The african human rights court: A two-legged stool?

Human Rights Quarterly

Volumn 21, Issue 2, 1999, Pages 342-363

  Mutua, Makau ^a,b,c,d  

^a HARVARD LAW SCHOOL   (United States)

^b UNIVERSITY AT BUFFALO   (United States)

^c Kenya Human Rights Commission   (United States)

^d UNIVERSITY OF DAR ES SALAAM   (Tanzania)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; LEGISLATION; POLITICAL SYSTEM;

EID: 0032808756     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.1999.0027     Document Type: Article

References (149)

1. Draft Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights by the Assembly of Heads of State and Government of the Organization of African Unity, Conference of Ministers/ Attorneys General on the Establishment of an African Court on Human and Peoples' Rights, OAU/LEG/MIN/AFCHPR/PROT.(1)Rev.2 (1997) [hereinafter Protocol].
2. See Gino J. Naldi & Konstantinos Magliveras, Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples' Rights, 16 NETH. Q. HUM. RIS. 431 (1998); 2 U. OJI UMOZURIKE, THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS 92-93 (1997); Pursuit for Peace Remains Major Task of Africa: Salim, XINHUA News AGENCY, 8 June 1998, available in LEXIS, News Library, CURNWS File; International Conference on Human Rights Commission Opens in Addis, XINHUA NEWS AGENCY, 18 May 1998, available in LEXIS, News Library, CURNWS File. As expected, the Draft Protocol was adopted by the 1998 OAU summit in Ouagadougou, Burkina Faso. See Ghion Hagos, Africa at Large; Conference Adopts Protocol on African Human Rights Court, AFR. NEWS, 13 Dec. 1997, available in LEXIS, News Library, CURNWS File; Ghion Hagos, Africa at Large; Africa Human Rights Court on the Cards, AFR. NEWS, 11 Dec. 1997, available in LEXIS, News Library, CURNWS File.
3. See Gino J. Naldi & Konstantinos Magliveras, Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples' Rights, 16 NETH. Q. HUM. RIS. 431 (1998); 2 U. OJI UMOZURIKE, THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS 92-93 (1997); Pursuit for Peace Remains Major Task of Africa: Salim, XINHUA News AGENCY, 8 June 1998, available in LEXIS, News Library, CURNWS File; International Conference on Human Rights Commission Opens in Addis, XINHUA NEWS AGENCY, 18 May 1998, available in LEXIS, News Library, CURNWS File. As expected, the Draft Protocol was adopted by the 1998 OAU summit in Ouagadougou, Burkina Faso. See Ghion Hagos, Africa at Large; Conference Adopts Protocol on African Human Rights Court, AFR. NEWS, 13 Dec. 1997, available in LEXIS, News Library, CURNWS File; Ghion Hagos, Africa at Large; Africa Human Rights Court on the Cards, AFR. NEWS, 11 Dec. 1997, available in LEXIS, News Library, CURNWS File.
4. See Gino J. Naldi & Konstantinos Magliveras, Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples' Rights, 16 NETH. Q. HUM. RIS. 431 (1998); 2 U. OJI UMOZURIKE, THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS 92-93 (1997); Pursuit for Peace Remains Major Task of Africa: Salim, XINHUA News AGENCY, 8 June 1998, available in LEXIS, News Library, CURNWS File; International Conference on Human Rights Commission Opens in Addis, XINHUA NEWS AGENCY, 18 May 1998, available in LEXIS, News Library, CURNWS File. As expected, the Draft Protocol was adopted by the 1998 OAU summit in Ouagadougou, Burkina Faso. See Ghion Hagos, Africa at Large; Conference Adopts Protocol on African Human Rights Court, AFR. NEWS, 13 Dec. 1997, available in LEXIS, News Library, CURNWS File; Ghion Hagos, Africa at Large; Africa Human Rights Court on the Cards, AFR. NEWS, 11 Dec. 1997, available in LEXIS, News Library, CURNWS File.
5. See Gino J. Naldi & Konstantinos Magliveras, Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples' Rights, 16 NETH. Q. HUM. RIS. 431 (1998); 2 U. OJI UMOZURIKE, THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS 92-93 (1997); Pursuit for Peace Remains Major Task of Africa: Salim, XINHUA News AGENCY, 8 June 1998, available in LEXIS, News Library, CURNWS File; International Conference on Human Rights Commission Opens in Addis, XINHUA NEWS AGENCY, 18 May 1998, available in LEXIS, News Library, CURNWS File. As expected, the Draft Protocol was adopted by the 1998 OAU summit in Ouagadougou, Burkina Faso. See Ghion Hagos, Africa at Large; Conference Adopts Protocol on African Human Rights Court, AFR. NEWS, 13 Dec. 1997, available in LEXIS, News Library, CURNWS File; Ghion Hagos, Africa at Large; Africa Human Rights Court on the Cards, AFR. NEWS, 11 Dec. 1997, available in LEXIS, News Library, CURNWS File.
