T h e i m p a c t o f t h e African Charter and the Maputo Protocol in selected African states
Editor Victor Oluwasina Ayeni LLM HRDA (Pretoria), LLB (Akungba), BL (Abuja) Doctoral Candidate, Centre for Human Rights, University of Pretoria
2016 Title: The impact of the African Charter and the Maputo Protocol in selected African states
Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.
For more information on PULP, see www.pulp.up.ac.za
Printed and bound by: BusinessPrint, Pretoria
To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 12 362 5125 [email protected] www.pulp.up.ac.za
Cover: Yolanda Booyzen, Centre for Human Rights
ISBN: 978-1-920538-47-7
© 2016
Printed in the Republic of South Africa Seventeen countries covered in this book TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
The Gambia...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v Mauritius...... 165 Meskerem Geset Techane Roopanand Mahadew
Nigeria...... 183 Victor Oluwasina Ayeni
Sierra Leone...... 203 Augustine Sorie Marrah
South Africa...... 215 Ofentse Motlhasedi Linette du Toit
Swaziland...... 233 Dumsani Dlamini Sizakele Hlatshwayo
Tanzania...... 249 Grace Kamugisha Kazoba Charles Mmbando
Uganda ...... 263 Agaba Daphine Kabagambe
Zimbabwe...... 281 Tarisai Mutangi
Conclusion ...... 297 Victor Oluwasina Ayeni
Bibliography ...... 315
Questionnaire used for the study...... 329 PREFACE
This book assesses the impact and effectiveness of the African Charter on Human and Peoples’ Rights (African Charter) and the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) in 17 African countries, namely Burkina Faso, Cameroon, Côte d’Ivoire, Ethiopia, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauri- tius, Nigeria, Sierra Leone, South Africa, Swaziland, Tanzania, Uganda and Zimba- bwe. Apart from the introductory and concluding chapters, each chapter of the book is devoted to the impact of the African Charter and the Maputo Protocol in a particular state. The chapters are structured according to the 15 research questions included in the study questionnaire that was provided to researchers. Typically, each chapter begins with an introduction which provides a background and overview of the general context of human rights and the situation of women in the study country. The concluding part of each country chapter highlights the factors which have impeded or enhanced the impact of the African Charter and Maputo Protocol in that country. The Centre for Human Rights intends to use this research as the basis for a continu- ously updated database on the impact of the African Charter and Maputo Protocol. The ‘first edition’ of this book, published under the title ‘The impact of the African Charter and Women’s Protocol in selected African states’, appeared in 2012 and covered the following 19 countries: Benin, Burkina Faso, Cameroon, Chad, Congo, Côte d’Ivoire, Eritrea, Gambia, Kenya Lesotho, Mauritius, Mozambique, Niger, Nigeria, Rwanda, Senegal, Sierra Leone, South Africa and Zimbabwe. This edition is essentially an exten- sion and a reworking of the first edition. Some new country chapters - Ethiopia, Ghana, Malawi, Swaziland, Tanzania and Uganda – have been introduced, while some country chapters - Benin, Chad, Congo, Eritrea, Mozambique, Niger and Senegal – have been dropped due to our inability to find suitable researchers from those countries within the period the research was carried out. We therefore invite anyone who has any information to supplement, update or correct the information in this publication to contact us at [email protected] or hrda.alum- [email protected]. Information about the impact of the African Charter and Maputo Proto- col in countries not covered in this publication is also welcome.
vii The researchers for both editions are mostly alumni of the Master’s programme in Human Rights and Democratisation in Africa, presented by the Centre for Human Rights, Faculty of Law, University of Pretoria. The first edition of this publication was based on research conducted as part of ‘The State of the Union’ initiative, supported by OXFAM whose financial contribution is gratefully acknowledged. The support of the Norwegian government in developing and publishing this edition of the publication is also gratefully acknowledged. ACRONYMS
ACDHRS African Centre for Democracy and Human Rights Studies
ACERWC African Committee of Experts on the Rights and Welfare of the Child
ACHPR African Commission on Human and Peoples’ Rights
AHRLJ African Human Rights Law Journal
AHRLR African Human Rights Law Reports
AIDS Acquired Immune Deficiency Syndrome
APRM African Peer Review Mechanism
AU African Union
CALS Centre for Applied Legal Studies
