Developments in the African Human Rights System 2003-04

Human Rights Law Review

Volumn 6, Issue 1, 2006, Pages 160-175

  Murray, Rachel ^a  

^a UNIVERSITY OF BRISTOL   (United Kingdom)

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[No Author keywords available]

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EID: 33645576115     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngi031     Document Type: Article

References (66)

1. Assembly/AU/Dec.56(IV).
2. Other developments were the adoption of the Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa, 17th Annual Activity Report, Annex IV; the establishment of a Follow Up Committee on Implementation of the Robben Island Guidelines; and the replacement of the Focal Points on Human Rights Defenders, Freedom of Expression and Implementation of the Robben Island Guidelines by Special Rapporteurs (Commissioners Johm, Chigovera and Monageng, respectively) on these subjects. The other, pre-existing, Special Rapporteurs are the Special Rapporteur on Arbitrary, Summary and Extra Judicial Executions; the Special Rapporteur on Prisons and Other Conditions of Detention; and the Special Rapporteur on the Rights of Women in Africa. See Evans and Murray, 'The Special Rapporteurs in the African System', in Evans and Murray (eds), The African Charter on Human and Peoples' Rights: The System in Practice, 1986-2000 (Cambridge: Cambridge University Press, 2002) 280.
3. For the text of the paper see: http://www.iwgia.org.
4. Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities, 2005, at 89.
5. Comments made at the 37th session of the African Commission on Human and Peoples' Rights, 27 April-11 May 2005.
6. th Annual Report, supra n. 1, Annex IV. The Memorandum of Understanding was concluded between the Commission and UNHCR in May 2003.
7. 1 UNTS 45. There are currently 41 states parties.
8. The report on the mission to Sudan, for example, did not appear until several years after it was undertaken.
9. th Annual Report, supra n. 1. at 14.
10. Other cases adopted by the Commission in its 17th Report are: 199/97, Odjouoriby Cossi Paul v Benin 12 IHRR 878 (2005)
11. 242/2001, Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l'Homme v Mauritania 12 IHRR 881 (2005)
12. 250/2002, Liesbeth Zegveld and Mussie Ephrem v Eritrea 12 IHRR 863 (2005)
13. 248/2002, Interights and OM v Nigeria;
14. 256/2002, Samuel Kofi Woods, II and Kabineh M. Ja'neh v Liberia;
15. 258/2002, Miss A v Cameroon;
16. 283/2003, B v Kenya;
17. and 197/1997, Bah Ould Rabah v Mauritania 12 IHRR 872 (2005). The last of these, which concerned the consequences of slavery in Mauritania, is of interest as the first in which the Commission has permitted one of its members to give a dissenting opinion.
18. 12 IHRR 847 (2005). The case also referred to Ethiopia in the imposition of the embargo, but it is not clear whether it was named as one of the original parties in the case or not. The Commission simply notes in para. 2 of its decision that Ethiopia was not a party, unlike the other states, to the ACHPR at the time the case was submitted. Ethiopia does not, therefore, appear in the title of the communication. However, the Commission mentions in the body of the case that: 49. ...although Ethiopia was a party to the case, it had never received notification of the communication. 50. The Commission therefore asked the Secretariat to check whether Ethiopia had ratified the African Charter at the time the decision on the embargo was taken. 51. If it had, the Secretariat should then send notification of the communication opposing that embargo and ask for its comments and observations on the issue. 52. Given that Ethiopia ratified the African Charter two years after the decision to impose the embargo on Burundi was taken, the Secretariat of the Commission did not send a copy of the case file to Ethiopia for notification....
19. The text of the decision refers to a 'calls action', but this would appear to be a misprint.
20. Para. 63, supra n. 11.
21. See, for example, 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria 15th Annual Activity Report of the ACHPR (2002) Annex V; 10 IHRR 282 (2003).
22. Para. 65, supra n. 11.
23. See the case before the European Court of Human Rights against the UK alleging violations of the right to life with respect to the British Government's sinking of the General Belgrano during the conflict between Argentina and the UK in 1982. Here the complainants took proceedings in Argentinean courts and the European Court of Human Rights ruled that these were not domestic remedies within the United Kingdom. See Luisa Diamantina Romero de Ibanez and Roberto Guillermo Rojas v United Kingdom, Admissibility Decision of 19 July 2000, Application No. 58692/ 00.
24. Para. 66, supra n. 11.
25. Paras 72-3, ibid.
26. Committee on Economic, Social and Cultural Rights, General Comment No. 8, 12 December 1997, E/C.12/1997/8; 5 IHRR 302 (1998).
27. Para. 74, supra n. 11.
28. Para. 75, ibid.
29. Ibid.
30. Para. 76, ibid.
31. Articles 60 and 61, respectively.
32. See, for example, 228/99, The Law Office of Ghazi Suleiman v Sudan 16th Annual Activity Report of the ACHPR (2002-3) Annex VII; 11 IHRR 245 (2004), which refers to European Court of Human Rights' decisions, among others.
33. Para. 78, supra n. 11.
34. 12 IHRR 856 (2005).
35. This issue 'was abandoned during the hearing of the matter at the African Commission's 31st Ordinary Session', although no reasons are given.