6. See Gino J. Naldi & Konstantinos Magliveras, Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples' Rights, 16 NETH. Q. HUM. RIS. 431 (1998); 2 U. OJI UMOZURIKE, THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS 92-93 (1997); Pursuit for Peace Remains Major Task of Africa: Salim, XINHUA News AGENCY, 8 June 1998, available in LEXIS, News Library, CURNWS File; International Conference on Human Rights Commission Opens in Addis, XINHUA NEWS AGENCY, 18 May 1998, available in LEXIS, News Library, CURNWS File. As expected, the Draft Protocol was adopted by the 1998 OAU summit in Ouagadougou, Burkina Faso. See Ghion Hagos, Africa at Large; Conference Adopts Protocol on African Human Rights Court, AFR. NEWS, 13 Dec. 1997, available in LEXIS, News Library, CURNWS File; Ghion Hagos, Africa at Large; Africa Human Rights Court on the Cards, AFR. NEWS, 11 Dec. 1997, available in LEXIS, News Library, CURNWS File.
7. See Gino J. Naldi & Konstantinos Magliveras, Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples' Rights, 16 NETH. Q. HUM. RIS. 431 (1998); 2 U. OJI UMOZURIKE, THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS 92-93 (1997); Pursuit for Peace Remains Major Task of Africa: Salim, XINHUA News AGENCY, 8 June 1998, available in LEXIS, News Library, CURNWS File; International Conference on Human Rights Commission Opens in Addis, XINHUA NEWS AGENCY, 18 May 1998, available in LEXIS, News Library, CURNWS File. As expected, the Draft Protocol was adopted by the 1998 OAU summit in Ouagadougou, Burkina Faso. See Ghion Hagos, Africa at Large; Conference Adopts Protocol on African Human Rights Court, AFR. NEWS, 13 Dec. 1997, available in LEXIS, News Library, CURNWS File; Ghion Hagos, Africa at Large; Africa Human Rights Court on the Cards, AFR. NEWS, 11 Dec. 1997, available in LEXIS, News Library, CURNWS File.
8. The Protocol is now open for signature following its adoption by the OAU. It shall come into force thirty days after ratification by fifteen OAU member states, a number that should be reached quickly. See Protocol, supra note 1, art. 34. The Protocol states in the preamble that the African Human Rights Court shall "complement and reinforce the functions of the African Commission on Human and Peoples' Rights." Protocol, supra note 1, pmbl. The Protocol continues to clarify and emphasize that the African Human Rights Court shall "complement the protective mandate of the African Commission on Human and Peoples' Rights." Protocol, supra note 1, art. 2.
9. The African Commission on Human and Peoples' Rights (African Commission) is the supervisory organ for the implementation of the African Charter on Human and Peoples' Rights. African Charter on Human and Peoples' Rights, adopted 26 June 1981, O.A.U. Doc. CAB/LEG/67/3/Rev.5 (entered into force 21 Oct. 1986), reprinted in 21 I.L.M. 58 (1982) [hereinafter African Charter]. The African Charter is also known as the Banjul Charter.
10. See Protocol, supra note 1, pmbl.
11. For discussions and analyses of the colonial imprint on the African post-colonial state, see MAHMOOD MAMDANI, CITIZEN AND SUBJECT: CONTEMPORARY AFRICA AND THE LEGACY OF LATE COLONIALISM (1996); Crawford Young, The Heritage of Colonialism, in AFRICA IN WORLD POLITICS 19 (John W. Harbeson & Donald Rothschild eds., 1991); Robert H. Jackson, Juridical Statehood in Sub-Saharan Africa, 46 J. INT'L AFF. 1 (1992); Ali A. Mazrui, The African State as a Political Refugee: Institutional Collapse and Human Displacement, 7 INT'L J. REFUGEE L. 21 (1995); and Makau wa Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16 MICH. J. INT'L L. 1113 (1995). Discussing Africa's colonial legacy, one author notes that the "most obvious and powerful expressions of the continued African conceptual reliance on European political forms are the African states themselves. The states are direct and uncritical successors of the colonies." Art Hansen, African Refugees: Defining and Defending Their Human Rights, in HUMAN RIGHTS AND GOVERNANCE IN AFRICA 139, 161 (Ronald Cohen et a), eds., 1993).
