Reflections on Direct Access to the African Court on Human and Peoples’ Rights: A Cul De Sac?

Individuals and NGOs can directly access the African Court on Human and Peoples’ Rights if the state against which a case has been filed has made an optional declaration granting this access. Alternatively, they can access the Court if the African Commission on Human and Peoples’ Rights refers communications to it. However, two main barriers have riddled this structure. One, the few states that had made the optional declaration have begun to rapidly withdraw from it. Two, the African Commission, which was expected to mitigate such a situation where few states are making the optional declaration, is hardly referring cases to the Court. This paper examines these two barriers in tandem. It argues that if this status quo is sustained, then, sooner rather than later, this path treaded may lead the African human rights system to a cul-de-sac – back to a one tier system, composed of an accessible Commission and a Court inaccessible to both individuals and NGOs. Drawing lessons from the European and Inter-American Human Rights system, it recommends preventing this eventuality by amending the African Commission’s 2020 Rules of Procedure to provide for a default procedure of referral of cases from the Commission to the Court.

Teleological Interpretation in the Emerging Socio-Economic Rights Jurisprudence of the African Court: African Commission on Human and Peoples’ Rights v Republic of Kenya

The African Court has recently decided on merits its first socio-economic rights case – ‘the African Commission on Human and Peoples’ Rights v Republic of Kenya’. The Court applied aspects of the teleological approach to interpretation to interpret socio-economic rights in question. The article examines the Court’s application of the teleological approach in its emerging socio-economic rights jurisprudence. The analysis shows that, although the Court found the respondent State in violation of a wide range of socio-economic rights, there are still some shortcomings in its application of the teleological approach. The African Court did not extensively exhaust all the interpretative tools within the African Charter that are in line with the teleological approach. Consequently, the interpretative potential embedded in these aspects of the teleological approach for effective interpretation of socio-economic rights in the African Charter is restricted. The Court also applied the tenets of the teleological approach inappropriately and interpreted some rights relevant to socio-economic rights based on a narrow textual approach. The mixing of the interpretative approaches leads to jurisprudential inconsistencies. If the Court certainly adopts and appropriately apply the teleological interpretation, it will contribute in advancing effective promotion and protection of these rights in the Continent.

Legal Issues Involving Succession Disputes among South African Churches: Some Lessons

South African Christian churches have been widely recognised as major civil institutions that play a role in the provision of social services to complement the state effort. But the concern is there has been an increase in the number of disputes involving leadership succession in these churches that have had to be adjudicated by the civil courts in the last decade. These disputes impact on the governance, growth, reputation and sustainability of churches. The South African Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) identifies weak or lack of effective succession planning in the governing policies of churches as the major cause of these disputes. Against this backdrop, this article analyses some specific cases to explore how church policies influence succession disputes in South African churches. It further explores how the courts engage and interpret the governance policies of churches in the resolution of these disputes. The article reveals that the findings of the CRL Rights Commission are justified. It observes that, among other issues, some churches lack effective and workable succession planning in their governing policies. The policies on leadership succession of these churches are poorly drafted, thereby creating significant lacunae and vacuums leading to conflicts. The article concludes by identifying some lessons that churches can learn from the judicial approach in the resolution of disputes in order to enhance the quality of church policies, thereby reducing their exposure to succession disputes.

A Commentary on the African Commission's General Comment on the Right to Freedom of Movement and Residence under Article 12(1) of the African Charter on Human and Peoples’ Rights

In 2019, the African Commission on Human and Peoples’ Rights adopted General Comment No 5 on the African Charter on Human and Peoples’ Rights: The Right to Freedom of Movement and Residence (Article 12(1)). In this general comment, the commission elaborated on the right to freedom of movement and residence within state borders. This issue, while explicit in international human rights law, is a challenge within various jurisdictions, including in Africa. This article provides a background to and commentary on General Comment No 5, leveraging on the insight of the authors, who participated in its drafting. Unlike the UN Human Rights Committee's earlier general comment, General Comment No 5 provides detailed guidance on the internal dimension of the right to free movement and residence. As “soft law”, its persuasive force depends on a number of factors, including its use at the domestic level, its visibility and its integration into regional human rights jurisprudence.

The right to return to one's country in Africa: Article 12(2) of the African Charter on Human and Peoples' Rights

SUMMARY At the height of the COVID-19 pandemic many African countries barred people, including citizens and foreign nationals, from entering or leaving their territories. This was the case although article 12(2) of the African Charter on Human and Peoples' Rights provides that '[ejvery individual shall have the right to leave any country including his own, and to return to his country'. However, article 12(2) also provides that '[t]his right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality'. Article 12(2) of the African Charter provides for the rights both to leave and to return to one's country. In this article the discussion is limited to the right to return. Unlike other regional human rights treaties in Europe, the Americas and the Arab world where the right to return to or enter one's country is reserved for citizens only, the African Charter does not expressly limit this right to citizens. This raises the question of whether the right to return to one's country is reserved for citizens or nationals only. In answering this question, one of two arguments could be made. The first argument is that the right to return under article 12(2) is reserved for citizens only (the strict approach). The second argument is that it is applicable to both citizens and to a few categories of foreign nationals (the broader approach). The jurisprudence of the African Commission and the African Court shows that these bodies have adopted the strict approach. This could be attributed to the fact that the communications they have so far dealt with have been filed by citizens (de jure or de facto,) or on behalf of citizens. However, these bodies are likely to adopt a broad approach should the facts of the case(s) so require. In the constitutions of most African countries, states have also taken a strict approach. This article explains why it is better to take a broader approach when dealing with article 12(2) of the African Charter. This argument is made by partly comparing and contrasting article 12(2) of the African Charter with other regional and international instruments that protect the right to return. The article also demonstrates how the right to enter or return to one's county has been approached in the constitutions of different African countries. Key words: return; article 12(2); African Charter; one's country; entry; African Court; African Commission

