanzania. This case is related to the practice of forced pregnancy testing in schools in Tanzania and the later expulsion of girls who are found to be pregnant and/or married. The Communication was presented by the Legal and Human Rights Centre and the Centre for Reproductive Rights, on behalf of Tanzanian girls. This decision represents an important contribution to the line of international cases advancing the rights of girls under 18 years old, in particular in the areas of sexual and reproductive health and education, exemplified by increasing jurisprudence issued by regional human rights bodies.

Beyond Legal Measures: A Review of the DRC's Initial Report under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

AbstractThe Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) established a reporting process to monitor compliance. Despite its shortcomings, this process provides an opportunity for states to engage in a frank, constructive and open dialogue with the African Commission on the measures they have adopted to realize women's rights and the challenges they face. The DRC's initial report on implementing the Maputo Protocol provides an opportunity to assess how the country has advanced women's rights. This article notes that the DRC has adopted legislation and policies to comply with some of its obligations under the protocol. However, these have not brought about much transformation in terms of effective enjoyment of rights due to the contested nature of many women's rights and the community's patriarchal mindset. The article argues that states should focus on extra-legal measures that can counteract negative attitudes and beliefs towards women's rights.

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About the Contributors

"Speak to a community audience": The Staffrider illustrations of Mzwakhe (Muziwakhe Nhlabatsi) 1979-1987

The South African literary and arts magazine Staffrider (1978-1993) is known for its Black Consciousness stance and the contribution it made in the struggle against apartheid. From its inception the magazine contained illustrations, photographs, artwork and graphics alongside prose, poetry, plays, essays and reports, and for nearly a decade illustrations signed by 'Mzwakhe' appeared frequently. Mzwakhe, the pen-name of Muziwakhe Nhlabatsi, contributed a sizeable number of illustrations to accompany the writing of several notable South African authors. This article offers a discussion of his illustrative contribution to Staffrider in the period from 1979 to 1987 in the context of Black Consciousness as a counter to hegemonic apartheid discourse. I discuss Black Consciousness and the 'Black Consciousness Aesthetic' (Hill 2018) in relation to his illustrations, point out the reciprocal relationship between his educational work for the South African Committee for Higher Education (SACHED) and his cartoons and comics for Staffrider and describe his portraits and the influence of African masks on his work. Staffrider presented the opportunity for a counter discourse to the official apartheid narratives to be published (Manase 2005:70) and I argue that Nhlabatsi contributed to this counter discourse through his illustrations which visualised Black Consciousness in a variety of styles and techniques and the humanity, beauty and dignity with which he rendered most of his subjects.

The Child’s Right to Basic Education in South Africa: The Importance of Reporting to the African Committee of Experts on the Rights and Welfare of the Child

The African Children’s Charter explicitly recognises the child’s right to education in Article 11(1). As South Africa is a party to the African Children’s Charter, periodic reports must be submitted by the state to the African Committee of Experts on the Rights and Welfare of the Child. These periodic reports play a valuable role in establishing the manner and extent to which state parties have fulfilled their obligations in terms of the African Children’s Charter. The accompanying Concluding Observations provided by the Committee serve a complementary role by identifying positive and negative aspects of the state parties’ reports and possible recommendations on how challenges could be addressed. This article centres on a discussion of the child’s right to basic education through the lens of South Africa’s obligations as imposed by the African Children’s Charter, by drawing a comparative analysis of the South African legal framework to Article 11 of the African Children’s Charter and by studying South Africa’s periodic reports. The question posed in the article centres on whether we are dealing with mere lip-service by state parties submitting periodic reports, rather than taking action and ensuring that their obligations are met in accordance with the African Children’s Charter. The value of the periodic reports and the committee’s accompanying Concluding Observations as a monitoring tool for measuring compliance with the African Children’s Charter is ultimately considered.

