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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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For the purposes of this dissertation it is necessary to bring this definition within the realm of law by asserting that harmful cultural practices have been placed under the magnifying glass by applying the test for discrimination in order to access the extent of their harmfulness.

Article 1(g) of the African Protocol on the rights of Women defines harmful practices as:

“...all behaviour, attitudes and/or practices that negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity” 1.3.3. The Test for Discrimination The test for discrimination finds its genesis under the principle of discrimination, which although not clearly defined has a framework of what the test for discrimination would have to establish in order to confirm that discrimination has in fact taken place. The principle of non-discrimination precludes treating differently similar situations, and treating equally different situations unless this differential treatment is objectively justified. While both principles of non-discrimination on grounds of sex could fit this general definition, important variations arise inside each of the constitutive material elements of discrimination. In a

nutshell, the latter are:

(i) an unfavorable treatment

–  –  –

(iii) based on a prohibited ground of discrimination (iv) That cannot be objectively justified.

The United Nations Charter requires UN Member States to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” and article 2 of the Universal Declaration of Human Rights (1948) sets forth the rights and freedoms for all “…without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. This notion is echoed by article 2 of the African Charter on Human and Peoples’ Rights, whilst the preamble of the African Charter calls upon state Collins. Pocket Dictionary & Thesaurus. Great Britain: HarperCollins Publishers. 2003. P. 300.

parties to “…[Eliminate]…all forms of discrimination, particularly those based on race, ethnic group, color, sex, language, religion or political opinion…”

1.3.4. The Margin of Appreciation

For the purposes of this dissertation, it would do justice for to explain the doctrine on the margin of appreciation as it was invoked in the case of Prince v. South Africa. 15 The case considers the right of a man to practice his freedom of religion (Rastafarianism) in South Africa, under the premise that he wanted to be admitted as a legal practitioner, whilst

continuing using the use of cannabis. The Commission held that:

“...the margin of appreciation informs the African Charter in that it recognises the respondent state in being better disposed in adopting national rules, policies and guidelines in promoting and protecting human and peoples’ rights as it indeed has direct and continuous knowledge of its society, its needs, resources, economic and political situation, legal practices, and the fine balance that need be struck between the competing and sometimes conflicting forces that shape its society.”

1.3.5. The Principle of Complimentarity

According to the principle of complementarity, another customary international law principle16, human rights agencies and tribunals, should only intervene where it is clear from a State parties’ conduct that the concerned state is either not willing or able to investigate and prosecute the violating party within its own jurisdiction.

1.4. Statement of the Problem

2004 AHRLR 105 (ACHPR 2004) "Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. The Statute of the International Court of Justice describes custom as “evidence of a general practice accepted as law.”Custom is generally considered to have two elements: state practice and opinio juris. State practice refers to general and consistent practice by states, while opinio juris means that the practice is followed out of a belief of legal obligation” The stand-off between the right to culture and the mandate of the African Court to protect the human rights of Africans is based on the premise that even though culture forms an integral part of African societies and is deemed to be inherently good, there are some cultural practices that due to a plethora of reasons have become noxious. Since culture is central to societies in Africa’s co-existence it is important that a balance is found favour of the protection and promotion of human rights. The problem primarily lies in harmful cultural practices that take place at initiation schools; this can range from unhygienic circumcision or callous initiation trials for young boys to genital mutilation and forced sexual intercourse for young girls; and the effect of polygamous marriages on the rights of women.

1.5. The Hypothesis

The African Commission has through various methods pronounced itself on how the right to culture should be balanced with the protection of the human rights of Africans. However, given the fact that the African Court will now take over; from the African Commission; the role of adjudicating on human rights matters on the African continent, one must consider the type of opinion it might have. Therefore, it is necessary to debate how the African Court will go about pronouncing itself on the right to culture vis-a-vis human rights violations.

Can one deduce that the African Court will consider itself bound to adhere to the jurisprudence on cultural rights that has already been set by the African Commission? Will it make full use of the “complimentary relationship” that the Protocol on the African Human Rights Court sets out in Article 2? Or, given the notion that more harmful cultural practices are manifesting themselves in African societies; will the African Court embark on a quest to etch out a different status quo in terms of cultural rights?

Hence this paper will endeavour to find out whether the African Court can play a positive role in eradicating harmful cultural practices, whilst taking care not to undermine the right to culture as embodied in its constitutive document?

1.6. Limitation of the scope of the Dissertation As earlier alluded to, the dissertation will focus on the role of the African Court in protecting human rights and juxtaposing it with the right of African societies to practice their cultural traditions.

The African Court was created as a judicial organ of the African Union; that only has African states as member states. Hence it suffices to note that the African Charter on Human and Peoples’ rights as well as the Protocol on the African Human Rights Court are only binding on African states, and thus vicariously protects the human rights of people on the African continent. This does not suggest, however that other international human rights organs such as the Universal Declaration of Human Rights and International Covenants cannot be invoked by the African Court when it interprets the rights befalling to the African citizen.