12. For discussions and analyses of the colonial imprint on the African post-colonial state, see MAHMOOD MAMDANI, CITIZEN AND SUBJECT: CONTEMPORARY AFRICA AND THE LEGACY OF LATE COLONIALISM (1996); Crawford Young, The Heritage of Colonialism, in AFRICA IN WORLD POLITICS 19 (John W. Harbeson & Donald Rothschild eds., 1991); Robert H. Jackson, Juridical Statehood in Sub-Saharan Africa, 46 J. INT'L AFF. 1 (1992); Ali A. Mazrui, The African State as a Political Refugee: Institutional Collapse and Human Displacement, 7 INT'L J. REFUGEE L. 21 (1995); and Makau wa Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16 MICH. J. INT'L L. 1113 (1995). Discussing Africa's colonial legacy, one author notes that the "most obvious and powerful expressions of the continued African conceptual reliance on European political forms are the African states themselves. The states are direct and uncritical successors of the colonies." Art Hansen, African Refugees: Defining and Defending Their Human Rights, in HUMAN RIGHTS AND GOVERNANCE IN AFRICA 139, 161 (Ronald Cohen et a), eds., 1993).
13. For discussions and analyses of the colonial imprint on the African post-colonial state, see MAHMOOD MAMDANI, CITIZEN AND SUBJECT: CONTEMPORARY AFRICA AND THE LEGACY OF LATE COLONIALISM (1996); Crawford Young, The Heritage of Colonialism, in AFRICA IN WORLD POLITICS 19 (John W. Harbeson & Donald Rothschild eds., 1991); Robert H. Jackson, Juridical Statehood in Sub-Saharan Africa, 46 J. INT'L AFF. 1 (1992); Ali A. Mazrui, The African State as a Political Refugee: Institutional Collapse and Human Displacement, 7 INT'L J. REFUGEE L. 21 (1995); and Makau wa Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16 MICH. J. INT'L L. 1113 (1995). Discussing Africa's colonial legacy, one author notes that the "most obvious and powerful expressions of the continued African conceptual reliance on European political forms are the African states themselves. The states are direct and uncritical successors of the colonies." Art Hansen, African Refugees: Defining and Defending Their Human Rights, in HUMAN RIGHTS AND GOVERNANCE IN AFRICA 139, 161 (Ronald Cohen et a), eds., 1993).
14. For discussions and analyses of the colonial imprint on the African post-colonial state, see MAHMOOD MAMDANI, CITIZEN AND SUBJECT: CONTEMPORARY AFRICA AND THE LEGACY OF LATE COLONIALISM (1996); Crawford Young, The Heritage of Colonialism, in AFRICA IN WORLD POLITICS 19 (John W. Harbeson & Donald Rothschild eds., 1991); Robert H. Jackson, Juridical Statehood in Sub-Saharan Africa, 46 J. INT'L AFF. 1 (1992); Ali A. Mazrui, The African State as a Political Refugee: Institutional Collapse and Human Displacement, 7 INT'L J. REFUGEE L. 21 (1995); and Makau wa Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16 MICH. J. INT'L L. 1113 (1995). Discussing Africa's colonial legacy, one author notes that the "most obvious and powerful expressions of the continued African conceptual reliance on European political forms are the African states themselves. The states are direct and uncritical successors of the colonies." Art Hansen, African Refugees: Defining and Defending Their Human Rights, in HUMAN RIGHTS AND GOVERNANCE IN AFRICA 139, 161 (Ronald Cohen et a), eds., 1993).
15. For discussions and analyses of the colonial imprint on the African post-colonial state, see MAHMOOD MAMDANI, CITIZEN AND SUBJECT: CONTEMPORARY AFRICA AND THE LEGACY OF LATE COLONIALISM (1996); Crawford Young, The Heritage of Colonialism, in AFRICA IN WORLD POLITICS 19 (John W. Harbeson & Donald Rothschild eds., 1991); Robert H. Jackson, Juridical Statehood in Sub-Saharan Africa, 46 J. INT'L AFF. 1 (1992); Ali A. Mazrui, The African State as a Political Refugee: Institutional Collapse and Human Displacement, 7 INT'L J. REFUGEE L. 21 (1995); and Makau wa Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16 MICH. J. INT'L L. 1113 (1995). Discussing Africa's colonial legacy, one author notes that the "most obvious and powerful expressions of the continued African conceptual reliance on European political forms are the African states themselves. The states are direct and uncritical successors of the colonies." Art Hansen, African Refugees: Defining and Defending Their Human Rights, in HUMAN RIGHTS AND GOVERNANCE IN AFRICA 139, 161 (Ronald Cohen et a), eds., 1993).
