Abstract
The regional Mrican human rights system is based on the Mrican Charter on Human and Peoples’ Rights (the Mricanor Banjul Charter)1 which entered into force on October 21, 1986, upon ratification by a simple majority of member states of the Organization of Mrican Unity (OAU).2 In June 1998 the OAU adopted the Protocol to the Mrican Charter on Human and Peoples’ Rights on the Establishment of an Mrican Court on Human and Peoples’ Rights.3 The Mrican Human Rights Court is intended to complement4 the Mrican Commission on Human and Peoples’ Rights, the body that has exercised continental oversight over human rights since 1987.5 The Protocol suggests that the Mrican Human Rights Court will make the promotion and the protection of human rights within the regional system more effective.6 But the mere addition of a court, although a significant development, is unlikely by itself to address sufficiently the normative and structural weaknesses that have plagued the Mrican human rights system since its inception.
This chapter draws heavily upon my article “The African Human Rights Court: a Two-Legged Stool?” Human Rights Quarterly Vol 21, No.2 (1999), pp. 342–63, ©The Johns Hopkins University Press. Used by permission of The Johns Hopkins University Press.
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Notes
For discussions and analyses of the colonial imprint on the African postcolonial state, see Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press, 1996)
Crawford Young, “The Heritage of Colonialism,” in John W. Harbeson and Donald Rothschild, eds., Africa in World Politics (Boulder, CO: Westview Press, 1991), p. 19
Robert H. Jackson, “Juridical Statehood in Sub-Saharan Africa,” Journal of International Affairs, Vol. 1 (1992), p. 46
Makauwa Mutua, “Why Redraw the Map of Africa: a Moral and Legal Inquiry,” Michigan Journal of International Law, Vol. 16 (1995), p. 1113.
On duties of the individual, see African Charter, arts. 27–29. For a discussion of the concept of duties in human rights discourse and the African Charter, see Makauwa Mutua, “The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties,” Virginia Journal of International Law, Vol. 25 (1995), p. 339.
For discussions of these problems, see Richard Gittleman, “The African Charter on Human and Peoples’ Rights: A Legal Analysis,” Virginia Journal of International Law, Vol. 22 (1982), p. 667
Richard Gittleman, “The African Commission on Human and Peoples’ Rights: Prospects and Procedures,” in Hurst Hannum, ed., Guide to International Human Rights Practice (Philadelphia: University of Pennsylvania Press, 1984), p. 153
See Makauwa Mutua, “The African Human Rights System in a Comparative Perspective,” Review of the African Commission on Human and Peoples’ Rights, Vol. 3 (1993), pp. 5
For analyses of some normative and structural problems of the African human rights system, see Richard Gittleman, “The African Charter on Human and Peoples’ Rights: A Legal Analysis,” Virginia Journal of International Law, Vol. 22 (1982), p. 667
Olosula Ojo and Amadu Sessay, “The OAU and Human Rights: Prospects for the 1980s and Beyond,” Human Rights Quarterly, Vol. 16 (1994), p. 8
Evelyn Ankumah, The African Commission on Human and Peoples’ Rights: Practice and Procedures (Boston: M. Nijhoff, 1996)
B. Obinna Okere, “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,” Human Rights Quarterly, Vol. 6 (1984), p. 141
Josiah Cobbah, “African Values and the Human Rights Debate: An African Perspective,” Human Rights Quarterly, Vol. 9 (1987), p. 309
Arthur E. Anthony, “Beyond the Paper Tiger: the Challenge of a Human Rights Court in Africa,” Texas International Law Journal, Vol. 32 (1997), pp. 511
See Thomas Buergenthal, International Human Rights in a Nutshell (St. Paul, MN: West Publishing, 1995), pp. 233–34.
For discussions of the Charter’s view on women, see Claude E. Welch, Jr., “Human Rights and African Women: A Comparison of Protection under Two Major Treaties,” Human Rights Quarterly, Vol. 15 (1993), p. 548
Florence Butegwa, “Using the African Charter on Human and Peoples’ Rights to Secure Women’s Access to Land in Africa,” in Rebecca Cook, ed., Human Rights of Women: National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994), p. 495
There already have been calls for a protocol on women’s rights. See Rachel Murray, “Report of the 1996 Sessions of the African Commission on Human and Peoples’ Rights,” Human Rights Law Journal, Vol. 18 (1997), pp. 16
See Philip Alston, “Appraising the Human Rights Regime,” in Philip Alston, ed., The United Nations and Human Rights: a Critical Appraisal (New York: Oxford University Press, 1992), p. 1
Astrid Danielsen, The State Reporting Procedure Under the African Commission (Copenhagen: Danish Centre for Human Rights, 1994), pp. 51–52
Chidi Anselm Odinkalu and Camilla Christensen, “The African Commission on Human and Peoples’ Rights: The Development of its Non-state Communications Procedures,” Human Rights Quarterly, Vol. 20 (1998), pp. 235
See Felice D. Gaer, “First Fruits: Reporting by States Under the African Charter on Human and Peoples’ Rights,” Netherlands Human Rights Quarterly, Vol. 10 (1992), p. 29
Mohamed Komeja, “The African System of Human and Peoples’ Rights: An Annotated Bibliography,” East African Journal of Peace and Human Rights, Vol. 3 (1996), pp. 271
Rachel Murray, “Report of the 1996 Sessions of the African Commission on Human and Peoples’ Rights,” Human Rights Law Journal, Vol. 18 (1997), p. 16.
See Report of Government Experts Meeting, AHG/Res 230(xxx), 30th Ordinary Session of the Assembly of Heads of State and Government, Tunis, Tunisia, June 1994, cited in Ibrahim Ali Badawi El-Sheikh, “Draft Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights: Introductory Note,” African Journal of International and Comparative Law, Vol. 9 (1997), pp. 943
See Henry J. Steiner, “Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?” in Philip Alston and J. Crawford, eds., The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, forthcoming 2000).
See generally Laurence R. Heifer and Anne-Marie Slaughter, “Towards a Theory of Effective Supranational Adjudication,” Yale Law Journal, Vol. 107 (1997), p. 273.
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© 2000 Samantha Power and Graham Allison
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Mutua, M. (2000). The Construction of the African Human Rights System: Prospects and Pitfalls. In: Power, S., Allison, G. (eds) Realizing Human Rights. Palgrave Macmillan, New York. https://doi.org/10.1007/978-1-137-03608-7_7
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