The relevance of the African regional human rights system in the urban age

AbstractIn an attempt to reassert the relevance of international human rights law in contemporary urban contexts, this article considers the extent to which the provisions of the African Charter on Human and Peoples’ Rights lend themselves to fruitful application in African cities, appropriation by African cities and the development of rights to African cities. The article ultimately argues that, despite the rural inclinations of its drafting context, certain textual shortcomings and the existence of major political hurdles to its effective implementation, the African Charter, as interpreted and applied by the African Commission and African Court on Human and Peoples’ Rights, is well-placed for the regional human rights system’s adaptation to the urban age.

A critique of the seizure criteria of the African Commission on Human and Peoples' Rights

Seizure of communication is an important stage in litigating before the African Commission on Human and Peoples' Rights. At this stage a complainant is required to disclose a prima facie case, in the absence of which the communication will be refused. The seizure criteria are contained in the African Commission's Rules of Procedure. However, the procedural rules are as important as the substantive rules. Where there are burdensome procedural rules in human rights litigation, it becomes more difficult to gain access to justice. The African Commission's Rules of Procedure 2020 guide the communication proceedings of the Commission. The 2020 Rules have introduced some salient provisions that hitherto were not contained in the Rules. Under the 2020 Rules the Secretary can seize a communication during inter-session on behalf of the African Commission. Efforts have also been made to fully separate admissibility criteria from seizure criteria by deleting the admissibility criteria contained under the seizure criteria in the previous Rules. Consequently, it no longer is a requirement for a communication to pass a preliminary test of the admissibility criteria at the seizure stage. Notwithstanding these changes, the African Commission still applied the jurisprudence of the previous Rules in African Freedom of Expression Exchange & 15 Others (represented by FOI Attorneys) v Algeria & 27 Others (FOI), where the Commission also set a higher prima facie standard. This article critiques the Commission's seizure criteria and procedure. It argues that the 2020 Rules have introduced novel provisions that would necessitate the Africn Commission to change its seizure jurisprudence. It recommends that the Commission should adopt the 'might' test at the seizure stage rather than the wide prima facie standard it adopted in FOI. In this way the African Commission would have the opportunity to receive more compelling evidence of violation of the African Charter at the merit stage, rather than shutting out communications at a stage where compelling proof is not required.

Overcoming challenges to the adjudication of election-related disputes at the African Commission on Human and Peoples' Rights: Perspectives from the Ngandu case

The African Commission on Human and Peoples' Rights is increasingly taking on the role of a regional electoral adjudication body in resolving election-related human rights violations. While this role is essential because of the contested nature of elections in Africa and the inability of many national election resolution mechanisms to sanction election irregularities, the African Commission must master the intricacies of election dispute resolution in member states for its recommendations to be based on sound legal principles. Its decision in the Ngandu case provides an opportunity to assess the nature of some of the challenges faced by the Commission when adjudicating election-related disputes and how to overcome these. In this decision, the African Commission found that the Democratic Republic of the Congo had violated the complainant's right to defence, to political participation and to work following the annulment of his election as a member of the National Assembly by the country's interim Constitutional Court (the Supreme Court of justice). The analysis of the case suggests that, despite the African Commission's ability to re-affirm the relevance of the right to political participation for the consolidation of democracy in Africa and protecting the right to a fair trial and to work, it must address three types of challenges in its role as election-adjudication body using the procedural mechanisms provided for in both the African Charter and the Rules of Procedure. These challenges are the knowledge of electoral justice systems operating in the DRC and Africa at large; the impossibility of restitution as a form of reparation; and the state's participation in proceedings and the implementation of recommendations.

The potential of litigating children's rights in the climate crisis before the African Committee of Experts on the Rights and Welfare of the Child

While human rights-based climate litigation has globally increased exponentially in the past few years, no cases related to the climate crisis have been filed before the regional African human rights bodies. The aim of this article is to systematically review the requirements for successful litigation before one of the African human rights bodies, namely, the African Committee of Experts on the Rights and Welfare of the Child. The article considers the potential for successful climate change litigation before the African Children's Committee based on the possible substantive rights arguments, the procedural challenges that may have to be overcome, and the potential remedies that may be granted by the African Children's Committee. It concludes that the Children's Committee is an important potential forum for child rights-based climate litigation, given that it provides strong substantive rights protection, including for the rights of future generations, broad and adaptable provisions on standing, and has a record of granting strong and transformative remedies.