16. For discussions and analyses of the colonial imprint on the African post-colonial state, see MAHMOOD MAMDANI, CITIZEN AND SUBJECT: CONTEMPORARY AFRICA AND THE LEGACY OF LATE COLONIALISM (1996); Crawford Young, The Heritage of Colonialism, in AFRICA IN WORLD POLITICS 19 (John W. Harbeson & Donald Rothschild eds., 1991); Robert H. Jackson, Juridical Statehood in Sub-Saharan Africa, 46 J. INT'L AFF. 1 (1992); Ali A. Mazrui, The African State as a Political Refugee: Institutional Collapse and Human Displacement, 7 INT'L J. REFUGEE L. 21 (1995); and Makau wa Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16 MICH. J. INT'L L. 1113 (1995). Discussing Africa's colonial legacy, one author notes that the "most obvious and powerful expressions of the continued African conceptual reliance on European political forms are the African states themselves. The states are direct and uncritical successors of the colonies." Art Hansen, African Refugees: Defining and Defending Their Human Rights, in HUMAN RIGHTS AND GOVERNANCE IN AFRICA 139, 161 (Ronald Cohen et a), eds., 1993).
17. Peoples' rights, along with rights to environment and group rights, are known as third-generation rights. Civil and political rights are considered first-generation rights, and social, economic, and cultural rights are considered second-generation rights.
18. On duties on the individual, see African Charter, supra note 4, at arts. 27-29. For a discussion of the concept of duties in human rights discourse and the African Charter, see Makau wa Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 VA. J. INT'L L. 339 (1995). See also 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, 6 HUM. RTS. Q. 141 (1984); Josiah A.M. Cobbah, African Values and the Human Rights Debate: An African Perspective, 9 HUM. RTS. Q. 309 (1987).
19. On duties on the individual, see African Charter, supra note 4, at arts. 27-29. For a discussion of the concept of duties in human rights discourse and the African Charter, see Makau wa Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 VA. J. INT'L L. 339 (1995). See also 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, 6 HUM. RTS. Q. 141 (1984); Josiah A.M. Cobbah, African Values and the Human Rights Debate: An African Perspective, 9 HUM. RTS. Q. 309 (1987).
20. On duties on the individual, see African Charter, supra note 4, at arts. 27-29. For a discussion of the concept of duties in human rights discourse and the African Charter, see Makau wa Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 VA. J. INT'L L. 339 (1995). See also 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, 6 HUM. RTS. Q. 141 (1984); Josiah A.M. Cobbah, African Values and the Human Rights Debate: An African Perspective, 9 HUM. RTS. Q. 309 (1987).
21. For discussions of these problems, see Richard Gittleman, The African Charter on Human and Peoples' Rights: A Legal Analysis, 22 VA. J. INT'L L. 667 (1982); Richard Gittleman, The African Commission on Human and Peoples' Rights: Prospects and Procedures, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 153 (Hurst Hannum ed., 1984); Cees Flinterman & Evelyn Ankumah, The African Charter on Human and Peoples' Rights, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 159 (Hurst Hannum ed., 2d ed. 1992).
22. For discussions of these problems, see Richard Gittleman, The African Charter on Human and Peoples' Rights: A Legal Analysis, 22 VA. J. INT'L L. 667 (1982); Richard Gittleman, The African Commission on Human and Peoples' Rights: Prospects and Procedures, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 153 (Hurst Hannum ed., 1984); Cees Flinterman & Evelyn Ankumah, The African Charter on Human and Peoples' Rights, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 159 (Hurst Hannum ed., 2d ed. 1992).
23. For discussions of these problems, see Richard Gittleman, The African Charter on Human and Peoples' Rights: A Legal Analysis, 22 VA. J. INT'L L. 667 (1982); Richard Gittleman, The African Commission on Human and Peoples' Rights: Prospects and Procedures, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 153 (Hurst Hannum ed., 1984); Cees Flinterman & Evelyn Ankumah, The African Charter on Human and Peoples' Rights, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 159 (Hurst Hannum ed., 2d ed. 1992).
