INAUGURAL ADDRESS
PROFESSOR N BARNEY PITYANA, PhD
HURDLES AND PITFALLS IN INTERNATIONAL (HUMAN RIGHTS) LAW:
THE RATIFICATION PROCESS OF THE PROTOCOL TO THE
AFRICAN CHARTER ON THE ESTABLISHMENT OF THE
AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
12th August 2003
2
ABRIDGED RESUME: Prof N Barney Pityana
Prof Nyameko Barney Pityana is Principal and Vice Chancellor of the University of
South Africa, a position he has occupied since November 2001. In July 2002, Council
approved his appointment as professor in the Faculty of Law.
Prof Pityana read BA (Law) majoring in Private Law, English and Political Science at the
University of South Africa and later obtained the BProc degree. He was a candidate
attorney in Port Elizabeth at the firm of DKondile & Somyalo, Attorneys – both partners
now serving as judges of the High Court of South Africa. Upon qualifying for admission
as an attorney in 1977, a banning order prevented him from admission as an attorney. He
was, however, belatedly admitted as an attorney at the Cape High Court in 1996.
Prof Pityana then went into exile in 1978 and proceeded to England where he read
Theology at King’s College London and later in Oxford. He was then ordained as an
Anglican priest and served in parishes in Milton Keynes, Buckinghamshire and
Birmingham. After six years as a parish priest, he was appointed Director of the World
Council of Churches Programme to Combat Racism with headquarters in Geneva in
1988.
He returned to South Africa in 1992 and was appointed Senior Research Officer and
Senior Lecturer in the Department of Religious Studies at the University of Cape Town.
While there he obtained a PhD in Religious Studies for an interdisciplinary thesis in
theology, ethics and philosophy.
Prof Pityana was the first Chairperson of the South African Human Rights Commission
in 1995. At the Commission he helped develop the application of the Bill of Rights and
establish a credible independent national institution for the promotion and protection of
human rights. In 1997 he was elected a member of the African Commission on Human
and Peoples’ Rights.
As a member of the SAHRC, Prof Pityana has become known in particular for his
advocacy against racism. At the African Commission, he has pioneered the
Commission’s work on the Rights of Indigenous People in Africa, carving out a niche for
independent African National Institutions as affiliate members of the African
Commission, led the process that saw the adoption of the Guidelines for Freedom of
Expression and the Guidelines on the Prevention of Torture in Africa (the socalled
Robben Island Guidelines). As Rapporteur, Commissioner Pityana has also authored
some of the landmark decisions of the African Commission among them Legal Resources
Foundation v Zambia, Constitutional Rights Project v Nigeria, Ghazi Suleiman v Sudan,
to name but a few. His term of office as a member of the African Commission expires in
October 2003.
3
As a scholar, Prof Pityana is widely published in the fields of theology and ethics, human
rights law and politics.
Prof Pityana holds honorary doctor’s degrees from Trinity College, Hartford,
Connecticut, USA and from the University of Buenos Aires, Argentina. He is also a
Fellow of King’s College London and a Member of the Academy of Science of South
Africa (ASSAf).
Among the committees he serves on, he is non-executive Chairman of Uthingo
Management (Pty) Ltd, the operating company of the National Lottery. He serves on the
Executive Committee of SAUVCA, is on the loveLife Advisory Board and is Chairman
of the Matriculation Board. Internationally, he is on the Governing Board of Global
Reporting Initiative.
5 August 2003
4
EXECUTIVE SUMMARY
HURDLES AND PITFALLS IN INTERNATIONAL (HUMAN RIGHTS) LAW:
THE RATIFICATION PROCESS OF THE PROTOCOL TO THE
AFRICAN CHARTER ON THE ESTABLISHMENT OF THE
AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
5
EXECUTIVE SUMMARY
The Minister of Foreign Affairs, Dr NC Dlamini Zuma signed on behalf of the
Government of the Republic of South Africa and deposited with the Secretary General of
the Organisation of African Unity, the Instrument of Ratification of the Protocol to the
African Charter on Human and Peoples’ Rights on the establishment of an African Court
on Human and Peoples’ Rights on 3 July 2002. The protocol was adopted by the
Assembly of Heads of State and Government of the OAU at Ouagadougou, Burkina Faso
on 9 July 1998.
On 25 June 2002, the Parliament of the Republic of South Africa adopted a resolution
authorising the executive to ratify the Protocol. In order to do so, parliament sought the
legal opinion on the constitutionality of the Protocol which opinion was then supplied by
the Office of the Chief State Law Advisor in which it was stated that there was a potential
conflict between the South African Constitution especially s.167(3) and articles 28(2) and
30 of the Protocol. Although the possibility of actual conflict was considered to be
remote, the Chief State Law Advisor counselled that the treaty may be ratified but that it
would be advisable to enter reservations as far as the effect of Articles 28(2) and 30 in the
national courts was concerned.
In an analysis of the legal opinion, the report of the Justice and Constitutional
Development Portfolio Committee of the National Assembly and the Select Committee
on Justice and Security of the National Council of Provinces, the author notes that the
members of parliament had some reservations about the manner in which the protocol
might be applied in the domestic courts without possible conflict, however remote.
The author then undertakes an exhaustive review of the application of international law in
the domestic courts. The analysis begins with a normative evaluation of the nature and
status of international law, it then examines the obligations the state takes upon itself by
ratification and how the international courts may enforce compliance with the treaty.
It is argued that there is a distinct difference between international treaties and domestic
law. The treaty body is confined to determining whether a state has complied with its
treaty obligations and does not interpret and apply domestic law including the
Constitution. The domestic courts on the other hand, may use international treaty law to
interpret domestic law generally to address ambiguities and lack of clarity in law, as long
as it is not in conflict with the constitution and national laws.
The lecture then examines how the European Court of Human Rights functions and
analyses the principles and doctrines developed by the Court. It also takes some examples
of how the Convention has been applied in some domestic courts especially in the UK.
The lecture also analyses the decisions of the African Commission on Human and
Peoples’ Rights whose protective mandate the Court will complement.
The lecture concludes that there can be no conflict between the protocol and the South
African Constitution, if international law is properly applied.
6
We must not make a scarecrow of the law,
Setting it up to fear the birds of prey
And let it keep one shape till custom make it
Their perch and not their terror.
-
Measure for Measure; Act II, scene 1
The Republic of South Africa acceded to the Protocol to the African Charter on Human
and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’
Rights when the Instrument of Ratification duly signed by the Minister of Foreign
Affairs, the Hon Dr NC Dlamini Zuma, MP was deposited at the Secretariat of the
Organisation of African Unity on 3 July 2002. South Africa is also a state party to the
African Charter which was ratified on 9 July 1996, the Charter being the founding
instrument of the Protocol. The Assembly of Heads of State and Government sitting at
Ouagadougou, Burkina Faso adopted the Protocol on 9 July 1998. To date 7 states have
ratified the treaty, with 15 ratifications required for the treaty to come into force.