CANGO Co-ordinating Assembly of Non-Governmental Organisations
CEDAW Convention on the Elimination of all forms of Discrimination against Women
CERD Committee on the Elimination of Racial Discrimination
CESCR Committee on Economic, Social and Cultural Rights
CHR Centre for Human Rights
CHRAGG Commission for Human Rights and Good Governance
CHRPA Commission on Human Rights and Public Administration
CRC Convention on the Rights of the Child
CSO Civil Society Organisation
ix CSVR Centre for the Study of Violence and Reconciliation
ECCJ ECOWAS Community Court of Justice
ECHR European Convention on Human Rights
ECOWAS Economic Community of West African States
EHRC Ethiopian Human Rights Commission
ESCR Economic, Social and Cultural Rights
EVD Ebola Virus Disease
FGM Female Genital Mutilation
FIDA International Federation of Women Lawyers
FLAG Female Lawyers Association of Gambia
HIV Human Immunodeficiency Virus
HRCSL Human Rights Commission of Sierra Leone
HRDA Human Rights and Democratisation in Africa
ICCPR International Covenant on Civil and Political Rights
IHRDA Institute for Human Rights and Development in Africa
ILO International Labour Organisation
KNCHR Kenya National Commission on Human Rights
LLM Legum Magister (Master of Laws)
LRC Law Reform Commission
LRC Legal Resources Centre
NCHRF National Commission on Human Rights and Freedoms
NEPAD New Partnership for Africa’s Development
NGO Non Governmental Organisation
NHRC National Human Rights Commission
NHRI National Human Rights Institutions
NIA National Intelligence Agency NRM National Resistance Movement
OHCHR United Nations Office of the High Commissioner for Human Rights
OSIWA Open Society Initiative for West Africa
SAHRC South African Human Rights Commission
SALC Southern Africa Litigation Centre
SERAC Social and Economic Rights Action Centre
SERAP Socio-Economic Right Accountability Project
SRRWA Special Rapporteur on the Rights of Women in Africa
UDHR Universal Declaration of Human Rights
UHRC Uganda Human Rights Commission
UN United Nations
UPR Universal Periodic Review
US United States
ZLHR Zimbabwe Lawyers for Human Rights
ZSC Zimbabwe Supreme Court
ZWLA Zimbabwe Women Lawyers Association TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v INTRODUCTION AND PRELIMINARY OVERVIEW OF FINDINGS
Victor Oluwasina Ayeni*
1 Background have turned many countries into thea- tres of war, the importance of periodic review of the domestic impact of human One of the most explicit and accurate rights treaties cannot be overempha- predictors of the effectiveness of an sised. This book singles out two of the international human rights treaty regime main regional human rights treaties in is the extent to which the treaty has Africa – the African Charter on Human influenced policy making, legislative and Peoples' Rights (African Charter or actions, court decisions and civil society Charter) and the Protocol to the African activities at the domestic level.1 Easy as Charter on the Rights of Women in it may sound, establishing a causal link Africa (Maputo Protocol or Protocol) – between a treaty regime and an observ- and assesses the extent to which 17 able behaviour of state actors is a very states in Africa have given effect to their difficult yet important task. As Cassel obligations under these two treaties. has rightly pointed out, ‘the institutions of human rights deserve our energetic The extent to which human rights support only to the extent that they treaties have been effective at the contribute meaningfully to protection of domestic level is an important enquiry rights, or at least promise eventually to not only to take stock of the progress so do so’.2 In Africa where the scourge of far made but also to better understand poverty, sectarian crisis, political insta- the potential roles and challenges of bility, corruption and poor governance human rights treaties in the future. For these and other reasons, the domestic impact of human rights treaties has continued to receive sustained attention from academic writers, research centres and donor organisations in the last two * LLM HRDA (Pretoria), doctoral candidate, decades. Some of the existing studies on Centre for Human Rights, University of the impact of international human rights Pretoria. Email: [email protected]. 1 CH Heyns & FJ Viljoen (eds) The impact of the treaties involve quantitative analysis of United Nations human rights treaties on the the impact of selected treaties in a domestic level (2002) 1; F Viljoen International human rights law in Africa (2007) 529. numbers of countries over a period of 2 D Cassel ‘Does international human rights law make a difference?’ (2001) 2 Chicago Journal of International Law 121.