24. See Makau wa Mutua, African Renaissance, N.Y. TIMES, 11 May 1991, at L23 (describing the demands by Africans for political democracy); HUMAN RIGHTS WATCH, HUMAN RIGHTS WATCH WORLD REPORT 1993, at 6-9 (1992) (reporting Africa's political upheavals, including those related to demands for political reforms and democracy).
25. See Makau wa Mutua, African Renaissance, N.Y. TIMES, 11 May 1991, at L23 (describing the demands by Africans for political democracy); HUMAN RIGHTS WATCH, HUMAN RIGHTS WATCH WORLD REPORT 1993, at 6-9 (1992) (reporting Africa's political upheavals, including those related to demands for political reforms and democracy).
26. See Makau wa Mutua, The African Human Rights System in a Comparative Perspective, AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS, 3 REV. AFR. COMM'N ON HUM. & PEOPLES' RTS. 5 (1993).
27. See African Charter, supra note 4, art. 45, which sets out the functions of the African Commission.
28. Id. (providing largely for promotional, not protective, functions of the Commission).
29. See id. art. 45(1).
30. See id. art. 45(3). This role, which allows the Commission to interpret the Charter, is potentially one of the areas that the commissioners could seize upon to expound and clarify the Charter.
31. Id. art. 45(2).
32. See id. art. 62. States parties must submit, every two years, a report on the legislative and other measures taken to give effect to rights in the African Charter. Id.
33. See id. arts. 47, 55. The Charter permits two types of communications: from individuals, NGOs, and groups, on the one hand, and inter-state communications, on the other. The latter has never been invoked and will not concern this article. Id.
34. See id. art. 45(3).
35. See Philip Alston, Critical Appraisal of the UN Human Rights Regime, in THE UNITED NATIONS AND HUMAN RIGHTS: A CRITICAL APPRAISAL 1 (Philip Alston ed., 1992). See generally THOMAS BUERGENTHAL, INTERNATIONAL HUMAN RIGHTS: IN A NUTSHELL 21-247 (2d. ed. 1995) (describing UN Charter-based and treaty-based human rights instruments and bodies, as well as the African, Inter-American, and European human rights systems).
36. See Philip Alston, Critical Appraisal of the UN Human Rights Regime, in THE UNITED NATIONS AND HUMAN RIGHTS: A CRITICAL APPRAISAL 1 (Philip Alston ed., 1992). See generally THOMAS BUERGENTHAL, INTERNATIONAL HUMAN RIGHTS: IN A NUTSHELL 21-247 (2d. ed. 1995) (describing UN Charter-based and treaty-based human rights instruments and bodies, as well as the African, Inter-American, and European human rights systems).
37. The Human Rights Committee is the treaty body that oversees the implementation of the International Covenant on Civil and Political Rights (ICCPR). International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976).
38. Revised Rules of Procedure of the African Commission on Human and Peoples' Rights, adopted 6 Oct. 1995, reprinted in 18 HUM. RTS. L.J. 154 (1997) [hereinafter Rules of Procedure].
39. Guidelines for National Periodic Reports, Second Annual Activity Report of the African Commission on Human and Peoples' Rights, Annex III, AFR/COM/HPR.5(VI)(1989) [hereinafter Reporting Guidelines].
40. See ASTRID DANIELSEN, THE STATE REPORTING PROCEDURE UNDER THE AFRICAN CHARTER 51-52 (1994); EVELYN A. ANKUMAH, THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS: PRACTICE AND PROCEDURES 82-83 (1996).
41. See ASTRID DANIELSEN, THE STATE REPORTING PROCEDURE UNDER THE AFRICAN CHARTER 51-52 (1994); EVELYN A. ANKUMAH, THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS: PRACTICE AND PROCEDURES 82-83 (1996).
42. The African Charter requires that the Commission "cooperate" with African and international NGOs in its work. African Charter, supra note 4, art. 45(1)(a) & (c). Thus the Commission grants human rights NGOs observer status which allows their representatives to participate in the public sessions of the Commission. See Rules of Procedure, supra note 22, rule 75.
43. See African Charter, supra note 4, art. 55.
44. "Communication" is usually used as a euphemism for "complaint" by the international human rights bodies.
45. See African Charter, supra note 4, art. 56.
46. See Rules of Procedure, supra note 22, rule 106. The Commission, which makes its own rules of procedure, may justify closed sessions for communications under Article 59 of the Charter which provides, in part, that "[a]ll measures taken within the provisions of the present Chapter [sic] shall remain confidential" until the OAU decides otherwise. African Charter, supra note 4, art. 59. But this provision is overbroad and vague. A literal interpretation of "all measures" would be absurd. Perhaps the Commission could open at least part, if not all, of the communications processes to the public.
