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«The Role of The African Court on Human And Peoples’ Rights in the Protection and Promotion of Human Rights in Africa: The Case Against Harmful ...»

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The Role of The African Court on Human And Peoples’ Rights in the Protection and

Promotion of Human Rights in Africa: The Case Against Harmful Cultural Practices.

By:

Stephanie M. L. De Klerk

Supervised By:

Ms. Y Dausab

Submitted in partial fulfilment of the LL.B degree at the Law Faculty, University of Namibia

Due Date

November 2010

SCHEDULE A

“I the undersigned, hereby declare that the work contained in this dissertation for the purpose of obtaining my degree of LL.B is my own original work and that I have not used any other sources than those listed in the bibliography and quoted in the references.” Signature: ___________________________

Date: ____________________________

Supervisor’s Certificate I, ___________________________ hereby certify that the research and the writing of this dissertation was carried out under my supervision.

Supervisor’s signature: ________________________

Date: ________________________

The word count of this Dissertation is: 16 772 words.

Contents Page List of abbreviations

Abstract

Acknowledgements

Chapter 1 Introduction

1.2. Contextual Framework

1.3. Conceptual Framework

1.4. Statement of the Problem

1.5. The Hypothesis

1.6. Limitation of the scope of the Dissertation

1.7. Literature Review

1.8. Research Methodology

1.9. Summary of the Chapters

Chapter 2: Situation Analysis

2.1. Initiation Schools in Africa

2.2. The Practice of Polygamy (Polygyny)

Chapter 3: Normative Framework of Protection Regional and National Protection

3.1. Initiation Schools versus the Rights of the Child

3.2. Polygamy versus the Rights of Women

Chapter 4: The Case for or Against the Right to Culture

Chapter 5: Advice or Enforcement? Analysing the Roles of the African Commission and the African Court

Chapter 6: Conclusion

Chapter 7: Bibliography

List of abbreviations

–  –  –

ICCPR International Covenant on Civil and Political Rights OAU Organisation of African Unity UDHR Universal Declaration on Human Rights UN United Nations

–  –  –

Abstract Culture is a universal concept that forms an innate part of every existent society in the world.

It defines what people wear, eat and do for relaxation. It determines stature, etiquette and mannerisms and it sets out the nature of relationships that individuals within a society will have with each other. The reason at the core of all three World Wars was a clash in ideology. 1Communism with capitalism, Fascism with Nazism and Capitalist countries also clashed with the Nazi state of Germany. Ideologies are doctrines of policy used by the powerful to rule, and at the helm of that is the ability to establish a common culture.

The African continent is no stranger to the concept of culture. As the Mother continent, it is the originating continent of culture. Culture is rooted in a people’s feeling of sameness, commonality and unity.2 It subscribes to the notion that no man is an island, therefore community is an important conductor of culture, it derives its legitimacy from the community’s willingness to engage it and live with it. 3 Many cultural practices developed as a result of daily life and the life cycle of people. Birth, life and death brings with it different ceremonies, whether this entails a stork party, a wedding or a funeral is determined by the community in which it happens.

Over time however, some cultural practices have become distorted, by contemporary ideologies such as capitalism and the pursuit of individual interests. In some countries initiation schools have become breeding grounds for sexual exploitation, unhygienic circumcisions and cruel initiation rituals, even though the initial intention of these schools was to prepare children to become young adults that are ready for marriage or that are ready to take on the responsibilities that come with adult life.

Polygamy has been identified as being inherently discriminatory against women, because of the fact that it only allows men to have more than one wife, whereas the same right is not afforded to women. These are but two African problems with culture, therefore the solution must be an African one.

The African Court came into being on the 25th of January 2004 with the ratification by fifteen member states of the Protocol to the African Charter on Human and Peoples’ Rights Establishing the African Court on Human and Peoples Rights. The Court will now strengthen the role the African Commission had to protect human rights on the African continent, but more excitable is the fact that the creation of the African Court brings with it prospects of Heyns, C & Stefizyn, K. 2006. Human Rights, Peace and Justice in Africa: A Reader. Pretoria: Pretoria University Press. P. 15 Cobbah, J. ‘African values and the Human Rights debate: An African Perspective ‘ (1987) 9 Human Rights Quarterly 309 Ibid.

better enforceability, legal certainty, binding decisions, and a sense of immediate justice, that was lacking with the African Commission.

This paper forecasts the African Court’s ability; in light of jurisprudence of the African Commission; to balance the right of individuals to engage in cultural practices that are harmful with the protective mandate that the Court has in terms of article 45 of the African Charter on Human and Peoples’ rights, to protect the human rights of individuals in line with the provisions of the African Charter.





Acknowledgements Thanks to goes everyone who assisted me directly and indirectly, but I must thank the

following people individually:

God, for the creation of early mornings and late nights My Mother for the encouragements and words of wisdom, care and concern;

Ms. Yvonne Dausab for going from being my African Human Rights Moot Court Coach to being my dissertation supervisor. For the countless hours of consultation, assistance with literature and the extra nudge when I felt like giving up;

Professor Nico Horn for the patience and understanding;

Albert Titus and the mooting team from Rhodes University for invaluable insights into human rights issues on the African continent;

And finally my family in Swakopmund, for the words of encouragement.