1 2 Introduction time.3 There are also qualitative coun- the treaty.6 This is in sharp contrast to try-specific studies analysing the domes- first-order compliance which is limited tic effects of global, regional and sub- to compliance with the substantive regional human rights treaties.4 In provisions of a treaty.7 recent times, there has been growing engagement with ‘second-order compli- What have we learned from the ance’ at the global, regional and sub- various studies on the domestic effects regional level.5 Second-order compli- of human rights treaties? While interna- ance refers to compliance with the deci- tional human rights law is generally sions of an authoritative body charged assumed to have a constraining effect on 8 with the responsibility of interpreting state behaviour, empirical evidence provisions of a treaty or resolving tends to suggest that the effect of treaties disputes arising from implementation of on human rights practices at the state level is negligible.9 In fact, some studies find that human rights practice at the domestic level may actually worsen or degenerate following ratification of human rights treaties.10 These findings 3 EM Hafner-Burton & K Tsutsui ‘Human prompt the question: why would states rights in a globalizing world: The paradox of empty promises’ (2005) 110 American Journal invest such great resources into adopting of Sociology 1373; OA Hathaway ‘Do human human rights treaties if these treaties rights treaties make a difference?’ (2002) 111 make no difference to their citizens? Yale Law Journal 1935; LC Keith ‘The United 11 Nations International Covenant on Civil and Thankfully, qualitative studies and Political Rights: Does it make a difference in human rights behavior?’ (1999) 36 Journal of more recent quantitative research have Peace Research 95 95. shown some optimism, suggesting that 4 Heyns & Viljoen (n 1 above); C Heyns & human rights treaties do give rise to F Viljoen ‘The impact of the United Nations 12 human rights treaties on the domestic level’ positive consequences. However, a (2001) 23 Human Rights Quarterly 484; OC Okafor The African human rights system, activist forces and international institutions 6 See C Romano, K Alter & Y Shany (eds) (2010); VO Ayeni ‘Domestic impact of the Oxford handbook of international adjudication African Charter on Human and Peoples’ (2014) 377; R Fisher Improving compliance with Rights and the Protocol on the Rights of international law (1981); MP Ryan ‘The logic Women in Africa: A case study of Nigeria’ of second order compliance with inter- unpublished LLM Dissertation, University of national trade regimes’ Working Paper No 694 Pretoria, 2011; FN Kabata ‘Impact of of the University of Michigan (1992) 2-3. international human rights monitoring 7As above. mechanisms in Kenya’ unpublished LLD 8 BA Simmons & D Hopkins ‘The constraining thesis, University of Pretoria, 2015; Centre for power of international treaties: Theory and Human Rights Impact of the African Charter and methods’ (2005) 99 American Political Science the Women’s Protocol in selected African states Review 623; BA Leeds ‘Alliance reliability in (2012). times of war: Explaining state decisions to 5 See C Paulson ‘Compliance with final violate treaties’ (2003) 57 International judgments of the International Court of Organization 801; BA Simmons ‘International Justice since 1987’ (2004) 98 American Journal law and state behaviour: Commitment and of International Law 434; C Hillebrecht compliance in international monetary affairs’ Domestic politics and international human rights (2000) 94 American Political Science Review 819. tribunals: The problem of compliance (2014) 3; 9 Hafner-Burton & Tsutsui (n 3 above); J Donnelly International human rights (2007) 1; Hathaway (n 3 above); Keith (n 3 above). F Viljoen & L Louw ‘State compliance with 10 As above. the recommendations of the African 11 Heyns & Viljoen (n 1 above); T Risse, Commission on Human and People's Rights, SC Ropp & K Sikkink The persistent power of 1994-2004’ (2009) 7 International Journal of human rights (2013); T Risse, SC Ropp & K Civil Society Law 22; HS Adjolohoun ‘Giving Sikkink The power of human rights (1999). effect to the human rights jurisprudence of the 12 E Neumayer ‘Do international human rights Court of Justice of the Economic Community agreements improve respect for human of West African states: Compliance and rights?’ (2005) 49 Journal of Conflict Resolution influence’ unpublished LLD thesis, 925; BA Simmons Mobilising for human rights University of Pretoria, 2013 8. (2009); Hillebrecht (n 5 above). Impact of the African Charter and the Maputo Protocol in selected African states 3 key finding of all major research on the so.15 Power, coercion and self-interest domestic effects of international human are what make international human rights treaties is that treaty effects are rights treaties have an effect at the seldom unconditional. Treaty effects are domestic level, according to realists. believed to be conditional on state-level Another strand of the rational choice characteristics and factors related to the theory – institutionalism – relies on treaty regime.13 states’ cooperation instead of power or coercion. While institutionalists agree What mechanisms and conditions that states are self-interested rational make domestic effect or impact of inter- actors, they differ from realists in that national human rights treaties more like- they believe cooperation between states ly? Several theories have been proposed is possible, and that states may comply to explain the process by which interna- voluntarily with their international obli- tional law may have effects at the gations within the framework of that domestic level. These theoretical cooperation if it is in their interests to do approaches may be divided broadly into so.16 One important consequence of two, namely rational choice theory and institutionalism as a theory is that it constructivist theory, also referred to as draws the attention of international the normative theory. While the rational lawyers to the role of two important choice theory emphasises material factors of international cooperation – incentives, hegemonic power, sanctions reputation and reciprocity.17 For and self-interest as the primary drivers Guzman, states comply with interna- of states’ compliance with treaty obliga- tional human rights treaties mainly tions, constructivists argue that states because of reputational concerns and comply with human rights treaties fear of sanctions.18 Hathaway argues because of normative considerations that states comply with international such as the persuasive powers of human law as a result of enforcement and rights obligations, repeated transnation- ‘collateral consequences’ such as repu- al interactions, argumentation and tation, development assistance and trade states’ continuous exposure to norms.14