The journey towards the ratification and coming into effect of the Protocol has been long
and arduous. Beginning with the conference on the Rule of Law attended by African
jurists and judges in Lagos, Nigeria in January 1961 sponsored by the International
Commission of Jurists which adopted the Law of Lagos, proceeding to the draft protocol
drafted by the ICJ in 1994 leading to a Resolution by the African Commission on Human
and Peoples’ Rights and the adoption of Resolution (AHG/Res.230 (XXX)) by the
Assembly of Heads of State and Government in Tunis in June 1994, the journey has
been long and hard. The Tunis Resolution mandated the Secretary General of the OAU
to convene and conference of experts from member states and from the African
Commission to “ponder the means to enhance the efficiency of the Commission in
considering particularly the establishment of an African Court on Human and Peoples’
Rights.” The first conference of experts was held in Cape Town, South Africa in
September 1995. The Cape Town draft protocol became the founding document of the
Protocol. Subsequent meetings of experts and ministers of Justice refined the document
7
culminating in the final draft that was presented to and adopted by the Assembly of
Heads of State and Government in July 1998.
Article 66 of the African Charter makes provision for special protocols which “may, if
necessary, supplement the provisions of the present Charter.” That means that the
protocol is a part of the Charter and must be interpreted and applied in a manner
consistent with the Charter. The African Charter sets out the rights and duties to be
protected and promoted in terms of the Charter. It also provides for the establishment of
the African Commission on Human and Peoples’ Rights, its powers and responsibilities
and then it ends with a set of applicable principles from which the Charter draws
inspiration. The Protocol on the Establishment of the African Court seeks to establish the
African Court. Article 2 refers to the relationship with the African Commission as
complementary of the protective mandate. The jurisdiction and locus standi before the
Court are set out, the appointment of judges and the enforcement. Of critical relevance to
this lecture are two sections of the Protocol:
Article 3: JURISDICTION
1.
The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the
interpretation and application of the Charter, this Protocol and any other relevant Human Rights
instrument ratified by the States concerned.
and
Article 28 JUDGMENT
1.
…
2.
The judgment of the Court decided by majority shall be final and not subject to appeal.
The Protocol provides for signature, ratification or accession. Twenty-four states signed
the treaty once it was adopted. Signature suggests that the state concerned is committed
to the principles and objectives of the treaty and would honour the spirit of the treaty
pending ratification.1 The period between signature and ratification allows the state to
Article 18 (a) of the Vienna Convention on the Law of Treaties states: “A State is obliged to refrain from
acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has
exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall
have made its intention clear not to become a party to the treaty…” The Law of treaties, it must be
remembered is part of customary international law and it is “law in the Republic unless it is inconsistent
with the Constitution or an Act of Parliament” (s.232 of the Constitution).
1
8
review its legal and constitutional framework and bring it into conformity with the treaty
and then to formalize and make its commitment binding. It also allows the signatory
state to rethink its position and may withdraw its intention to consent to the treaty, in
which case it will have no effect on its international obligations.
It is relevant to state briefly what the ‘push and pull’ factors that are driving the
groundswell of opinion towards the establishment of the Court. Historically, it is not
only that the idea of a Court operating alongside the African Commission was envisaged
as early as the Law of Lagos in 1961 but had never been implemented in part, as
Senegalese jurist and later judge at the International Court of Justice, The Hague, Keba
Mbaye, the principal drafter of the African Charter, the time was not conducive to go all
the way at the time of the drafting of the Charter. Indeed to have got as far as the Charter
went and to have received sufficient ratifications in 1986 to bring the Charter into effect
was a miracle. As early as 1994 efforts have been underway to find ways and means of
increasing the effectiveness of the African Commission. The Preamble to the Protocol
captures this when it says that the African Court will “complement and reinforce, the
functions of the African Commission on Human and Peoples’ Rights.”2
Vincent O Orly Nmehielle elaborates this objective of complementing and reinforcing
the African Commission by stating four reasons why the African Court is necessary. He
says (1) there is a need to make a serious effort to eradicate the shortcomings of the
current system. He hopes that the Court will have the authority to undertake the task of
“reformulating” the Charter.3 (2) That the development of sub-regional judicial
2
For a critique of the African Commission and how the Court could strengthen the Court see Makau wa
Mutua: The African Human Rights System in Comparative Perspective: The Need for Urgent
Reformulation; 5 Legal Fellow 31 (1993) and The African Human Rights Court: A Two Legged Stool?
Human Rights Quarterly Vol 21 (1999) 342; Claude E Welch: The African Commission on Human and
Peoples’ Rights: A Five Year report and Assessment, 5 Human Rights Quarterly (1992) 42; Wolfgang
Benedek: The African Charter and Commission on Human and Peoples’ Rights: How to make it More
Effective, 1 Netherlands Quarterly Human Rights review (1993) 25; Nsongurua J Udombana: Towards the
African Court on Human and Peoples’ Rights: Better Late than Never; Yale Human Rights and
Development Law Journal, Vol 3 (2000) 45. Vol 1 No 2 2001 of the African Human Rights Journal, is
devoted articles on the reform of the African human rights system.
3
I can affirm that the African Commission has gone a long way in its most recent decisions in
reformulating the African Charter especially in re-interpreting the pernicious “claw-back” clauses. Vide
9
mechanisms and the experience of the Inter-American and European regional systems
points the way to the effective application of human rights norms at the domestic level.
(3) Enforcement can be more easily realized by a Court than a Commission, as is
presently the case. (4) A Court could be an important instrument in sustaining
constitutional democracies and facilitating the fulfillment of human rights that are now
universally recognized.4
I would add that with the establishment of the African Union whose founding
instrument, the Constitutive Act of the African Union, 2000 inserts in its Principles and
Objectives the duty to promote democratic principles, human and peoples’ rights and
elevates the authority of the African Charter. Besides the establishment of an African
Court of Justice in terms of the Constitutive Act and the dictates of NEPAD and the
African peer Review mechanism, suggests that the human rights landscape in Africa has
changed radically from what it was in 1981 and demands that instruments of democratic
governance, protection of human rights should be more reflective of the culture that is
being crafted by Africa today.
The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) provides that
“an international agreement binds the Republic only after it has been approved by
resolution in both the National Assembly and the National Council of Provinces…”
(s.231(2)). Pursuant to this provision, parliament began the process towards ratification
early in 2001. According to the report of the Office of the Chief State Law Advisor dated
22 June 2001, the process could not be proceeded with by parliament as clarification had
to be sought. The articles of inquiry are stated as follows:
(a) How are Articles 28(2) and 30 of the Protocol, individually or collectively, to be
interpreted? How are these articles to be interpreted in relation to the Courts and
Administration of Justice Chapter, in particular section 167 of the Constitution?
Legal Resources Foundation v Zambia and Amnesty International v Zambia together with a string of
decisions against Nigeria during the Sani Abacha Military Dictatorship.
4
With my own elaborations added, Towards an African Court of Human Rights: Structuring the Court; op
cit pp39-40.
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(b) Whether any aspect of the African Charter or proposed Protocol for an African
Court, is directly or indirectly, inconsistent with the letter or spirit of the
Constitution, more particularly as set out in paragraphs (c) and (d) below?
(c) Whether any of the rights contained in section (sic) 2 of the Constitution are
inconsistent with any right contained in the African Charter, for example, the right to
life, the right to equality, including corrective (affirmative) action, property rights,
the right to privacy, the right to information, to self-determination, and so on? If any,
what the extent of the inconsistency is, and, if any, what the effect of such
inconsistency is?