47. African Charter, supra note 4, art. 58(1) & (2).
48. See id. art. 58(3).
49. Id. art. 46.
50. See Final Communique: 17th Ordinary Session of the African Commission on Human and Peoples' Rights, 12-22 Mar. 1995, Lome, Togo, available in ; ANKUMAH, supra note 24, at 42.
51. Because the Commission did not carry out investigations from 1987 until 1995, it seems to have been reluctant to do so.
52. See Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), reprinted in 6 I.L.M. 383 (1967) (detailing the HRC's formula for considering individual communications).
53. Communication 60/91, Afr. Comm'n Hum. Peoples' Rts., AHC/Res. 240 (XXXI)(1995), reprinted in 18 HUM. RTS. L.J. 28 (1997).
54. See id.
55. Communication 129/94, Afr. Comm'n Hum. Peoples' Rts., AHG/Res.250 (XXXII)(1996), reprinted in 18 HUM. RTS. L.J. 35, 36 (1997).
56. Chidi Anselm Odinkalu & Camilla Christensen, The African Commission on Human and Peoples' Rights: The Development of its Non-State Communication Procedures, 20 HUM. RTS. Q. 235, 277 (1998) (footnotes omitted).
57. Id. at 278.
58. The Charter provides that all "measures taken within the provisions of the present Charter shall remain confidential until such a time as the Assembly of Heads of State and Government shall otherwise decide." African Charter, supra note 4, art. 59(1).
59. See Communications 16/88, 17/88, 18/88 Comite Culturel pour la Democratie au Benin, Hilaire Badjogoume, El Hadj Boubacare Diawara v. Benin (merits), Afr. Comm'n Hum. Peoples' Rts., ¶ 35 (1994), reprinted in Odinkalu & Christensen, supra note 36, at 244 n.51 (noting, inter alia, that "[i]t is the primary objective of the Commission in the Communications procedure to initiate a dialogue between the parties which will result in an amicable settlement to the satisfaction of both and which remedies the prejudice complained of").
60. See AFRICAN SOCIETY OF INTERNATIONAL AND COMPARATIVE LAW, REPORT ON THE 16TH SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS 62-83 (1996) for more communications by the Commission. For a very thoughtful analysis of the communications procedure before the African Commission, see Odinkalu & Christensen, supra note 36.
61. African Charter, supra note 4, art. 62.
62. Id.
63. See Felice D. Gaer, First Fruits: Reporting By States Under the African Charter on Human and Peoples' Rights, 10 NETH. Q. HUM. RTS. 29 (1992), for an evaluation of the initial state reporting under the African Charter.
64. Id.
65. See id.
66. See generally ANKUMAH, supra note 24, at 79-110.
67. See id. at 91-92.
68. See id.
69. See Rules of Procedure, supra note 22, rules 81-87.
70. See Mohamed Komeja, The African System of Human and Peoples' Rights: an Annotated Bibliography, 3 E. AFR. J. PEACE & HUM. RTS. 262, 274-75 (1996).
71. See ANKUMAH, supra note 24, at 99.
72. See Rachel Murray, Report on the 1996 Sessions of the African Commission on Human and Peoples' Rights, 19th and 20th Ordinary Sessions, 26 March-4 April, and 21-31 October 1996, 18 HUM. Ris. L.J. 16, 18 (1997).
73. See id.
74. See AFRICAN SOCIETY OF INTERNATIONAL AND COMPARATIVE LAW, supra note 40, at 89-90.
75. See id. at 95.
76. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. CAOR 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985) (entered into force 26 June 1987), reprinted in 23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985).
77. See Mutua, supra note 10, at 10; Komeja, supra note 51, at 277.
78. See Mutua, supra note 10, at 10.
79. See ANKUMAH, supra note 24, at 194-95.
80. See id.
81. See id.
82. See id.
83. See id.
84. See id. at 195.
85. 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, 9 AFR. J. INT'L & COMP. L. 943, 943 n.1 (1997).
86. See id. at 944.
87. See Report of Government Experts Meeting on the Establishment of an African Court of Human and Peoples' Rights, September 6-12, 1995, Cape Town, South Africa, OAU/ LEG/EXP/AFCHPR/RPT(1)Rev.1, cited in id. at 944 n.2.