One of the earliest strands of the rational choice theory is realism. For 15 See generally, OR Young ‘The effectiveness of realists, states generally comply with international institutions: Hard cases and critical variables’ in JN Rosenau & their international obligations whenever E-O Czempiel (eds) Governance without it is in their interests or in the interests government: Order and change in world politics (1992) 160; OR Young Compliance and public of a more powerful state for them to do authority: A theory with international applications (1979); L Henkin How nations behave (1979); HJ Morgenthau Politics amongst nations: The struggle for power and peace (1978); H Simon Models of man: Social and rational-mathematical essays on rational human behaviour in a social setting (1957) 200-204. 16 RO Keohane After hegemony (1984); D Snidal 13 DW Hill ‘Estimating the effects of human ‘The limits of hegemonic stability theory’ rights treaties on state behaviour’ (2010) 72 (1985) 39 International Organisation 579. Journal of Politics 1161; GW Downs, 17 A-M Slaughter ‘International relations, DM Rocke & PN Barsoom ‘Is the good news principal theories’ www.princeton.edu/~slau about compliance good news about ghtr/Articles/722_IntlRelPrincipalTheories_ cooperation?’ (1996) 50 International Slaughter_20110509zG (accessed 18 Nov- Organization 379; Simmons (n 12 above). ember 2015). 14 ES Bates ‘Sophisticated constructivism in 18 AT Guzman ‘A compliance-based theory of human rights compliance theory’ (2015) 25 international law’ (2002) 90 California Law European Journal of International Law 1170. Review 1849. 4 Introduction interests.19 Based on the rational choice ble democracies tend to support human theory, Hafner-Burton argues that rights treaty regimes to ‘lock in’ demo- human rights treaty obligations are most cratic gains and ‘signal’ human rights likely to be complied with by states commitment as well as an intention to when such obligations are tied to consolidate democratic institutions.25 economic benefits, for instance trade.20 More recently, Simmons has Another variety of the rational confirmed Moravcsik’s findings. She choice theory is liberalism.21 The main argues that treaties do not have the same thrust of the liberal theory is that state- effects in all countries and that the inter- level characteristics matter in determin- national human rights system will have ing whether or not human rights treaties its greatest domestic impact in countries will have an effect at the domestic which are neither stable autocracies nor level.22 Liberal theorists believe the stable democracies but are partial unique nature of ‘liberal states’ make democracies and transitioning human rights treaties more likely to regimes.26 This, she reasons, is because have greatest effect in those states.23 in stable democracies, although citizens However, more recent work by liberal have the means to employ human rights theorists has demonstrated that the treaties for social mobilisation, the conditions that make human rights trea- motive is usually absent. In stable autoc- ties effective at the domestic level are racies, by contrast, citizens have the complex and go further than merely motive to use international human categorising states as liberal or illiberal. rights treaties to demand change but Moravcsik, for instance, found that generally lack the means to do so.27 human rights treaties are more likely to attract support and have an impact in Constructivist or normative theo- newly established and unstable democ- ries, on the other hand, focus primarily racies than in long-standing democracies on identity, ideas, beliefs, the role of and autocratic states.24 The reason for social norms, non-state actors and inter- 28 this is that newly established and unsta- national institutions. One of the earli- est normative theories came from Chayes and Chayes. They argued that 19 OA Hathaway ‘Between power and principle: An integrated theory of international states’ non-compliance with internation- law’(2005) 72 University of Chicago Law Review al treaties is an endemic problem rather 506. 20 EM Hafner-Burton ‘Trading human rights: than the result of a cost-benefit analysis How preferential trade agreements influence as the rational choice theorists government repression’ (2005) 59 International 29 Organization 633. claimed. The causes of non-compli- 21 Hathaway (n 3 above) 1952. 22 Slaughter (n 17 above). 23 Slaughter (n 17 above); Hathaway (n 3 above); 25 Moravcsik (n 24 above); Simmons (n 12 A Moravcsik ‘Taking preferences seriously: A above) 65; T Ginsburg ‘Locking in liberal theory of international politics’ (1997) democracy: Constitution, commitment and 51 International Organisation 513; A-M Slaugh- international law’ (2006) 38 New York ter ‘The liberal agenda for peace: University Journal of International Law and International relations theory and the future Politics 707; DH Moore ‘A signalling theory of of the United Nations’ (1995) 4 Transnational human rights compliance’ (2003) 97 and Contemporary Problems 377; A-M Slaugh- Northwestern University Law Review 879. ter ‘International law in a world of liberal 26 Simmons (n 12 above) 16-17 & 360. states’ (1995) 6 European Journal of 27 As above. International Law 503. 