(d) What the effect or consequences would be, constitutionally, politically or in any
other manner, if the African Court would interpret any aspect of the African Charter,
differently to the manner in which our Constitutional Court has interpreted the same
or similar clause in Chapter 2 of the Constitution?
(e) Depending on the answers to the questions above (and the view expressed by the
workshop as quoted in the submission), does the executive or parliament,
respectively, have authority to enter into or ratify a treaty or international agreement,
which is or may be inconsistent with any provision of the Constitution?
After an analysis of the Constitution and the African Charter, the Office of the Chief
State Law Advisor proceeds to advise as follows:
(a) There is a conflict between articles 28(2) and 30 of the Protocol and section 167 of
the Constitution;
(b) once the Protocol is enacted into our domestic law, it will enjoy the same status as
any other domestic law in the Republic of South Africa under the Constitution;
(c) the rights enshrined in the Constitution are not different from the rights in the Charter
or the Protocol;
(d) the only possible difference might be the level of protection that the Charter may
accord to such rights;
(e) it is possible that the African Court can come to a different finding than the
Constitutional Court, but it seems a remote possibility;
11
(f) in the event of a conflict between the African Court and the Constitutional Court the
finding of the Constitutional Court will prevail;
(g) Parliament and the Executive are constrained by the Constitution to enter into or
ratify an international agreement that is in conflict with the Constitution; and
(h) The Republic of South Africa may ratify the Protocol subject to making reservations
to articles 28 and 30 of the Protocol.
Both the Justice and Constitutional Development Portfolio Committee of the National
Assembly and the Select Committee on Security and Constitutional Affairs of the
National Council of Provinces deliberated on the issues raised by the legal opinion and
resolved to recommend that the House approve the Protocol as provided by s.231(2) of
the Constitution but that should the Executive wish to make the declaration in terms of
article 34(6) of the Protocol accepting the competence of the Court to receive cases
under article 5(3), such a declaration should first be tabled in parliament for approval.
While noting that articles 28(2) and 30 of the Protocol and section 167 of the
Constitution could raise a potential conflict even though such conflict actually arising
was remote, both Houses of Parliament recommended approval of the Protocol for the
following reasons:
i.
the provision in the African Charter that domestic remedies be exhausted before
recourse to the Charter be sought;
ii.
the protocol will result in a complementary system of protection of human
rights, one in terms of our Constitution and the other in terms of the African
charter;
iii.
it will not be possible to appeal on human rights matters from the Constitutional
Court to the African court;
iv.
in terms of article 5 of the Protocol, only the African Commission, the state
parties and African intergovernmental organizations have direct access to the
African Court…
v.
the two systems will largely be complementary and mutually reinforcing…
12
The National Assembly adopted the recommendations without debate on 25 June and in
the National Council of Provinces on the 26th June 2002, significant the day the Freedom
Charter was adopted in 1955!
The question that arises then is whether Parliament was properly advised about the
nature, effect and obligations created by assumption to the treaty and, indeed, was there
truly a conflict of such a nature as to oblige South Africa to enter reservations? The
reports of the Portfolio Committee and the Select Committee raise other questions as to
whether they properly understood the relationship between the African Charter and the
Constitution and, ipso facto, the relationship between the African Court and the
Constitutional Court. These then are the issues which this lecture seeks to examine. My
thesis is that the Office of the Chief State Law Advisor wrongly framed the questions and
failed to appraise parliament about the true character of the domestic application of
international law. It is, as my title suggests an exercise in negotiating the hurdles and
identifying and avoiding the pitfalls in international law. Angelo in Shakespeare’s
Measure for Measure advised against using the law as a scarecrow. Law must evolve
with and be shaped by custom. Alas, Angelo himself had not reckoned with his own
human weakness and did not fully comprehend the full meaning of justice and “the very
mercy of the law….” (Act V scene1).
II
No society is free and no state is truly democratic unless human rights are actualized by every citizen.
- The Hon Justice AS Anand, Chief Justice of India5
The Vienna Convention on the Law of Treaties governs the interpretation of international
treaties. In terms of the principle of pacta sunt servanda, once the treaty comes into force,
the state parties to the treaty hold the treaty to be binding on it and that “it must be
performed by them in good faith” (article 26). In addition, Article 27 states that “a party
may not invoke the provisions of its internal law as justification for its failure to perform
5
The Domestic Application of International Human Rights Norms, Inaugural Address, Eighth Judicial
Colloquium on “The Domestic Application of International Human Rights Norms”, DEVELOPING
HUMAN RIGHTS JURISPRUDENCE, Vol 8, London: Commonwealth Secretariat/ Interights, 2001, p.1.
13
a treaty.” In other words, state parties must always act in good faith and they are obliged
to bring their municipal law into conformity with their treaty obligations. The context and
supplementary means of interpretation including preparatory work and circumstances of
adoption of the treaty are to be borne in mind. This explains the Instrument of
Ratification signed by the Minister of Foreign Affairs asserts that “the Government of the
Republic of South Africa, having considered the said Protocol, hereby confirms and
ratifies the same and undertakes faithfully to perform and carry out all the stipulations
contained therein.”
Sections 231-233 of the Constitution govern international law obligations for South
Africa. Section 231(2) states that “an international agreement binds the Republic only
after it has been approved by resolution in both the National Assembly and the National
Council of Provinces …” A resolution to this effect was passed by both houses of
parliament by 26 June 2002. Of course this does not entail that the treaty has thus been
domesticated or incorporated into municipal law. A legislative process is required as was
the case with the passage of the International Criminal Court.6 The effect of incorporation
is that the treaty becomes part of domestic law, has all the powers and privileges of
national law and may be enforced in the municipal courts at the instance of any citizen.
Clearly this is not what was intended by the ratification of the Protocol. This also means
that the African Court on Human and Peoples’ Rights does not feature in the hierarchy of
the judicial system in South Africa. It is not a court of last instance from the domestic
courts. Section 167 (3) therefore is not affected by the ratification of the Protocol.
Sections 232 and 233 therefore apply inasmuch as customary international and public
international law are concerned. South African courts have expressed themselves on this
matter exhaustively. Chief Justice Arthur Chaskalson (then President of the
Constitutional Court) stated the position in South African law as follows:
Customary international law and ratification and accession to international agreements is dealt
with in section 231 of the Constitution which sets the requirements for such law to be binding
within South Africa. In the context of section 35(1), public international law would include nonbinding as well as binding law. They may both be used under the section as tools of interpretation.
6
Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act 27 of 2002)
signed into law by the President on 18 July 2002 (Government Gazette No 23642).
