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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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These are human beings, but certain rights that may accrue to them, are either impractical or nonsensical for them to exercise or sought protection for.

Secondly, community dynamics are more important than the opinions of a general assembly of heads of states. The reality that an individual finds themselves in will; in line with the basic human instinct to survive and adapt; determine what it is that a person will feel is owed to them or what is unattainable, not the gentlemen’s agreement between presidents of nations in a foreign country.

This is why the role of chiefs has become most important in African societies. The chief of a community forms the link between that which known to every enlightened citizen within a country and that which must still be told to the people who actually need to hear it, those at the grass root level.

The reality is that even though there exists aspirations at a global level, the practicality of funnelling those aspirations down to the roots of society, is what should be the measure of success of human rights and failing to in that process observe the cultural norms and traditions of the groups in question will lead to an outright rejection of those rights by those Bell, L. Et al. Introduction: Culture and human rights. In Bell, L. 2001. Et al. (Eds) Negotiating culture and human rights 15. In Kaime, T. 2009. The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective. Pretoria: University Law Press. 17 who might really need them. Observing the customs of communities is critical in getting the message of human rights across.

It with due regard for this mindset that cultural relativists reject the universality of human rights notion as naive, lacking empirical validity, ahistorical and, worst of all, culturistically imperialistic86. Relativists connote that different societies have different or no notions of rights. They opine that human rights are not God given as universalist's claim, but rather a historical construct that was developed in Europe in reaction to the social, political and economic development of those communities. Scholars such as Obermeyer have questioned the strict presumptions upon which human rights are based and have suggested that flexibility must be incorporated when conceptualising human rights across different cultures87. He stresses that while it is increasingly recognised that absolute human rights cannot be found, it is possible and desirable, to seek common denominators across cultures, which in turn can be used to develop contextually relevant notions of human rights88.

Pollis affirms Obemeyers contention when she writes that:

“Whatever the diversity amongst third world countries in their traditional belief of systems, individuals still perceive themselves in terms of their group identity. Who and what an individual is has been conceptualised in terms of the kinship system, the clan, the tribe, the village, whatever the specific cultural manifestations of the underlying prevailing worldview.

Consequently, any theory of human rights must take into account this reality if it is to be of any use to Africans89.” The African Union as the human rights pioneer on the African continent had be conscious of the reality of Africans within their communities in order to create human rights instruments that would find cultural and legislative legitimacy on the continent. This was by no means an easy task and still requires continual interpretation on a case to case basis. Although the rights and protection afforded to women and children and certain, the method of application is by no means a certain one, but it is necessary.

Chapter 5: Advice or Enforcement? Analysing the Roles of the Commission and the Court Bell, L. Et al. Introduction: Culture and human rights. In Bell, L. 2001. Et al. (Eds) Negotiating culture and human rights 15. In Kaime, T. 2009. The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective. Pretoria: University Law Press. 17 Obemeyer, M. 1995. A cross cultural perspective on reproduction rights. Human Rights Quarterly. 316 317.

In Kaime, T. 2009. The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective.

Pretoria: University Law Press. 8 Ibid.

Pollis, A. Liberal, socialist and third world perspectives of human rights. In Schwab. P. & Pollis, A. (Eds) 1982.

Toward a human rights framework 1ff It is clear from the history on the formation of the African Court, that its establishment was not an easy or light task. Even though there was a call for the creation of an African with an appropriate jurisdiction very early on in 196190, this idea did not materialise, instead the OAU Charter was adopted in 1963 without a human rights framework or a human rights mechanism. Since then the notion of the creation of an African Court was continually met with the justification that it was premature timing or that it should be established at a future date after the African Charter had been adopted91. Since then, four decades passed before the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights, was adopted by the OAU Assembly on the 9 th of June 1998, in Ouagadougou, Burkina Faso.

Even though the African Commission had urged African States to ratify the African Court Protocol in the shortest possible time, by 1998 only two states (Burkina Faso and Senegal) had ratified the Protocol, this was followed by the Gambia in 1999, Mali in 2000, Uganda in 2001 and South Africa in 200292. Clearly indicative of a hesitance on the part of African States to bind themselves to a supra-jurisdictional court such at the African Court. It was only after much nudging from the African Commission that states ratify the African Court protocol and the involvement of the OAU Assembly and Secretary General who noted with concern in the Kigali Declaration93 that only nine African states had ratified the Court Protocol and thus called on all African States to ratify the Protocol that there was an upsurge in 2003. The year saw the ratification of the African Court Protocol by Algeria, Burundi, Comoros, Ivory Coast, Lesotho, Libya, Mauritius, Rwanda and Togo94.

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.

According Article 3 of the Protocol to the African Charter on the Establishment of the African Court of Human and Peoples’ Rights the Court has the competence to take final and binding The first submission with regards to the establishement of an African Court was made in 1961 when African jurists were assembled in Lagos Nigeria for the ‘African Conference on the Rule of Law’. The resolution adopted at the conference called ‘The Law of Lagos’ urged African governments to study the possibility of creating an African Convention on Human rights and a court of appropriate jurisdiction.

Keba M’Baye, the Rapporteur of the African Union at the time is quoted in Viljoen, F. 2007. International Human rights Law in Africa. Oxford: Oxford University Press. 421, as having explained that it is ‘thought premature to do so [create the African Court] at this stage’ Viljoen, F. 2007. International Human rights Law in Africa. Oxford: Oxford University Press. 421 The Kigali Declaration was adopted at the second Ministerial Conference on human rights, held in May 2003 in Kigali Rwanda.