28 Slaughter (n 17 above). See also JT Checkel 24 A Moravcsik, ‘The origins of human rights ‘The constructivist turn in international regimes: Democratic delegation in Postwar relations theory’ (1998) 50 World Politics 324. Europe’ (2000) 54 International Organization 29 A Chayes & AH Chayes ‘On compliance’ 228. (1993) 47 International Organization 204. Impact of the African Charter and the Maputo Protocol in selected African states 5 ance, according to Chayes and Chayes, and the lack of economic interest and are ambiguity and indeterminacy of political will.35 treaty language, lack of capacity, and the temporal dimension of the obliga- More recent scholarship on the tions imposed by treaties.30 In order to domestic effects or impact of interna- improve state’s compliance with treaty tional human rights treaties tends to obligations, Chayes and Chayes integrate constructivist perspectives with proposed that the ‘enforcement model’ rational choice models. This new should be replaced with a ‘managerial approach has been described as modern 36 model’ that entails the use of ‘iterative constructivism. For instance, in his process of justificatory discourse’. They analysis of how democratic states recommended the following instruments respond to judgments of the European to manage states’ compliance with their Court of Human Rights (ECtHR), Von obligations: transparency, reporting, Staden concluded that states demon- monitoring, dispute settlement and stra- strate a normative sense of obligation to tegic review, amongst others.31 abide by the ECtHR’s judgments yet exploit various instrumental and costs- Another normative theorist, Thom- saving options to comply as little as as Franck, contends that fairness and possible.37 Risse, Ropp and Sikkink legitimacy are the elements of a treaty proposed a ‘spiral model’ of human that exerts a compliance pull on states.32 rights change.38 The spiral model is a A relatively recent normative perspec- five-phase process involving state repres- tive called the ‘transnational legal sion, denial, tactical concession, process’ theory was offered by Howard prescriptive status and rule-consistent Koh.33 Transnational legal process is a behaviour.39 State repression activates three-part process of interaction, interpre- transnational activist networks that use tation, and internalisation whereby inter- information politics to pressure repres- national treaties are interpreted through sive governments. At first, the govern- the interactions of transnational actors ment denies repression before making and then internalised into the domestic some tactical concessions. Using the legal system.34 Koh believe the reasons concessions, activist networks push for states fail to comply with international more concession by urging the govern- law include vagueness of the norms, ment to recognise and embrace more toothless mechanisms, weak regimes human rights and democratic govern- ance standards. The final stage of the spiral model is the rule-consistent behav- iour phase, where the state begins to 30 As above. internalise human rights norms through 31 A Chayes & AH Chayes The new sovereignty: behavioural change and sustained Compliance with international regulatory agreements (1995) 135. 32 T Franck Fairness in international law and 35 See Koh ‘How is international human rights institutions (1995); T Franck The power of law enforced?’ (n 33 above) 1398. legitimacy among nations (1990) 24. 36 Bates (n 14 above) 1181. 33 See HH Koh ‘How is international human 37 A von Staden ‘Rational choice within rights law enforced?’ (1999) 74 Indiana Law normative constraints: Compliance by liberal Journal 1398; HH Koh ‘The 1998 Frankel democracies with the judgments of the Lecture: Bringing international law home’ European Court of Human Rights’ SSRN (1998) 35 Houston Law Review 626; HH Koh eLibrary 6 February 2012. ‘The 1994 Roscoe Pound Lecture: 38 Risse, Ropp & Sikkink The power of human Transnational legal process’(1996) 75 rights (n 11 above) 8. Nebraska Law Review181. 39 Risse, Ropp & Sikkink The power of human 34 As above. rights (n 11 above) 6. 6 Introduction compliance.40 Although the spiral zation of African Unity (OAU), now the model is largely a constructivist proposi- African Union (AU), on 27 June 1981, tion, the authors juggle both instrumen- and came into force on 21 October tal and normative incentives in their 1986. All 54 member states of the Afri- theory. The spiral model, for example, can Union, with the exception of the comprises the following mechanism of newcomer South Sudan, are state social action and human rights change: parties to the African Charter.49 coercion, sanctions, incentives, persua- sion and capacity building.41 When compared with human rights instruments at the global level and with This hybrid constructivist-rationalist other regional systems, the African approach is also noticeable in recent human rights system and the African works of Simmons,42 Hillebrecht,43 Charter are unique in a number of Goodman and Jinks,44 Cardenas,45 ways.50 The Charter contains both civil Alter,46 and Hafner-Burton,47 all of and political rights as well as economic, which view compliance with human social and cultural rights, and both of rights treaties as largely a function of these two ‘generations of rights’ are domestic politics, rather than transna- justiciable. Another distinctive feature tional interactions. One important of the African Charter is the notion of theme that is common to all domestic peoples’ rights or what some writers politics theories is the integration of refer to as ‘solidarity rights’.51 Unlike constructivist perspectives with rational- other international human rights trea- ist propositions. ties, the African Charter does not allow
2 The African Charter and the Maputo Protocol