14
International agreements and customary international law accordingly provide a framework within
which chapter 3 can be evaluated and understood, and for that purpose decisions of tribunals
dealing with comparable instruments, such as the United Nations Committee on Human Rights,
the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights,
the European Commission on Human Rights, and the European Court of Human Rights and in
appropriate cases, reports of specialized agencies such as the International Labour Organisation,
may provide guidance as to the correct interpretation of particular provisions of Chapter 3.7
These principles were further elaborated upon by the late Chief Justice Ismail Mohamed
(then Deputy President of the Constitutional Court) in Azapo & Others v The President of
the Republic of South Africa8 when he said
International law and the contents of international treaties to which South Africa might or might
not be a party at any particular time are, in my view, relevant only in the interpretation of the
Constitution itself, on the grounds that the lawmakers of the Constitution should not lightly be
presumed to authorize any law which might constitute a breach of the obligations of the state in
terms of international law. International conventions and treaties do not become part of municipal
law of our country, enforceable at the instance of private individuals in our courts, until and unless
they are incorporated into municipal law by legislative enactment…. Section 231(3) of the
Constitution makes it clear that Parliament agrees to the ratification of or accession to an
international agreement such agreement becomes part of the law of the country only if parliament
expressly so provides and the agreement is not inconsistent with the Constitution.
These views have resonance in other jurisdictions as Justice Anand, Chief Justice of India
so eloquently stated that “In the common law tradition, bilateral international treaties do
not automatically become part of the law of the land, except to the extent to which they
are legislatively reincarnated as part of domestic law.”
9
It must be assumed that no
parliament would adopt a resolution for the ratification of a treaty that is inconsistent with
7
S v Makwanyane and Another, 1995(6) BCLR 665 (CC). Of course, the interim Constitution (Act 200 of
1993) was then in force and references to Chapter 3 must now apply to Chapter 2, on the Bill of Rights.
Chaskalson also refers in a footnote to J Dugard: Rights and Constitutionalism: The New South African
legal Order in Dawid van Wyk et al (Eds); Juta & Co, 1994:192-195 to the sources of law recognized by
article 38(1) of the Statute of the International Court of Justice.
8
1996(1) BHRC 52 @ 65.
9
The African Charter and the Protocol attached to it, of course, are not bilateral treaties but are part of
public international law. Op cit, 2.
15
the Constitution and laws of the country without first 10seeking to render the Constitution
and the law to conform to the obligations that shall be undertaken in terms of the treaty.11
If the ratification of the Protocol does not make the African Court part of South Africa’s
court system, what then does this imply and what are the obligations that the government
has subscribed to and what are the benefits for South African citizens? When the
Republic of South Africa ratified the African Charter on Human and Peoples’ Rights in
July 1996, she undertook, in terms of Article 1 of the Charter, an obligation to “recognize
the rights duties and freedoms enshrined in this Charter and shall undertake to adopt
legislative or other measures to give effect to them.” Even without the binding force of
the court, the African Commission on Human and Peoples’ Rights could, at the instance
of a communication from an aggrieved South African citizen or an NGO with observer
status in the Commission, have declared any law or Constitution of South Africa in
10
An interesting observation can be made of the usage of international comparative case law and public
international law as an interpretative tool can be found in Mohamed v President of South Africa, 2002 (11)
BHRC 374ff (also in 2001(7) BCLR 685 (CC)). Referring to the Convention against Torture that South
Africa ratified in 10 December 1998, the Constitutional Court concluded “it (the Convention) makes no
distinction between expulsion, return or extradition of a person to another state to face an unacceptable
form of punishment. All are prohibited, and the right of a state to deport an illegal alien is subject to that
prohibition. That is the standard that our Constitution demands from our government in circumstances such
as those that existed in the present case.”
11
Just to point out, however, that these matters can be rather complicated, I refer to a dispute in the British
legal system as to whether the European Convention which was then not part of the domestic law was
applicable in British Courts, the House of Lords in R v Secretary of State for the Home Department, ex
parte Brind [1991] 1 AC 696 (HL) declared that the European Convention could not be relied upon to
review the exercise of broad delegated statutory powers, namely…, the power to censor broadcasts. To do
so, they reasoned, would be top incorporate the European Convention by the back door. A powerful
rejoinder came from Prof Rosalyn Higgins, QC now a judge of the European Court who argues that to
confine application of the Convention only to cases where there was ambiguity in relation to domestic law
would be to domesticate(in this instance meaning to tame!) international law. She wrote: “These
obligations, properly understood, are already obligations of English law. Just like other such obligations,
they will be overridden by a clear contrary directive in a statute… In short, there is not … ‘international
law’ and the ‘common law’. International law is part of that which comprises the common law on any
given subject… It cannot be right to insist … that unincorporated treaties can only be looked at where there
is an ambiguity in a statute or the common law… An unincorporated treaty can always be looked at, so
long as it is not suggested that it takes any rights away from existing under common law.” According to
Lord Lester of Herne Hill, QC: The Bangalore Cycle of Commonwealth Judicial Colloquia in Retrospect,
op cit 18 this opinion has never been followed in British courts. As if to support Prof Higgins, the Indian
Supreme Court has ruled in peoples’ Union for Civil Liberties v Union of India, that “For the present, it
would suffice to state that the provisions of the covenant, which elucidate and go to effectuate the
fundamental rights guaranteed by our Constitution, can certainly be relied upon by courts as facets of those
fundamental rights, and hence, enforceable as such. So far as multi-lateral treaties are concerned, the law
is, of course, different – and definite”, quoted in Anand: Domestic Application of International Human
Rights Norms, op cit, 5.
16
violation of the obligations set out in the Charter. This would have necessitated South
Africa to bring its domestic laws and Constitution into conformity with the Charter.
That is the experience that befell the Government of the Republic of Zambia in Legal
Resources Foundation v Republic of Zambia12.
In 1996, Zambia amended the
Constitution in order to limit the qualifications of those who were to contest the office of
President as candidates only to those who could trace their descent to both parents who
were Zambian citizens by birth or descent. It was widely accepted in Zambia at the time
that Article 34 of the Constitution was directed at preventing the former President
Kenneth Kaunda from contesting the elections. The matter was finally settled in the
Zambian Supreme Court on the basis that the petition was “attacking an Act of
Parliament on the ground that it violated part III of the Constitution relating to
Fundamental Rights…” The matter came before the African Commission who set out
their responsibility as follows:
Although international agreements are not self-executing13 in Zambia, the government of Zambia
does not seek to avoid its international responsibilities in terms of the treaties it is party to. This is
just as well because international treaty law prohibits states from relying on their national law as
justification for their non-compliance with international obligations. Likewise an international
treaty body like the Commission has no jurisdiction in interpreting and applying domestic law.
Instead, a body like the Commission may examine a state’s compliance with the treaty, in this case
the African Charter. In other words, the point of the exercise is to interpret and apply the African
Charter rather than to test the validity of domestic law for its own sake… What this does mean,
however, is that international treaties which are not part of domestic law and which may not be
directly enforceable in the national courts, nonetheless impose obligations on state parties… 14
Once the Constitutional amendment was found to be in violation of the African Charter,
the Commission “strongly urges the Republic of Zambia to take the necessary steps to
bring its laws and Constitution into conformity with the African charter” and “requests
the Republic of Zambia to report back to the Commission when it submits its next
12
Communication 211/98 in Compilation of the Decisions of the African Commission on Human and
Peoples’ Rights published by the Institute for Human Rights and Development, Banjul, 2003, p.382.
13
International treaties are self-executing, according to DJ Harris et al if the court accepts that the relevant
provision creates a right that can be relied upon directly before it without further steps being needed by way
of legislative or any other state action. Besides one also needs to examine the status of the Convention in
the legal system of the country in relation to other laws even if the law has become incorporated into
domestic law. Where the treaty so incorporated only has the status of domestic law on par with other laws,
it can be contradicted but in others it may prevail upon and above any other law that is inconsistent with it.