88. See International Conference on Human Rights Commission Opens in Addis, supra note 2.
89. See Pursuit for Peace Remains Major Task of Africa: Salim, supra note 2.
90. Talks Open in Addis on Establishing African Human Rights Court, DEUTSCHE PRESSEAGENTUR, 12 Dec. 1997, available in LEXIS, News Library, CURNWS File (quoting Salim Ahmed Salim, the OAU Secretary General, at the adoption of the Draft Protocol in December 1997).
91. For analyses of some normative and structural problems of the African human rights system, see Gittleman, supra note 9; Flinterman & Ankumah, supra note 9; Olusola Ojo & Amadu Sessay, The OAU and Human Rights: Prospects for the 1980s and Beyond, 8 HUM. RTS. Q. 89 (1986); and ANKUMAH, supra note 24.
92. The Protocol realizes this contrast - in essence the weaknesses and the incompleteness of the African Commission - when its states in its preamble that the African Human Rights Court will "complement and reinforce the functions of the African Commission on Human and Peoples' Rights." Protocol, supra note 1, pmbl. The Protocol adds that the African Human Rights Cpurt shall "complement the protective mandate of the African Commission." Id. art. 2.
93. See African Charter, supra note 4, art. 62.
94. See id. at arts. 55, 56. These include state-to-state and "other" communications, which could come from individuals, groups, and organizations. Id.
95. See id. art. 45. The principal activities of the African Charter, which are promotional, are to collect documents, undertake studies, organize seminars, disseminate information, encourage national and local institutions concerned with human rights, formulate principles to resolve human rights problems, and interpret the African Charter. Id.
96. See, e.g., Mutua, supra note 8; HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 700-704 (1996).
97. See Protocol, supra note 1, art. 3(1) (extending the Court's jurisdiction to the African Charter "and any other relevant Human Rights instrument...").
98. Id.
99. Id. art. 7.
100. See id. art. 3(2).
101. Id. art. 9 Article 9 allows the court to attempt the "amicable settlement" of disputes. Id.
102. Id art. 4(1).
103. See id.
104. See id. arts. 5(1), 5(2).
105. See id. art. 5(3) (providing that the "[c]ourt may entitle relevant Non Governmental Organizations (NGOs) with observer status before the [African] Commission, and individuals to institute cases directly before it") (emphasis added).
106. See id. arts. 5(3), 34(6).
107. Ambassador Badawi, a member of the African Commission and its former chair, alludes to this when he notes that "[t]he question of allowing NGOs and individuals to submit cases to the Court was one of the most complicated issues during the consideration of the Draft Protocol." Badawi El-Sheikh, supra note 68, at 947.
108. See Protocol, supra note 1, art. 6(1).
109. See id. art. 6(2). See African Charter, supra note 4, art. 56, for a list of the requirements that communications before the African Commission must consider it.
110. See Protocol, supra note 1, art. 6(3).
111. See id. art. 33.
112. See id. art. 10(1),(2). Free legal representation may also be provided where the "interests of justice so require." Id. art. 10(2).
113. Id art. 10(3).
114. Id. art. 11(1).
115. See id. art. 15 (1).
116. See id. art. 15(4).
117. See id. art. 17.
118. See id. art. 19.
119. See id. art. 22.
120. See id. art. 24.
121. See Protocol, supra note 1, art. 3(2).
122. See id art. 26.
123. See id art. 26(1).
124. Id art. 27(1).
125. Id art. 27(2).
126. See id. art. 28(2).
127. See id. art. 30 (providing, in part, that states "undertake to comply with the judgment in any case in which they are parties within the time stipulated by the Court and to guarantee its execution") (emphasis added).
128. See Id art. 31.
129. See Id art. 29(1).
130. See Mutua, supra note 10, at 7.
131. Id. at 7.
132. See Arthur E. Anthony, Beyond the Paper Tiger: The Challenge of a Human Rights Court in Africa, 32 TEX. INT'L L.J. 511, 518 (1997).
133. BUERGENTHAL, supra note 19, at 233-34.
134. For discussions of the African Charter's view on women, see Claude E. Welch, Jr., Human Rights and African Women: A Comparison of Protection under Two Major Treaties, 15 HUM. RTS. Q. 549 (1993); Florence Butegwa, Using the African Charter on Human and Peoples' Rights to Secure Women's Access to Land in Africa, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 495 (Rebecca Cook ed., 1994); Chaloka Beyani, Toward a More Effective Guarantee of Women's Rights in the African Human Rights System, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 285 (Rebecca Cook, ed. 1994; J. Oloka-Onyango, The Plight of the Larger Half: Human Rights, Gender Violence and the Legal Status of Refugee and Internally Displaced Women in Africa, 24 DENV. J. INT'L L. & POL'Y 349, 371-74 (1996).