The African human rights system is 48 Constitutive Act of the African Union 2000, 48 Protocol to the African Charter on Human based mainly on the African Charter. and Peoples’ Rights on the Rights of Women The Charter was adopted by the Organi- in Africa 2003, Convention on Prevention and Combating Corruption 2003, African Charter on Democracy, Elections and Good 40 As above. Governance 2007, and the AU Convention 41 Risse, Ropp & Sikkink (n 11 above) 12-16. for the Protection of and Assistance of 42 Simmons (n 12 above). Internally Displaced Persons 2009, amongst 43 Hillebrecht (n 5 above). others. 44 R Goodman & D Jinks Socializing states: 49 South Sudan has signed the Charter but yet to Promoting human rights through international law ratify it. See http://www.au.int/en/treaties (2013). (accessed 15 November 2015). 45 S Cardenas Conflict and compliance: State 50 M Mutua ‘The Banjul Charter and the responses to international human rights pressure African cultural fingerprint: An assessment of (2007). the language of duties’ (1995) 35 Virginia 46 K Alter ‘Tipping the balance: International Journal of International Law 339. courts and the construction of international 51 P Alston ‘A third generation of solidarity and domestic politics’ (2011) 13 Cambridge rights: Progressive development or Yearbook of European Legal Studies 1. obfuscation of international human rights 47 E Hafner-Burton Making human rights a reality law?’ (1982) 29 Netherlands International Law (2013). Review 307; K Vasak ‘For the third generation 48 Other human rights instruments in Africa of human rights: The rights of solidarity’ include: OAU Convention Governing the Inaugural Lecture to the Tenth Study Session of the Specific Aspects of Refugee Problems in International Institute of Human Rights Africa 1969, Cultural Charter for Africa 1976, Strasbourg, 2-27 July 1979; BE Winks ‘A African Charter on the Rights and Welfare of covenant of compassion: African humanism the Child 1990, Protocol to the African and the rights of solidarity in the African Charter on Human and Peoples’ Rights on Charter on Human and Peoples’ Rights’ the Establishment of the African Court on (2011) 11 African Human Rights Law Journal Human and Peoples’ Rights 1998, the 447. See arts 19-24 of the African Charter. Impact of the African Charter and the Maputo Protocol in selected African states 7 derogations from its provisions, even in country-specific resolutions.56 More situation of emergency.52 recently, the African Court on Human and Peoples’ Rights (African Court) was The African Charter established the established to complement the Commis- African Commission on Human and sion’s protective mandate.57 Assessing Peoples’ Rights (African Commission or the impact or the extent to which states Commission) as its primary supervisory have given effect to the innovative mechanism and vests in the Commis- provisions of the African Charter, the sion both promotional and protective various works of the African Commis- 53 mandates. The Commission is sion and the emerging jurisprudence of mandated by the Charter to promote the African Court is certainly an inter- and protect human rights in Africa, esting inquiry. interpret the provisions of the Charter and perform any other tasks assigned to One of the major shortcomings of it by the OAU Assembly of Heads of the African Charter is that its normative States and Government (now AU content with respect to the protection of Assembly).54 The Commission was women’s rights is inadequate.58 The formally inaugurated on 2 November only specific reference to women in the 1987. As of November 2015, the Charter is a provision dealing with the Commission has received close to 500 family.59 Some writers have argued that communications, of which more than this implies that the drafters of the Char- half have been finalised; and has found ter viewed women only within the fami- violations in 83 communications, ly context.60 In order to compensate for involving 27 states that are parties to the this normative inadequacy and also to African Charter.55 The Commission has improve the implementation of the also issued at least 41 concluding obser- human rights provisions enshrined in vations, 72 mission reports and not less the Charter, the Maputo Protocol was than 293 thematic, administrative and adopted.61 The Protocol was adopted on 11 July 2003 in Maputo, the capital
56 African Commission ‘Documents’ http:// 52 See Commission nationale des droits de l’Homme www.achpr.org/search/ (accessed 15 Nov- et des libertés v Chad (2000) AHRLR 66 ember 2015). (ACHPR 1995) para 21. 57 See Protocol to the African Charter on 53 See art 45 of the African Charter. Human and Peoples’ Rights on the 54 As above. Establishment of the African Court on 55 See African Commission on Human and Human and Peoples’ Rights (1998) art 1. People’s Rights ‘Communications’ http:// 58 See I Eze-Anaba ‘Domestic violence and www.achpr.org/communications/ (accessed legal reforms in Nigeria: Prospects and 26 August 2015); IHRDA African human rights challenges’ (2007) 14 Cardozo Journal of Law & case law analyser http://caselaw.ihrda.org/ Gender 31; F Viljoen ‘An introduction to the body/acmhpr/ (accessed 26 August 2015). In Protocol to the African Charter on Human its 32nd and 33rd (joint) activity report and Peoples’ Rights on the Rights of Women adopted by the Executive Council of the AU in Africa’ (2009) 16 Washington & Lee Journal in January 2013, the Commission reported of Civil Rights & Social Justice 17; Viljoen (n 1 that since inception, it has handled a total of above) 269. 426 Communications and concluded 210 59 See art 18 of the African Charter. Communications. As at December 2014, the 60 K Stefiszyn & A Prezanti The impact of the Commission had 89 pending communi- Protocol on the Rights of Women in Africa on cations. See Statement by the Chairperson of violence against women in six selected Southern the African Commission on Human and African countries: An advocacy tool (2009) 2. Peoples’ Rights on the human rights situation 61 See Viljoen (n 1 above) 268. See also in Africa (28th Session of The United Nations Preamble to the Protocol; F Banda ‘Brazing a Human Rights Council) http://www.achpr. trail: The African Protocol on Women’s org/news/2015/04/d171 (accessed 8 Sep- Rights comes into force’ (2006) 50 Journal of tember 2015). African Law 72; MS Nsibirwa ‘A brief analysis 8 Introduction city of Mozambique. This is why the Protocol was carried out by Stefiszyn Protocol is often referred to as the and Prezanti in 