14
at p.391-2. This opinions is supported by exhaustive references to the decisions of United Nations treaty
bodies, decisions of the European and Inter-American Courts and academic opinions set out in the text.
17
country report in terms of Article 62 on measures taken to comply with this
recommendation.” Commenting on this recommendation, Inger Osterdahl observes, “it
contains a recommendation that constitutes a true procedural innovation and also a very
useful one.” She goes on to say that
This request is an effective means of indirectly forcing Zambia to take the measures necessary or
to face the risk of being shamed the next time it presents its state report. The Commission should
use this way of pressuring the states to take the recommended measures more often.” 15
It is heartening to report that the new Government of the Republic of Zambia has
undertaken to comply with the recommendations of the African Commission and steps
are being taken to amend the Constitution. Similar decisions were taken with regard to
the ouster clauses in the Military Decrees of the Military Dictatorship under Sani Abacha
in Nigeria, also in Mauritania and The Sudan.16
This position will apply a fortiori to the proposed African Court as this has become
customary practice in international law. A supra-national forum or tribunal like the
African Court cannot be the most effective and expedient means of enforcement of rights
in the domestic sphere. For one thing it lacks the immediacy to the local situation, it can
be bureaucratic and remote and it may be costly. For that reason, the best remedy for the
enforcement of rights is in the domestic sphere.17 It has therefore been suggested that
Implementing Human Rights in Africa: The African Commission on Human and Peoples’ Rights and
Individual Communications; 2002: Iustus Forlag Uppsala: 192.
16
It is worth noting that very few legal scholars and court decisions cite the decisions of the African
Commission in elaborating and interpreting the African Charter. The article by Nigerian scholar Nsongurua
J Udombana: Can the leopard change its spots? The African union Treaty and Human Rights; Washington
College of Law, American university International law review, 1177, is therefore welcome. More
particularly vide Media Rights Agenda, Constitutional Rights Project/Nigeria (Communications 105/93,
128/94, 130/94, 152/96), International PEN, Constitutional Rights Project, Interights and Civil Liberties
Organisation (on behalf of Ken Saro Wiwa Jr) / Nigeria (137/94, 139/94, 154/96, 161/97); Malawi
Association, Amnesty International, Ms Sarr Diop, Union Interafricaine des droits de l’homme and
RADDHO/ Collectif des veuves et ayants-droit, Association Mauritanieenne des droits de l’homme?
Mauritanie (Communications 54?91, 61/91, 98/93, 164/97, 210/98); Amnesty International, Comite Loosli
Bachelard, Lawyers Committee for Human Rights, Association of Members of the Episcopal Conference of
East Africa.
17
“But human rights treaties are not characterized by inter-state reciprocity. State parties agree
unconditionally to guarantee rights to individuals. Certain presumptions would seem to operate. Legal
rights should be justiciable. The beneficiary of a right should be able to ensure its efficacy in law. And the
easiest way for an individual to enforce his rights is before his own courts, and not before an international
tribunal.” Rosalyn Higgins in Benedetto Conforti and Francesco Francioni (Eds): ENFORCING
INTERNATIONAL HUMAN RIGHTS IN DOMESTIC COURTS; 1997: Marthinus Nijhoff Publishers, The
Hague, Boston London, 38.
15
18
where the treaty is self-executing or where it has been incorporated into domestic law,
citizens may approach the domestic courts directly for redress.18
III
One needs to understand clearly the nature of the jurisprudence of a treaty body like the
African Court. As the African Commission has stated in the Zambia decision, the task of
the Court will be to determine whether “a decision or a measure taken by a legal authority
or any other authority (of a High Contracting Party) is completely or partially in conflict
with the obligations arising from the present Convention”
19
The jurisdiction of the
African Court is spelt out in Article 3 of the Protocol which states that “The jurisdiction
of the Court shall extend to all cases and disputes submitted to it concerning the
interpretation and application of the Charter, this Protocol and any other relevant human
rights instrument ratified by the states concerned.” This provides a limitation to the
authority of the Court. It is confined to interpreting the Charter and relevant human rights
instruments ratified by the state concerned. Even though Robert Eno interprets this to
imply that the Court will enjoy extensive jurisdiction by reason of the reference to any
other human rights instruments, I do not believe so. In fact the reference to other human
rights instruments must be understood and interpreted in the context of the Charter that
provides the primary authority.20
It is important to remember that the judgment of the African Court cannot have any
cassation effect or may it directly annul or repeal any law judgment or administrative acts
by the state concerned which it considers inconsistent with or in violation of the African
Vide DJ Harris, M O’Boyle, and C Warbrick: LAW OF THE EUROPEAN CONVENTION ON HUMAN
RIGHTS; 1995: Butterworths, London, Dublin, Edinburgh, 23 where they write “international human rights
guarantees are most valuable when they are enforceable in national law. Even in the case of as successful
an international guarantee as the European Convention on Human Rights, a remedy in a national court will
inevitably be more convenient and efficient remedy than recourse to an international procedure.”
19
As per Article 50 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms.
20
Vide Robert Wundeh Eno: The Jurisdiction of the African Court on Human and Peoples’ Rights,
African Human Rights Law Journal, Vol 2 No 2 2002 p.226.
18
19
Charter. It is, however, say G Ress21 and Harris et al22 are declaratory in nature or are
‘condemnations’ insofar as in the case of a violation, the respective state has to abide by
the decision as provided for by Article 53 of the European Convention. The state has
however undertaken to “comply with the judgment in any case in which they are parties
within the time stipulated by the Court and to guarantee its execution” (Article 30). This
does not mean that the decision of the Court automatically nullifies the judgments, laws
and legal actions of the state authorities. It does require, though, that the offending state
should take steps to implement the decision within its national legal system. The real
impact and influence of the Court in domestic legal and human rights arrangements
resides in the knowledge that domestic courts may find their decisions scrutinized in the
African Court for compliance with the treaty. The African Court will necessarily set
standards that domestic courts will soon emulate. For one thing the African Charter, the
Protocol and the decisions of the Commission and the judgments of the African Court
will gain influence in the judgments of our courts. For these reasons, international human
rights law is a powerful persuasive factor in interpreting municipal laws.
Regarding the concern that the African Court may prescribe a lower level of protection to
South African citizens in relation to their enjoyment of human rights, it must be
remembered that international instruments by their nature set minimum standards.
Neither is an international instrument an unreasonable invasion of state sovereignty. For
one thing sovereignty is indeed limited by consent and by reason of international law
developments and the principle of collective security developed since 1948. Nigerian
jurist Vincent O Orlu Nmehielle counters this concern about sovereignty very effectively.
He makes out that individuals are the beneficiaries of international human rights law and
must thus be shielded from abuses of national sovereignty. Human rights law, therefore,
is an inherent limitation on the scope of sovereignty. He then refers to the advisory
opinion of the Inter-American Court of Human Rights which states that the object of
international human rights treaties “is the protection of the basic rights of individual
21
The Effects of Judgments and Decisions in Domestic Law in R St J Macdonald, F Matscher and H
Petzold (Eds): THE EUROPEAN SYSTEM OF PROTECTION OF HUMAN RIGHTS; 1993: Dordrecht,
Boston London, Martinus Nijhoff Publishers @ 802; see also a case from the Supreme Court of India
Vishaka v Rajasthan; (1998) 3 BHRC 261 @ 267 (Ind SC).