In 2004 five more states ratified the Protocol (Ghana, Kenya, Mozambique, Niger and Nigeria) and in 2005 and 2006 two more, Mauritania and Tanzania, In Viljoen, F. 2007. International Human rights Law in Africa.

Oxford: Oxford University Press. 423.

decisions on human rights violations perpetrated by AU member states. The African Court

Protocol states that:

“The Court has jurisdiction over all cases and disputes submitted to it regarding the interpretation and application of the African Charter on Human and Peoples' Rights (Charter), the Protocol to the Charter on the Establishment of the African Court on Human and Peoples' Rights (Court's Protocol) and any other relevant human rights instrument ratified by States that are party to a case.” Before the African Court came into force, this mandate was entrusted to the African Commission who in terms of Article 45 of the African Charter on Human and People’s

Rights, had, inter alia, the mandate to:

“[...] Promote Human and Peoples’ Rights;

[...] To formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African governments may base their legislation;

[...] Ensure the protection of human and peoples’ rights under the conditions laid down by the present Charter.” The existence of both these organs within the African Union creates the opportunity for the overlapping of the mandates of these institutions, however this dealt with by Article 2 of the

Court Protocol, which states that:

“The Court shall, bearing in mind the provisions of the Protocol, complement the protective mandate of the African Commission on Human and Peoples’ Rights, conferred upon it by the African Charter on Human and Peoples’ Rights.” The African Commission was created as a quasi-judicial protective body of the African Union. Even though it is a useful tool for the promotion of human rights in Africa, the African Commission has been viewed as being a largely ineffective mechanism because it lacks the ability to render binding and enforceable decisions 95. It was this fact that led to the Assembly of Heads of State and Government requesting that the Secretary General of the organisation of African Unity call on government experts to “...ponder in conjunction with the African Commission on Human and Peoples’ rights over the means to enhance the efficiency of the Benedek, W. 1993. The African Charter and the African Commission on Human and Peoples; Rights: How to make it more effective. 11 Netherlands Quarterly on Human Rights 25.

Commission in considering particularly the establishment of an African Court on Human and Peoples’ Rights...”96

Chapter 6: Conclusion: Finding the Balance

The argument of cultural relativism frequently includes or leads to the assertion that traditional culture is sufficient to protect human dignity, and therefore universal human rights are unnecessary. Furthermore, the argument continues, universal human rights can be intrusive and disruptive to traditional protection of human life, liberty and security. When traditional culture does effectively provide such protection, then human rights by definition would be compatible, posing no threat to the traditional culture. As such, the traditional culture can absorb and apply human rights, and the governing State should be in a better position not only to ratify, but to effectively and fully implement, the international standards.

Traditional culture is not a substitute for human rights; it is a cultural context in which human rights must be established, integrated, promoted and protected. Human rights must be approached in a way that is meaningful and relevant in diverse cultural contexts. Rather than limit human rights to suit a given culture, why not draw on traditional cultural values to reinforce the application and relevance of universal human rights? There is an increased need to emphasize the common, core values shared by all cultures: the value of life, social order and protection from arbitrary rule. These basic values are embodied in human rights.

Traditional cultures should be approached and recognized as partners to promote greater respect for and observance of human rights. Drawing on compatible practices and common values from traditional cultures would enhance and advance human rights promotion and protection. This approach not only encourages greater tolerance, mutual respect and understanding, but also fosters more effective international cooperation for human rights.

Greater understanding of the ways in which traditional cultures protect the well-being of their people would illuminate the common foundation of human dignity on which human rights promotion and protection stand. This insight would enable human rights advocacy to assert the cultural relevance, as well as the legal obligation, of universal human rights in diverse cultural contexts. Recognition and appreciation of particular cultural contexts would serve to facilitate, rather than reduce, human rights respect and observance.

Report of Government Experts Meeting, AHG/Res 230, 30 th ordinary session of the Assembly of Heads of State and Government, Tunis, Tunisia, June 1994, cited in A. O’ Shea ‘A critical reflection on the proposed African Court’ (2001) African Human Rights Law Journal 286 Working in this way with particular cultures inherently recognizes cultural integrity and diversity, without compromising or diluting the unquestionably universal standard of human rights. Such an approach is essential to ensure that the future will be guided above all by human rights, non-discrimination, tolerance and cultural pluralism Chapter 7: Bibliography

7.1. Articles Ambunda, L. & De Klerk, S. Women and Custom: A research perspective. In Ruppel, O.

2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality. Windhoek:

Macmillan Publishers Anyolo, P. Polygyny among the Ovambadja; A female perspective. In Ruppel, O. 2008.

Women and Custom in Namibia: Cultural Practice versus Gender Equality. Windhoek:

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

Bell, L. et al. Introduction: Culture and human rights. In Bell, L. 2001. Et al. (Eds) Negotiating culture and human rights 15. In Kaime, T. 2009. The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective. Pretoria: University Law Press Bentham, J. ‘Anarchical fallacies.’ In Bowring, J. (Ed) The works of Jeremy Bentham (1838See also Schofield, P. Et al. (Eds). 2002. Rights, representation and reformNonsense upon stilts and other writings on the French Revolution Campbell, T. The Rights of the Minor. In Alston, P. Et al. (Eds) 1992. Children, rights and the law.

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