2009, but the study was Maputo Protocol. After achieving the limited to only six Southern African required 15 ratifications, the Maputo countries.64 Protocol came into force on 25 Novem- ber 2005. Just over ten years later, in In 2011, on the occasion of 25 years 2016, the Protocol has been ratified by since the entry into force of the African 36 states.62 Fifteen states signed but Charter, the Centre for Human Rights, have not yet ratified the Protocol and through its network of alumni, conduct- three states have neither signed nor rati- ed a study on the impact of the African fied the Protocol.63 Charter and the Maputo Protocol in selected African states.65 The findings Like the African Charter, the Mapu- included that lack of awareness and use to Protocol also contains innovative of the African Charter and the Maputo provisions. These include the legal Protocol, as well as the jurisprudence of prohibition of female genital mutilation the African Commission, were primary (FGM) and an authorisation of medical causes of the minimal impact of the abortion in instances of rape, incest, African Charter and the Maputo Proto- sexual assault and where a pregnancy col in the selected states. The study, endangers the health or life of the moth- however, noted the growing use of the er. The Protocol is also the first legally Charter and the Protocol by civil society binding human rights treaty to make organisations in the study countries. explicit reference to HIV/AIDS. In One of the points that came out clearly addition to these innovative provisions, from the study was the need for periodic the Protocol addresses human rights review of the impact of the African issues such as polygamy, violence Charter and the Maputo Protocol in all against women, child marriage, harmful member states of the African Union. practices, widowhood practices, This book, which is a follow up edition women's inheritance, women’s econom- of the same study, is intended to update ic empowerment, the political participa- the existing research database on the tion of women, women in distress and impact of the African Charter and the women in situations of armed conflict. Maputo Protocol in selected African Although 36 countries have ratified both states. the African Charter and the Maputo Protocol, not much is known about the 3 Conceptual clarification and measures these states have taken to methodology bring their domestic legal systems and policies in line with the Charter and the A number of terminologies are used in Protocol. One of the first major studies this book. These concepts are likely to on the domestic impact of the Maputo be misunderstood unless their contextu- al meaning is clarified. These include 61 of the draft protocol to the African Charter on ‘compliance’, ‘implementation’, ‘follow- Human and Peoples’ Rights on the rights of women’ (2001) 1 African Human Rights Law up’, ‘impact’ and ‘effectiveness’ of Journal 41. human rights treaties. 62 African Union ‘List of countries which have signed, ratified/acceded to the African Charter on Human and Peoples’ Rights’ http://www.au.int/en/treaties (accessed 15 November 2015). 64 Stefiszyn & Prezanti (n 60 above). 63 As above. 65 See Centre for Human Rights (n 4 above). Impact of the African Charter and the Maputo Protocol in selected African states 9
In simple terms, compliance with a actors.70 It comprises both direct and human rights treaty may be defined as indirect effects of a treaty.71 Direct conformity between the provisions of a effects of a treaty refer to the conscious treaty and observed behaviours at the and deliberate measures taken to imple- domestic level. In the context of interna- ment or comply with treaty norms, tional human rights adjudication, including decisions of treaty monitoring compliance is conformity between a bodies. Indirect effects on the other remedial order prescribed in a decision hand consist of more than mere compli- of an international human rights moni- ance with or implementation of the toring body on the one hand, and state provisions of a human rights treaty. behaviour or factual situation at the Indirect effects encompass the incre- domestic level, on the other hand. mental use and more subtle influences Implementation of treaties entails the of the treaty – for instance through process of taking steps or measures, academic writing, references to the trea- whether legislative, judicial or adminis- ty in news reports, use by civil society trative, to give effect to the provisions of and the general level of awareness by a treaty, including the decisions of a members of the public. A treaty may tribunal established under that treaty.66 have a low compliance rate but very Implementation is the process while high impact. compliance is the outcome. Ideally, compliance results from implementa- Throughout this book, the following tion. This however is not always the terms – ‘impact’, ‘effect’ and ‘influence’ case. As Okafor has noted, compliance – are used interchangeably. When we may not happen in the same way a twist talk about the impact of the African to the hand causes pain.67 More often Charter and the Maputo Protocol, we than not, compliance is the result of refer to the totality of effects or influenc- coincidence, inadvertence or reasons es that these treaties have had at the extrinsic to a legal rule.68 Follow up is a domestic level. These terms should process of facilitating implementation.69 however be distinguished from ‘effec- It is assumed that follow up improves tiveness’. In the context of international implementation, which in turn increases human rights treaties, effectiveness is the compliance rate. Both domestic and the extent or degree to which a treaty transnational actors may be involved in induces a desired change that furthers 72 follow up, whereas implementation and the goals of such treaty. Arguably, a compliance are essentially domestic treaty may have effects which do not affairs. significantly advance the goals of the treaty.73 In fact, some empirical studies The impact of an international trea- have shown that a treaty may have a ty is the totality of effects that the treaty negative impact on the situation of has on the actions of state and non-state human rights in a particular state even