22
Supra p.26
20
human beings, irrespective of their nationality, both against the state of their nationality,
and all other contracting states.”23
In addition, the Protocol, in keeping with other similar international treaties insists on the
principle that domestic remedies must be exhausted before recourse can be had to an
international tribunal. Anne Bayefsky notes, “nothing prevents domestic human rights
standards from being superior to international law.”24 She goes on to say that “Where, on
the other hand, international law provides greater human rights protection, domestic law
can benefit from the informed and selective judicial application of international rules.”
It is a common rule of interpretation and one which our Constitution allows in s.39 (1)
and enshrined in s.233 that “when interpreting any legislation, every court must prefer
any reasonable interpretation of the legislation that is consistent with international law
over any alternative interpretation that is inconsistent with international law.” In
interpreting the Bill of Rights, s.39 (1) provides that the court must
(a) must promote the values that underlie an open and democratic society based on human
dignity, equality and freedom,
(b) must consider international law; and
(c) may consider foreign law.
It is in reference to this tradition that Justice Anand avers that
It is a proper part of the judicial process and a well-established judicial function for national courts
to have regard to the international obligations undertaken by the country in question – whether or
not these have been incorporated into domestic law – for the purpose of removing ambiguity or
uncertainty from national constitutions, legislation, or common law.25
On the matter of exhaustion of domestic remedies, the Protocol provides that the
admissibility of cases before the Court will be governed by the provisions of Article 56 of
the African Charter. Article 56, inter alia, rules that communications will be declared
admissible if they are filed “after exhausting local remedies, if any, unless it is obvious
23
Towards an African Court of Human Rights: Structuring and the Court in 6 Annual Survey of
International and Comparative Law, Spring 2000, L.27 @ 38. UN Secretary General Kofi Annan, upon
receiving the Nobel Peace Prize declared, “the sovereignty of states must no longer be used as a shield for
gross violations of human rights…”
24
INTERNATIONAL HUMAN RIGHTS LAW: Use in Canadian Charter of Rights and Freedom Litigation;
1992: Butterworths, Toronto and Vancouver;3
25
op cit p.2
21
that this procedure is unduly prolonged.” In its decisions, the Commission, in keeping
with international precedents, has elaborated on this extensively. The Commission has
ruled that a “remedy is considered available if the Complainant can pursue it without
impediment, it is deemed effective if it offers a prospect of success, and it is found
sufficient if it is capable of redressing the complainant….”26 In the European Court of
Human Rights there is an established principled articulated recently in Erkalo v The
Netherlands that
The Court reiterates that the rule of exhaustion of domestic remedies in Article 26 of the
Convention requires an applicant to have normal recourse to remedies within the national system
which are available and sufficient to afford redress in respect of the breaches alleged. The
existence of the remedies in question must be sufficiently certain not only in theory but in practice,
failing which they will lack the requisite accessibility and effectiveness. There is no obligation to
have recourse to remedies which are inadequate or ineffective. (My emphasis)
Where a state provides within its own jurisdiction a high level of judicial scrutiny, the
situation is never likely to arise that domestic remedies would not be exhausted.27 And as
such, an international tribunal serves as a forum of last resort.28
IV
To conclude, I make reference to the debate raised by Kevin Hopkins in his article, The
Effect of an African Court on the Domestic Legal Orders of African States29. Hopkins
enjoins us to consider the effect of the monism/dualism debate in the effect the
application of the treaty might have in the domestic context. In simple terms the monist is
one who argues that there is a seamless thread running through all law, being a singular
26
vide the following latest decisions against The Sudan and the authorities cited therein: Law Office of
Ghazi Suleiman, Curtis Francis Doebler/Sudan (Communications No 222/98, 228/99, 229/99, 236/2000)
27
Lord Anthony Lester, the British jurist, drawing from British experience, notes that, “In default of
effective domestic remedies for breaches of fundamental human rights, British advocates have used the
European Convention system skillfully and effectively. The European Court of Human Rights, which was
intended to be an international human rights tribunal of last resort, has, in British cases, often become a
substitute for a British constitutional court, declaring principles which have influenced the development of
the common law….” At p.18 in DEVELOPING HUMAN RIGHTS JURISPRUDENCE, Vol 8, supra.
28
Wellington District Legal services v Tangiora BHRC (3) 5 per Keith J: “In principle and in practice it is
those national means of implementation which must constitute the major means by which states give effect
to their obligations under the Covenant…. In practice that will also be so given the impossibility of a single
central body, meeting on a part-time basis, handling the vast number of human rights disputes arising
between individuals and governments around the world. The last resort character of the complaint remedies
in the covenant and the optional protocol is emphasized as well by their express requirements that domestic
remedies be exhausted before the Committee considers a communication.”
29
Published in African Human Rights Law Journal; Vol 2 No 2 2002 pp234-251.
22
conception of law. For that reason there cannot be any significant difference between
municipal and treaty law. Therefore treaty law is directly ‘incorporatable’ into municipal
law without any further act or deed except by signature. The dualists on the other hand,
perceive international law and municipal law as completely different legal systems.
Dualists tend to give international law primacy over municipal law. For that reason an act
of incorporation is essential if international law is to have currency in domestic law.
Hopkins mentions that Tiya Maluwa does not believe that much turns on this distinction
even if it were valid30. The critical question, I argue, is what a particular legal system
provides and the currency of an international treaty is regulated by the legal order at
international level, either it being a self-executing provision or it is domesticated by
incorporation. One that process is clear then the application of a treaty in the domestic
sphere is governed not in terms of its character, as monists would perceive it or that
understood by dualists. The crux of Hopkins’ questions is what direction a judge in the
national court can receive in attempting to interpret an international treaty where all the
formularies and procedures have been satisfied. The Protocol to the African Charter
comes to the judge’s aid. Article 3 states that “the jurisdiction (of the Court) shall extend
to all cases and disputes submitted to it concerning the interpretation and application of
the Charter, this Protocol and any other relevant human rights instrument ratified by the
states concerned” (my emphasis).
The judgment of the European Court in Hertel v Switzerland31 illustrates clearly the
manner in which an international tribunal undertakes its enquiry. “The Court’s task” says
Rudolf Bernhardt, President of the European Court of Human Rights on behalf of the
30
For a further and useful elaboration vide Andre Mbata B Mangu: International Human Rights Law in the
African Legal Systems in THEORIES AND PRACTICES: A Selection of Summaries of Lectures, African
Human Rights camp 2000; Compiled by Andre M Titus; HURISA, @ p.15. Mangu identified a third
stream: ‘the harmonization theory’. He holds that ‘monism’ and ‘dualism’ are not purely adopted. He cites
the provisions of the South African Constitution as examples of instances where dualism and monism are
reconciled. He observes that “The South African approach is therefore monist as regards international
customary law and international agreements of a technical, administrative, or executive nature, which do
not require either ratification or accession and do not need to be enacted into (domestic) law to become
binding on the State. It is dualist as regards any other international agreement”, at p.16 For a discussion on
self-executing treaties and application in South African law, see ME Olivier: Exploring the Doctrine of
Self-Execution as Enforcement Mechanism of international obligations; (2002) 27 SAYIL 99.