36. In the examination of state reports, Commissioners have sometimes asked states whether they have abolished the death penalty, expressly linking this with the violation of the right to life. For example, at the 31st Session of the African Commission in May 2002, one Commissioner asked the delegation from Cameroon: 'The death sentence is still in the criminal code but it has been said that for more than 15 years there has been no execution. Are there any efforts to guarantee the right to life and thus abolish the death sentence?' See: Murray, Report of the 31st Ordinary Session of the African Commission on Human and Peoples' Rights, 2-16 May 2002, on file with author.
37. Adopted at 26th Ordinary Session on 15 November 1999, ACHPR/ Res.42(XXVI)99.
38. Ibid.
39. Para. 52, supra n. 27.
40. Ibid.
41. Ibid.
42. See the ICJ's approach in the Legality of the Use of Force (Yugoslavia v 10 NATO States) cases, ICJ Reports, 2004, 3. See, further, the separate declarations of judges in that case.
43. 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation v Nigeria 12th Annual Activity Report of the ACHPR (1998-99); 7 IHRR 274 (2000).
44. Paras 25-6, supra n. 27.
45. Para. 32, ibid.
46. Para. 43, ibid.
47. Inter-American Commission on Human Rights, Cases 12.023, 12.044, 12.107, 12.126 and 12.146, Desmond Mckenzie, Andrew Downer and Alphonso Tracey, Carl Baker, Dwight Fletcher, Anthony Rose v Jamaica Report No. 41/00 (2000); 8 IHRR 92 (2001) at para. 228.
48. African Commission on Human and Peoples' Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, DOC/OS(XXX)247; 12 IHRR 1180 (2005) at para. H. c.
49. 147/95 and 149/96, Sir Dawda K. Jawara v The Gambia 13th Annual Activity Report of the ACHPR (1999-2000) Annex V; 8 IHRR 243 (2001) at para. 61.
50. See also a case against Nigeria where the Governor was entitled to confirm or disallow the conviction of a tribunal. The Commission held that this was not a remedy that required exhaustion as it was a 'discretionary extraordinary remedy of a non-judicial nature' whose object 'is to obtain a favour and not to vindicate a right'. In addition, it 'may constitute an "act violating fundamental rights" as described in Article 7(1)(a) of the Charter. In this case, the fundamental rights in question are those to life and liberty provided for in Articles 4 and 6 of the African Charter'. Communication 60/91, Constitutional Rights Project v Nigeria (in respect of Wahab Akamu, G. Adeaga and Others) 8th Annual Activity Report of the ACHPR (1986-7) Annex VI; 3 IHRR 132 (1996) at paras 5 and 6.
51. Paras 46-7, supra n. 27.
52. Para. 48, ibid.
53. See, for example, 97/93, John K. Modise v Botswana 14th Annual Activity Report of the ACHPR (2000-01) Annex V; 6 IHRR 828 (1999) at paras 11, 13 and 18.
54. Para. 41, supra n. 27.
55. For the Commission's power to issue provisional measures, see Rule 111, Rules of Procedure of the Commission.
56. It was in this vein that the Commission wrote to the Namibian Government in 239/2001, Interights (on behalf of Jose Domingos Sikunda) v Namibia 15th Annual Activity Report of the ACHPR (2001-02) Annex V; 10 IHRR 279 (2003). There it was alleged that an individual had been arbitrarily arrested and detained and might be deported to a third state where he might be ill-treated, and the Commission was asked to issue provisional measures to ensure that the authorities did not do anything to put his life at risk. The communication, including the request that the chairman of the African Commission contact the Namibian authorities, was received at the Commission on 31 January 2001. Shortly afterwards, on 19 February 2001, the chairman of the Commission wrote to the Minister of Foreign Affairs as the decision notes 'expressing concern over the alleged deportation of Mr Sikunda' (para. 10). The government responded on 22 February by not agreeing with the Chairman's concerns.
57. International Pen et al. v Nigeria, supra n. 36 at para. 116. In these cases, a request for the postponement of the execution of Ken Saro-Wiwa and others was ignored. 'No response to this appeal was received before the executions were carried out', although the government did respond attempting to justify the death penalty.
58. Ibid. at paras 9, 32 and 35.
59. As well as International Pen et al. v Nigeria, supra n. 36,
60. see, for example, The Law Offices of Ghazi Suleiman v Sudan, supra n. 25, in which the defendant state was urged to adopt provisional measures to call on governments to open the universities immediately and prevent further interference with teaching. The case was held inadmissible for failure to exhaust domestic remedies and no further comment was made by the Commission on the provisional measures point.
61. Para. 9, supra n. 27.
62. Para. 50, ibid.
63. See 'Pityana Questions Bosch Execution', available at: http://www.rsa-verseas.com/weekly/old39a.htm#five.
64. The fax is usually sent to the Ministry of Foreign Affairs, not the local embassy. On the practice of the International Court of Justice, see Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) at 153.
65. See 212/98, Amnesty International v Zambia 12th Annual Activity Report of the ACHPR (1998-9) Annex V; 7 IHRR 286 (2000) where the Commission communicated the provisional measures to the Ministry of Foreign Affairs at the session and sent them to the Embassy of Zambia in Addis Ababa.
66. See paras 14 and 15 of that decision. In International Pen et al. v Nigeria, supra n. 36, the Commission faxed a note verbale to the Ministry of Foreign Affairs of Nigeria, the Special Advisor to the Head of State, the Ministry of Justice and the Nigerian High Commissioner in The Gambia, calling on the government not to cause irreparable prejudice to the individuals. See para. 8 of that decision.