Understanding the nature, scope and standard operating procedures of the African Commission's special procedure mechanisms

SUMMARY Special procedure mechanisms form an important aspect of the human rights architecture of the African Commission. Although introduced gradually, these mechanisms have grown in both size and scope. This article considers the overall nature, scope and standard operating procedures of the African Commission's special procedure mechanisms in light of development and evolution by reference to its composition; selection and appointment ofmandate holders, code of conduct of mandate holders (that is, independence and conflict of interest), working modalities, immunities and privileges and procedure. It also identifies and analyses possible areas of reform in this system. Key words: African Union; African Commission; human rights; special procedure mechanisms; standard operating procedures

Barriers to fulfilling reporting obligations in Africa under the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa

SUMMARY The state reporting process is one of the important means through which human rights compliance is monitored. Pursuant to article 62 of the African Charter on Human and Peoples' Rights and article 26(1) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, state parties are required to provide a detailed report on the human rights situation in their respective countries to the African Commission on Human and Peoples' Rights. The state report should be submitted every two years, and should outline the steps, the progress made, and challenges encountered in realising the rights provided for in the African Women's Protocol. Unfortunately, only a handful ofstates have fulfilled this reporting obligation. Consequently, this article identifies and investigates barriers to fulfilling reporting obligations under the African Women's Protocol. Specifically, it interrogates why some African governments have failed to fulfil their reporting obligations after showing significant commitment by their ratification of this instrument. It is acknowledged that while there might be a myriad of barriers that could be advanced, the article identifies specific barriers to non-reporting on the African Women's Protocol. It concludes with some form of optimism, arguing that the difficulties to fulfilling the reporting obligations on the African Women's Protocol notwithstanding, African governments should be held accountable and made to see the value that could be derived from reporting on human rights compliance. The African Commission's need to take up proactive steps to facilitate increased seriousness to the reporting process itself, which would then encourage and compel state parties to begin to take their reporting obligations seriously and fulfil the obligations therein, is underscored. Finally, to overcome these barriers, recommendations are proffered to critical stakeholders such as the African Commission, African governments and civil society organisations. Key words: African Charter; African Women's Protocol; women's rights; state reporting; African Commission

Disparaging Language (ex curia) as a Barrier in Individual Complaints before the European Court of Human Rights (Zhdanov v Russia)—Lessons for the African System?

On 16 July 2019, the European Court of Human Rights (ECtHR) rejected an application by Russian human rights activist, Nikolay Alekseyev, on the basis that he had published personally offensive and threatening material online, directed towards the ECtHR. This was in the matter of Zhdanov and Others v Russia Applications Nos 12200/08, 35949/11 and 58282/12. Even though the published material fell afoul of the European Convention in that it amounted to an abuse of the court process, nothing offensive was contained in the applicant’s own submissions before the court. In like fashion to the ECtHR’s admissibility requirements, the African Charter contains a much more pointed exclusionary clause which renders inadmissible any communication that contains disparaging or insulting language. The difference between the two systems is that the European system relies on an open-ended concept of ‘abuse of the right of individual petition’, whilst the African system specifically proscribes insulting language. In this article, I analyse the approach of the ECtHR in the Zhdanov matter, and contrast it with the approach of the African Commission on Human and Peoples’ Rights (the African Commission) under Article 56(3) of the African Charter on Human and Peoples’ Rights. I further interrogate whether there were any instances where, in similar fashion to the Zhdanov matter, the African Commission declared a communication inadmissible on account of insulting language occurring externally, and not contained within the submission itself. Alive to the fact that the concept of ‘abuse’ in the European system is wide, the article is limited to cases in which the abuse of the right of individual petition under the European Convention manifests in disparaging or insulting language.

Twenty Years of Triumph, Trial and Tribulation: Reflections on the Mechanism of the African Commission’s Special Rapporteur on the Rights of Women in Africa

On the occasion of its 25th Ordinary Session held in Bujumbura, Burundi, from 26 April to 5 May 1999, the African Commission adopted resolution ACHPR/res.38 (XXV) 99 on the appointment of a Special Rapporteur on the Rights of Women in Africa (SRRWA), retrospectively with the appointment taking effect from 31 October 1998. This means that the mechanism of the SRRWA is roughly making twenty years since its initial inception. Coming of age and time, the twenty years of existence of the mechanism of the SRRWA makes it not only one of the oldest (and perhaps most successful) mechanisms of the African Commission; but one that has been the subject of tremendous triumph, trial and tribulation. Over the past two decades, the mechanism has been a product of both progression and regression. By and large the mechanism of the SRRWA has played an appreciable role in the advancement of women’s rights on the African continent. This article aims at taking stock of the achievements and failures of the 20 years of the work of the SRRWA. Although taking pride in the achievements of the mechanism, this article argues for incremental reforms within the mechanism, including the refining of the terms of reference of the mandate; the need for closer cooperation with global and regional systems mechanisms, women at grassroots including women’s rights movements, and mutual support from civil society organisations.