31
(59/1997/843/1049) Judgment delivered on 25 August 1998 at p.32.
23
majority of the Court, “in exercising its supervisory jurisdiction, is not to take the place
of the competent national authorities but rather to review under Article 10 the decisions
they delivered pursuant to their power of appreciation. This does not mean that the
supervision is limited to ascertaining whether the respondent State exercised its discretion
reasonably, carefully and in good faith; what the Court has to do is to look at the
interference complained of in the light of the case as a whole and determine whether it
was “proportionate to the legitimate aim pursued” and whether the reasons adduced by
the national authorities to justify it are “relevant and sufficient”… In doing so, the Court
has to satisfy itself that the national authorities applied standards which were in
conformity with the principles embodied in Article 10, and moreover, that they relied on
an acceptable assessment of the relevant facts.”
To achieve this purpose and for the state to satisfy its obligations in terms of Article 30
incorporation is not a prerequisite. That is because the nature of the enquiry in seeking
application of the treaty is not the same as if it was a national statute. The problem can
hardly arise in South Africa since the Constitution and the relevant case law directs how
international treaty law may be applied in South Africa. Even if one accepts that the
standard or threshold set by the African Court may be lower than that of South Africa’s
own Constitutional Court, the African Court merely sets a minimum standard and the
higher standard of the Constitutional Court cannot constitute a violation. The paranoia,
Hopkins is anticipating when he says that “if the African Court were allowed to secondguess the decisions of municipal courts that have adequate domestic human rights
systems in place” will never arise in part because the African Court will apply a different
enquiry. Does a particular state action violate the African Charter? It does not seek to
interpret and apply the South African Constitution. We have already heard that the
Protocol seeks to protect the individual bearer of rights against violations, either by
omission or commission, on the part of the state, the state party to the treaty. If the
African Commission, the only evidence of the thinking within African jurisprudence is
anything to go by, then it is clear that the African Court will not be using any other
24
standard as Article 60 of the African Charter prescribes as sources of inspiration.32 There
will be no doomsday scenario.
The European system has applied the twin doctrines of subsidiarity and margin of
appreciation effectively. Since Handyside33 the European Court has applied this doctrine.
In essence the doctrine allows that a certain measure of discretion to the state parties to
the Convention subject to the Court’s supervision when it applies the treaty in the
domestic arena. At the same time the margin is not elastic. The court may determine
whether the margin has been overextended or too narrow in certain instances. 34 In other
words the margin of appreciation acts as a fair limitation upon the exercise of a right.35
Of critical importance is the recognition that a supra-national court cannot be a court of
first instance, it cannot review the evidence with the same assurance as a domestic court
does, and it cannot appreciate the nuances of context as a local judge may be relied upon
to do. The national courts, therefore, “are allowed considerable discretion either under an
implied doctrine of a margin of appreciation or under a fourth instance doctrine under in
the conduct of trials in respect of such matters as the admissibility or evaluation of
evidence. Thus the Court has stated that Article 6(3) (d) generally ‘leaves it to the
competent authorities to decide upon the relevance of proposed evidence.”36 The doctrine
therefore is evidence of the principle of subsidiarity of the European Court in relationship
to the national courts. The primary and initial duty for the protection of individual rights
32
Vincent O Orlu Nmehielle dismisses this concern about which law the judge in the domestic court should
apply. Of course the judge in the domestic court will apply the law of the land as the Constitution dictates
and as the courts have interpreted. The question as far as the supra-national court is concerned is largely
irrelevant because “… like other international mechanisms, (the Court) would apply principles of
international law, which are based on international customs, rather than any particular body of common or
civil law. International law… involves an amalgam of commonly held values of all nations, rather than a
reflection of the values of any one particular legal system or philosophy”, op cit p.38.
33
Handyside v UK A 24 (1976), 1 EHRR 737. See also Hertel v Switzerland supra.
34
Vide my application of this doctrine in the application of the African Charter in “The Challenge of
Culture for Human Rights in Africa, in Malcolm Evans and Rachel Murray (Eds): THE AFRICAN
CHARTER ON HUMAN AND PEOPLES’ RIGHTS: The System in Practice, 1986-2000, at pp223ff.
35
vide Harris et all op cit 12-14.
36
Op cit at p.13-14.
25
lies with the state itself.37 The fourth doctrine also comes to the aid of those suffering
from paranoia. The European Court has made it clear that the European Court is not a
further court of appeal from the domestic jurisdiction. Therefore, an application that
merely claims that a national court has merely made an error of judgment in fact or in law
will be declared inadmissible. If the system in the European Court is anything to go by,
the fears expressed are far-fetched.38
V
It is therefore my humble opinion that the parliament did not benefit from sound advice
when it considered the Protocol to the African Charter on Human and Peoples’ Rights on
the Establishment of the African Court on Human and Peoples’ Rights for ratification. In
essence the Chief State Law Advisor misconceived the nature of the proposed African
Court, as a supra-national treaty bodies. Unfortunately, the Chief State Law Advisers did
not benefit from observing and studying the work of the African Commission whose
jurisprudence is bound to be influential in the nascent Court. The African Court of
Human and Peoples’ Rights will not be confronted with a tabula rasa. Indeed, Article 2
of the Protocol states that the Court shall “complement the protective mandate of the
Commission.” Neither did they take sufficient account of developments in the European
system of human rights protection.
If parliament had been properly advised, the Reports of the Portfolio Committee and the
Select Committee would have been different. They would have been devoid of the
defensiveness, even protectionism, almost apologetic tone of the proposal to both houses
of parliament. They would have understood that the African Court fell outside of the
court system allowed by our Constitution, that there can be no complementary system of
37
Vide also Rosalyn Higgins: The beneficiary of a right should be able to ensure its efficacy in law. And
the easiest way fro an individual to enforce his rights is before his own courts, and not before an
international tribunal”, in Beneditto Conforti & Francesco Francioni (Eds) op cit, p.38.
38
Besides Hopkins, Andre Stemmet, in “A Future African Court for Human and Peoples’ Rights and
Domestic Human Rights Norms” (1998 23 SAYIL 233-236) the state law advisor for the Department of
Foreign Affairs whose article was extensively relied upon by the Chief State Law Advisor in the legal
opinion submitted to Parliament referred to above, appear to have got it wrong. Stemmet raises the horror
scenario crisply: “If a future African Court were to overrule the highest court in the domestic jurisdiction of
a state party to the protocol on a human rights violation suffered by an individual, such a ruling could throw
the domestic human rights regime into disarray.”
26
justice if that means a parallel system, that the African Court was not a court of appeal.
Finally, they would have understood that there could be no conflict between s.167 (3) of
the Constitution and Articles 28(2) and 30 of the Protocol. They would rather have
emphasized the fact that the two systems are complementary and mutually reinforcing
and that the decisions of the African Court would be directed at the state and action to
give effect to the judgment will be essentially an administrative (and may be legislative)
and not a judicial task. To their credit, the parliamentary committees did not follow the
counsel of the Office of the Chief State Law Advisor whose opinion was that parliament
should resolve that the executive should enter reservations in respect of Articles 28(2)
and 30.