135. For discussions of the African Charter's view on women, see Claude E. Welch, Jr., Human Rights and African Women: A Comparison of Protection under Two Major Treaties, 15 HUM. RTS. Q. 549 (1993); Florence Butegwa, Using the African Charter on Human and Peoples' Rights to Secure Women's Access to Land in Africa, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 495 (Rebecca Cook ed., 1994); Chaloka Beyani, Toward a More Effective Guarantee of Women's Rights in the African Human Rights System, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 285 (Rebecca Cook, ed. 1994; J. Oloka-Onyango, The Plight of the Larger Half: Human Rights, Gender Violence and the Legal Status of Refugee and Internally Displaced Women in Africa, 24 DENV. J. INT'L L. & POL'Y 349, 371-74 (1996).
136. For discussions of the African Charter's view on women, see Claude E. Welch, Jr., Human Rights and African Women: A Comparison of Protection under Two Major Treaties, 15 HUM. RTS. Q. 549 (1993); Florence Butegwa, Using the African Charter on Human and Peoples' Rights to Secure Women's Access to Land in Africa, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 495 (Rebecca Cook ed., 1994); Chaloka Beyani, Toward a More Effective Guarantee of Women's Rights in the African Human Rights System, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 285 (Rebecca Cook, ed. 1994; J. Oloka-Onyango, The Plight of the Larger Half: Human Rights, Gender Violence and the Legal Status of Refugee and Internally Displaced Women in Africa, 24 DENV. J. INT'L L. & POL'Y 349, 371-74 (1996).
137. For discussions of the African Charter's view on women, see Claude E. Welch, Jr., Human Rights and African Women: A Comparison of Protection under Two Major Treaties, 15 HUM. RTS. Q. 549 (1993); Florence Butegwa, Using the African Charter on Human and Peoples' Rights to Secure Women's Access to Land in Africa, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 495 (Rebecca Cook ed., 1994); Chaloka Beyani, Toward a More Effective Guarantee of Women's Rights in the African Human Rights System, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 285 (Rebecca Cook, ed. 1994; J. Oloka-Onyango, The Plight of the Larger Half: Human Rights, Gender Violence and the Legal Status of Refugee and Internally Displaced Women in Africa, 24 DENV. J. INT'L L. & POL'Y 349, 371-74 (1996).
138. See African Charter, supra note 4, art. 18 (referring to the family as the "natural unit and basis of society" and requiring the state to "assist the family which is the custodian of morals and traditional values recognized by the community"). Elsewhere, the Charter provides that the individual owes "duties towards his family and society." Id. art. 27(1). Further, the African Charter states that every individual has the duty to "preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need." Id. art. 29(1).
139. See Mutua, supra note 8, at 371-72 (footnote omitted).
140. See id. at 371.
141. See Mutua, supra note 10, at 372 (footnote omitted). The Charter states that the "state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions." African Charter, supra note 4, art. 18(3). The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is among the international conventions that would be applicable here. Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GOAR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/36 (1980) (entered into force 3 Sept. 1981), reprinted in 19 I.L.M. 33 (1980). Normatively, the CEDAW is perceived as a very progressive and forward-looking document.
142. There already have been calls for a protocol on women's rights. See Murray, supra note 48, at 16, 19.
143. At a recent meeting, NGOs and members of the African Commission started a dialogue on possible amendments and revisions to the African Charter. These included women's rights, "clawback" clauses, and derogation of rights. See id. at 19.
144. See Henry J. Steiner, Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?, in THE FUTURE OF UN HUMAN RIGHTS TREATY MONITORISO (Philip Alston & James Crawford eds., forthcoming 1999) (see text at the beginning of section entitled "Purposes of Adjudication").
145. ICCPR, supra note 21.
146. Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21 Sess., Supp. No. 16, at arts. 1, 2, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), reprinted in 6 I.L.M. 383 (1967).
147. For statistics on the twenty years since the HRC communications procedure became effective under the Optional Protocol, see Report of the Human Rights Committee to the General Assembly: Official Records, U.N.GAOR, 52nd Sess., Supp. No. 40, section VII(A), at 74, U.N. Doc A/52/40, Vol.1 (1997).
148. See generally Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 YALE L.J. 273, 298-337 (1997).
149. Id. at 298-337.