Article 60 of the African Charter on Human and Peoples’ Rights distinctly sets out that the African Commission shall draw inspiration from international law on human and peoples’ rights, inclusive of the Universal Declaration of Human Rights and other instruments adopted by the United Nations, as well as from the provisions of various instruments adopted within the specialised agencies of the United Nations.

It is envisaged that given article 2 of the Protocol of the African Court, the African Court itself would draw inspiration from these and other international instruments when executing its protective mandate and adjudicating on cases it is presented with.

However, in this dissertation no focus will be placed on the protective mandate of international organisations such as the United Nations and the European Commission on Human Rights in interpreting the right to culture. Reason for this is that the fields of interest of this dissertation; namely initiation schools and the issue of polygamous marriages are unique to the African continent.

It is fitting to note that most of the jurisprudence that will be used as authority will be that of the African Commission. Reason for this is that the African Court was only established recently and thus there isn’t a substantial amount of case load of judicial precedence by the Court. Therefore, the dissertation will contemplate the possible direction the African Court could take based on the jurisprudence of the African Commission.

1.7. Literature Review

A lot of desktop research was done, hence the research entailed reading various books and articles for information and insight on the various chapters and the topics discussed there under. However, a few books and articles can be singled out as being the source of the bulk of the information constituting the dissertation.

The book by Thoko Kaime called; The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective. 2009. Provided useful insight into the position of the child vis-a-vis the African Charter on the Rights and Welfare of the Child, as well as provided insight into how international mechanisms are used for the protection of the rights of the child and how these international mechanisms are used alongside local cultural processes.

Kaime makes a convincing argument for cultural legitimacy that was particularly useful for Chapter 3 on the normative framework of protection for African children.

Frans Viljoen’s book called International Human rights Law in Africa. Oxford, published in 2007, was best used to in researching Chapter 3 on the normative framework of protection and Chapter 4 on the case for or against culture. Viljoen provides the reader and researcher alike with a comprehensive analytical overview of human right on the African continent as well as the work of the African Union in the promotion and protection of human rights on the continent. He is able to extract necessary pit falls and returns that the establishment of the African Court on Human and Peoples’ Rights will mean for the African continent that are very concise.

In order to better understand cultural relativism on the African continent, I read the book by Issa Shiviji called The Concept of Human rights in Africa. This book provided invaluable information on the African perception of human rights and the notion of culture as being a living and evolving part of African society, this assisted with research fro chapter 4 regarding the case for or against culture.

The Overview Report of the Research Project by the International Labour Organisation and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the Rights of Indigenous Peoples in 24 African Countries by the International Labour Organisation and African Commission on Human and Peoples’ Rights was used to gain knowledge o the effect of harmful cultural practices on indigenous women and children.

These are the people most affected by harmful cultural practices because their traditional communities have not evolved much over time.

Besides these books, the compendium of the key human rights documents of the African Union as well as various articles by academics proved useful in completing the dissertation.

1.8. Research Methodology The research methodology for this dissertation was a combination of desktop and qualitative research. The nature of the topic was not one for which interviews needed to be conducted because there was a wide variety of books, journals, articles as well as memorials available from which to draw information that was useful, hence a lot of the research entailed reading books and articles on the topic.

Qualitative research; as opposed to quantitative research was used during this dissertation.

This is due to the fact that the topic was structured in such a way that is research needed to be done with regards to the policy of the African Court with regards to the rights of culture and harmful cultural practices, as well as national i.e. state policies and laws governing the right to culture. It was neither necessary nor possible to acquire statistics or figures regarding the number of cultural practices that are harmful. this would not have served any purpose, due to the fact the cultural practices, laws, how state responsibility is exercised is different from one country to the next, hence no trend or pattern would have been deducible from statistics, furthermore the African Commissions protective mandate is applied on a case to case basis, hence finding a common statistic would have been impossible.

Qualitative approaches have the advantage of allowing for more diversity in responses as well as the capacity to adapt to new developments or issues during the research process itself, this advantage helped me structure each chapter in a manner that could fully reflect the topic discussed in that chapter.

Qualitative researchers use different approaches in collecting data, such as the grounded theory practice, storytelling, classical ethnography, or shadowing. Qualitative methods are also loosely present in other methodological approaches, such as action research or actornetwork theory. Forms of the data collected can include interviews and group discussions, observation and reflection field notes, various texts, pictures, and other materials.

For the purposes of this dissertation I engaged in group discussion with my team mate as well as opponents at the African Human Rights Moot Court Competition, which broadened my understanding of the concepts involved.

1.9. Summary of the Chapters The dissertation comprises of six chapters with sub headings, of which four chapters deal with the substantive aspects of the dissertation topic. Chapter 1 is an overview of various useful researching and vocabulary aspects, while chapter 6 concludes the dissertation.

Hence only chapter 2, 3, 4 and 5 will be summarised.

1.9.1. Situation Analysis

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