I must now confess that my purpose for selecting this topic for my inaugural lecture was
motivated by the concern that after five years since the Protocol was adopted by the 34 th
Ordinary Session of the Assembly of Heads of State and Government held at
Ouagadougou, Burkina Faso on 10 June 1998, only 7 states have ratified the treaty as 15
ratifications are required before the treaty can come into force. I fear that with counsel
like the one received from the Office of the Chief State Law Advisor, no wonder many
states are hesitant. Of the 11 SADC states that signed the treaty when it was opened for
signature, only South Africa and Mauritius have to date ratified the treaty. And yet, states
like Botswana, Lesotho, Malawi, Mozambique, Namibia, and Zambia were active
participants in the events leading up to the adoption of the treaty by the OAU in 1998
beginning in Cape Town in 1995. That, despite the entreaties of the AU Assembly of
Heads of State and Government at which many of their heads of state sit, and the Council
of Minister where they are also represented. All have consistently agreed that the African
Commission and the African Charter need to be strengthened to make the human rights
protection and promotion in Africa more effective. I hope that my lecture will prompt
many of these states to review their participation and consider urgently ratifying the
treaty.
ends
Pretoria, 5 August 2003
27
ACKNOWLEDGEMENTS:
I acknowledge with thanks the assistance of Ms Lesedi Sojane, the Librarian at the Gumede-Pitje
Human Rights Library and Documentation Centre at the South African Human Rights
Commission as well as my critical readers and colleagues Proff DH van Wyk and SBO Gutto. As
always, my PA Mrs JA Pollock assisted with the editing and design of this document. The
assistance and encouragement of the Chief State Law Advisor, Mr Enver Daniels was invaluable.
28
BIBLIOGRAPHY
&
REFERENCES
HURDLES AND PITFALLS IN INTERNATIONAL (HUMAN RIGHTS) LAW:
THE RATIFICATION PROCESS OF THE PROTOCOL TO THE
AFRICAN CHARTER ON THE ESTABLISHMENT OF THE
AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
29
BIBLIOGRAPHY & REFERENCES
1. Christof Heyns (Ed): HUMAN RIGHTS LAW IN AFRICA 1999, Kluwer Law
International; 2002: The Hague London New York.
2. Rachel Murray: THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’
RIGHTS & INTERNATIONAL LAW; 2000: HART Publishing, Oxford Portland
Oregon.
3. Malcolm Evans and Rachel Murray (Eds): THE AFRICAN CHARTER ON
HUMAN AND PEOPLES’ RIGHTS The System in Practice, 1986-2000; 2002
Cambridge University Press.
4. Inger Osterdahl: IMPLEMENTING HUMAN RIGHTS IN AFRICA: The African
Commission on Human and Peoples’ Rights and Individual Communications;
2002: Iustus Forlag Uppsala.
5. Philip Alston (Ed): THE UNITED NATIONS AND HUMAN RIGHTS: A
Critical Approach; 1992: Clarendon Press, Oxford.
6. Barry E Carter and Phillip R Tremble: INTERNATIONAL LAW: Selected
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New York.
7. Bendetto
Conforti
and
Francesco
Franconi
(Eds):
ENFORCING
INTERNATIONAL HUMAN RIGHTS IN DOMESTIC COURTS, 1997:
Martinhus Nijhoff Publishers, The Hague Boston London.
8. DJ Harris, M Oboyle, C Warbrick: LAW OF THE EUROPEAN CONVENTION
ON HUMAN RIGHTS, 1995: Butterworths; London Dublin Edinburgh.
9. R St J Macdonald F Matscher and H Petzold: THE EUROPEAN SYSTEM FOR
THE PROTECTION OF HUMAN RIGHTS; 1993: Marthinus Nijhoff Publishers
Dordrecht Boston London.
10. Anne F Bayefsky: INTERNATIONAL HUMAN RIGHTS LAW: Use in
Canadian Charter of Rights and Freedoms Litigation, 1992: Butterworths,
Toronto Vancouver.
30
11. Judicial Colloquium in Bangalore, India, 27-30 December 1998: DEVELOPING
HUMAN RIGHTS JURISPRUDENCE, Vol 8: Eighth Judicial Colloquium on
The Domestic Application of International Human Rights Norms, 2001: London;
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12. HURISA: HUMAN RIGHTS THEORIES AND PRACTICES: A Selection of
Summaries of Lectures African human Rights camp 2000 South Africa, Compiled
by Andre M Titus.
13. AFRICAN HUMAN RIGHTS LAW JOURNAL Vol 1 No 2 2001; Centre for
Human Rights University of Pretoria, Juta Law.
14. AFRICAN HUMAN RIGHTS LAW JOURNAL Vol 2 No 2 2002, Centre for
Human Rights University of Pretoria, Juta Law.
15. Christof Heyns and Frans Viljoen: “The Regional protection of Human Rights in
Africa: An Overview and Evaluation”, Unpublished essay.
16. Nsongurua J Udombana: Can the Leopard Change its Spots: The African Union
Treaty and Human Rights; 2002 17 American University International Law
Review 1177.
17. Vincent O Orlu Nmehielle: Towards an African Court of Human Rights:
Structuring and the Court; Spring 2000 6 Annual Survey International and
Comparative Law 27.
18. Institute for Human Rights and Development: COMPILATION OF DECISIONS
OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS;
Extracted from Annual Activity reports 1994-2001;
19. African Commission on Human and Peoples’ Rights: 14th ANNUAL ACTIVITY
REPORT.
20. African Commission on Human and Peoples’ Rights: 16th ANNUAL ACTIVITY
REPORT 2002-2003.
21. Institute for Human Rights and Development: COMPILATION OF DECISIONS
ON COMMUNICATIONS OF THE AFRICAN COMMISSION ON HUMAN
AND PEOPLES’ RIGHTS; 1994-2001
22. CASES CITED
 S v Makwanyane & Another; 1995 (6) BCLR 665 (CC)
31
 In Re: Certification of the Constitution of the Republic of South Africa, 1996;
1996 (10) BCLR 1253 (CC)
 AZAPO & Others v President of the Republic of South Africa & Others;
(1996) 1 BHRC 52
 Mohamed & Another v President of the RSA & Others; 2001(7) BCLR 685
(CC)
 Civil Liberties Organisation, Legal Defence and Assistance Project v Nigeria;
(218/98)
 Media Rights Agenda v Nigeria; (224/98)
 International PEN, Constitutional Rights Project, Interights and Civil
Liberties Organisation (on behalf of Ken Saro-Wiwa Jnr) v Nigeria (137/94,
139/94, 154/96, 161/97)
 Amnesty International v Zambia (212/98)
 Legal Resources Foundation v Zambia (211/98)
 Tangiora v Wellington and District Legal Services Committee; (1997) 1
BHRC 582
 Vishaka v Rajasthan; (1998) 3 BHRC 261
 Minister of Justice v Burns & Another; (2002) 11 BHRC 314
 Erkalo v The Netherlands, (89/1997/873/1085) Judgment delivered 2
September 1998.
 Hertel v Switzerland, (59/1997/843/1049), Judgment delivered 25 August
1998.
ends