Chapter 1: Introduction The African continent is known for a number of things. It is the cradle of mankind, the slave continent and the mother land, but more than this Africa is known for the rich culture of its people. It is written that Africa’s best contribution to human existence is its people’s sense of culture, tradition and heritage; it is this characteristic that sets African apart from Europe and the America’s. Chinua Achebe4 wrote nostalgically of an Africa before it was invaded by European settlers, Miriam Makeba’s songs about the Motherland shot her to fame in America during her years in exile there. Contemporary concert groups such as The Soweto String Quartet and Lady Smith Black Mambazo still entertain everyone from the Queen of England to America’s Secretary of State, Hillary Clinton with unique African song and dance.

African culture is centred around the notion that: ‘I am because we are, and because we are therefore I am’ thus the most distinctive difference between African and European culture is the fact that the African society stresses the importance of kinship, group ness, sameness and commonality, whereas Europeans are able to carry out family life in the form of the nuclear family and often in isolation of other kin5. It is due to this need for community, that there exist certain basic principles within African society centred and anchored in culture and tradition that creates a community.

Respect, is the cardinal guiding principle for behaviour within the family and the society at large6, this is drawn from the hierarchal structure within traditional communities. It is said in African culture that the child learns to respect his elders even before he can speak 7. Within the Akan society8 anyone older than a child (even by a day) should command that child respect. Hence the role and position of children in African society is usually that they are to be obedient, and restrained in their communication with an adult within the community. In the African community child care is a communal affair hence a mother can depend on the entire community for support in rearing her children and discipline can be administered by any elder within the community.

It is because of this sense of ubuntu, which exists within the African society that there is little room for the pursuit of human rights to vindicate the rights of an individual against the world.

Chinua Achebe quoted the poem of W.B Yeats in the book Things Fall Apart in which he compares Africa’s decent into colonialism as “...spiralling in the widening gyre, the falcon cannot hear the falconer...Anarchy is loosed upon the world.” He links Africa’s lost of cultural values and the generational gap as reasons for Africa's decent into European rule.

Cobbah, J. ‘African values and the Human Rights debate: An African Perspective ‘ (1987) 9 Human Rights Quarterly 309 Ibid.

Ibid. P. 36 The Akan’s are an ethnic grouping from Ghana.

The African notion of family seeks vindication of the communal well-being. The starting point is thus not the individual, but the whole group including both the living and the dead9.

There can be no doubt then that the beat of the drum and stories around the fire are synonymous with Africa. Culture defines not only Africa, but the way of life, community, heritage and decision making, hence in the discussion about human rights, the importance of cultural relativism is critical.

1.2. Contextual Framework

It is clear that culture forms an integral part of Africa, thus there can be no talk of erasing it from Africa’s existence. The question arises then what should be the response when individuals; acting under the notion of culture; obliterates and marres the inherent rights Africans have by virtue of the fact that they are human and African?

This dissertation will critically analyse the role of the African Court to this question. More specifically, it will refer to the role of the African Court in balancing the contra-dynamics between the right of the African to culture and the mandate it has to protect the human rights of people on the continent.

1.3. Conceptual Framework

The various themes of this dissertation will be centred on a number of terms and concepts, the misunderstanding of which will diverge the attention of the reader from that which this paper intended the reader to be focused on. The dissertation will make use of definitions and understanding that are either common or that are set out in various instruments of protection and views on the subject matter, therefore it is prudent that the reader be made aware of those concepts.

1.3.1. Culture

Culture is defined by Bennett10 as one underlying component of customary law, which involves all aspects of human thinking, feeling and behaviour in one or more social or national group. These aspects include religion, philosophy and attitude; social, administrative and legal institutions; clothes; nutrition; architecture; demography; behaviour; the arts etc.

Thus culture, he contends is composed of patterned and interrelated traditions which are Cobbah, J. ‘African values and the Human Rights debate: An African Perspective ‘ (1987) 9 Human Rights Quarterly 309

Ruppel, O. 2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality? Windhoek:

Macmillan Education Namibia. 43 transmitted over time by mechanisms based on the human capacity to create linguistic and non-linguistic symbols.

1.3.2. Cultural Relativism

Cultural relativism is the assertion that human values, far from being universal, vary a great deal according to different cultural perspectives. When applying cultural relativism to human rights, the presupposition is that the promotion, protection, interpretation and application of human rights is and should be interpreted differently within different cultural, ethnic and religious traditions. In other words, according to this view, human rights are culturally relative rather than universal11.

Taken to its extreme, cultural relativism would pose a dangerous threat to the effectiveness of international law and the international system of human rights. If cultural tradition alone governs State compliance with international standards, it could create the possibility of widespread disregard, abuse and violation of human rights being given legitimacy.

Accordingly, the promotion and protection of human rights perceived as culturally relative would only be subject to State discretion, rather than international legal imperative. By rejecting or disregarding their legal obligation to promote and protect universal human rights, States advocating cultural relativism could raise their own cultural norms and particularities above international law and standards12.

1.3.3 Custom or tradition

Custom is defined as being a long established activity or action that becomes habitual within traditional communities. Okupa13 writes: “...customary law had been a part of African traditional communities, since time immemorial...” This best describes the notion that custom is culture in action; it is the continuous and constant activity of practicing culture that will then become habit and settled practice within the community.

1.3.4. Harmful Practice

Ayton-Shenker, D. The Challenge of Human Rights and Cultural Diversity. In 35 Virginia Journal of International Law. 32.

Ibid.

Okupa, E. 2008. Carrying the Sun on Our Backs. Windhoek: Macmillan Publishers. P 12 A harmful cultural practice must be defined in the ordinary literary sense. It is defined by the Collins14 dictionary as being an injurious, detrimental or destructive activity that takes place within a society that either forms a part of the predetermined traditions and heritage set out in the society or that which has remained part of the customs of a people for time immemorial.



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