Advancing Queer-inclusive International Human Rights Law Education in Nigerian Classrooms through Indigenous Storytelling: Stories from a Law Classroom at Eko (Lagos, Nigeria)

ABSTRACT This study grounds itself in contact theory and imagined contact theory to argue that contact and simulated/imagined contact with queerness contributes to the eradication of homophobic prejudices. Using international human rights soft law – the African Commission on Human and People’s Rights’ Resolution 275 on the protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity – for its persuasive effect, this study seeks to centre the importance of attitude-focused work in the advancement of queer rights as well as in the engagement with queer-inclusive soft law standards in Nigeria, and more specifically in Nigerian universities. Based on an empirical storytelling intervention conducted at the University of Lagos, this study seeks to demonstrate the potential of the joint use of indigenous storytelling and Resolution 275 as attitude-focused and empathy-driven advocacy tools for advancing queer rights in Nigeria, In doing so, the study contributes to reimagining soft law and queer rights advocacy in terms of pedagogies as well as queer Nigerian classrooms as sites for queer rights advocacy.

Traditional Medicine as Part of the Human Right to Health in the Democratic Republic of the Congo

Applicable law protecting the right to health in the Democratic Republic of the Congo (DRC) consists of ratified human rights treaties, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the African Charter on Human and Peoples’ Rights (African Charter), and domestic laws. However, none of these legal instruments explicitly mention traditional medicine (TM). Nevertheless, their provisions are broad enough to include TM. The Committee on Economic, Social, and Cultural Rights and the African Commission on Human and Peoples’ Rights have interpreted the right to health under the ICESCR and the African Charter to cover TM. Moreover, in implementing the right to health, the DRC has taken legislation, policies, and programs that regulate and protect TM. In addition to discouraging some bad practices associated with TM, regulation protects people from eventual violation of the right to health by Traditional Health Practitioners (THPs). Furthermore, the protection of medicinal natural resources contributes to the availability and accessibility of TM products. However, like in the colonial period, TM in the DRC continues to be marginalized compared to modern medicine. Therefore, several factors limit access to TM of good quality that is available and accessible. These include, among others, failure for public health facilities to provide TM, lack of provisions covering explicitly TM under the existing social security law, the absence of an adequate control mechanism, and the lack of appropriate criminal sanction regime.

Investigating the Responses of the African Commission on Human and Peoples’ Rights to the Criticisms of the African Charter

Investigating the Responses of the African Commission on Human and Peoples’ Rights to the Criticisms of the African Charter

Submission to the African Commission Working Group on Economic, Social and Cultural Rights on the Draft Study on the Right to Health and its Financing in Africa

Submission to the African Commission Working Group on Economic, Social and Cultural Rights on the Draft Study on the Right to Health and its Financing in Africa

A comprehensive reparations system for custodial deaths

Death in police custody is one of the major social injustices in Kenyan society today. While many continue to call for the criminal prosecution of police officers involved in such extrajudicial deaths, less is said about the human rights remedies available for the victims surviving the deceased. National, regional and international law provides for remedies for human rights violations in the form of reparations. The jurisprudence of Kenyan courts, the African Court on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights confirm that such victims are entitled to various forms of reparations. This paper analyses victimhood and the reparation systems in Kenya. The introduction briefly discusses death in police custody as a form of human rights violation. The paper then investigates the notion of a victim in national, regional and international law, with the aim of highlighting the scope of accruing human rights and the attached remedies. Consequently, the paper evaluates the Kenyan system of reparations available to victims in both national, regional, and international human rights law. This evaluation expounds on the forms of reparations available for victims of deaths in police custody. In concluding, this paper makes recommendations for victims and their families pursuing human rights remedies in addition to criminal sanctions against the police.