66 See M Burgstaller Theories of compliance with 70 Heyns & Viljoen (n 4 above) 484-485. international law (2004) 4. 71 As above. 67 Okafor (n 4 above) 116-117. 72 See Murray & Long (n 69 above) 29; 68 K Raustiala ‘Compliance and effectiveness in Raustiala (n 68 above) 393-394. international regulatory cooperation’ (2000) 73 The African Charter arguably has had a huge 32 Case Western Reserve Journal of International impact on tourism in The Gambia. However, Law 391. improving tourism in The Gambia is not one 69 See R Murray & D Long The implementation of of the goals of the African Charter. This is one the findings of the African Commission on Human of the instances where high impact does not and Peoples’ Rights (2015) 28. correspond to effectiveness. 10 Introduction in instances where compliance is high.74 research in a particular country. The Thus, a treaty which has a very high final selection of country researchers compliance rate and a great impact may was made on the basis of the research- nevertheless be low on effectiveness. On er’s personal knowledge of the country’s the other hand, a treaty regime may be legal system and human-rights situation, effective even though its compliance as well as the alumni’s availability and rate and overall impact is low.75 Thus capacity to carry out the research. A the ultimate goal of assessing the status questionnaire was developed to guide of implementation, compliance or the research and each researcher was impact of any international human provided with a copy of this question- rights treaty regime is to determine the naire and other relevant documents. A extent to which it may be effective. copy of the questionnaire used for the study is included in the annexure to this The research presented in this book book. Researchers were required to was carried out by human-rights schol- study existing literature, official docu- ars, activists and practitioners, all whom ments as well as news reports and have in-depth knowledge of the various conduct semi-structured interviews issues discussed in their respective chap- based on the questionnaire provided. ters. The primary objective of the Interviews were conducted with govern- research is to determine the extent to ment officials, members of civil society which two main regional human rights (especially NGOs whose activities relate treaties in Africa have been effective and to the African Charter and the Maputo impactful. Each of the chapters in the Protocol), and members of the public. book sets out to answer three overarch- After conducting field research, ing questions: what is the status of the researchers submitted their preliminary implementation of the African Charter reports, which were reviewed by the and the Maputo Protocol in a particular editors. country; what indirect effects, if any, have the Charter and the Protocol had 4 Overview of study results in that country; and what factors or mechanism enhance or impede the The evidence and findings presented in impact of the two instruments in that this book suggest that the overall impact country? of the African Charter and the Maputo Protocol are difficult to establish conclu- The study, which was conducted sively. The question whether the Afri- under the overall supervision of the can Charter and the Maputo Protocol Centre for Human Rights, began with have led to an improvement in the an invitation to alumni of the Centre’s human rights conditions at the domestic Master of Laws programme in Human level cannot be answered with a simple Rights and Democratisation in Africa, yes or no.76 However, while direct caus- seeking their involvement and participa- al links may be difficult to establish, the tion in the research project. A number evidence does suggests that the African of alumni responded to the call and in Charter and the Maputo Protocol have some cases, there were two or more had a modest impact in the 17 countries alumni seeking to collaborate on
74 Hafner-Burton & Tsutsui (n 3 above); 76 E Neumayer ‘Do international human rights Hathaway (n 3 above); Keith (n 3 above). treaties improve respect for human rights?’ 75 Raustiala (n 68 above) 387-397. (2005) 49 Journal of Conflict Resolution 950. Impact of the African Charter and the Maputo Protocol in selected African states 11 selected for the study. Laws have been and opening up the democratic space. adopted, policies formulated, resources Activist forces and networks capitalised allocated, institutions created and reme- on these initial concessions to press for dies provided as a direct consequence of change until international human rights states parties obligations under the Afri- norms are accepted, internalised and can Charter and the Maputo Protocol. cascaded into domestic systems.
The influence of the African Charter Consistent with the transnational and Maputo Protocol in the 17 studied legal process theory, evidence in various countries is consistent with three main chapters also reveals that repeated inter- theories of compliance with internation- action between state and non-state al law: the domestic politics theory, the actors in domestic and international fora spiral model of human rights change has intensified the impact of the African and the transnational legal process theo- Charter and the Maputo Protocol. Côte ry. Evidence from the various chapters d’Ivoire, where the African Commis- shows that domestic actors – policy sion’s session and promotional activities makers, legislators, judges and domestic have had more impact than the protec- civil society organisations – are the tive activities, is an example of this. primary drivers of impact of the African Charter and the Maputo Protocol. The The transnational legal theory holds chapters also reveal that state-level char- the key to understanding why human acteristics such as the level of political rights treaties, particularly the African stability in a state and the extent of Charter and Maputo Protocol, may or openness, transparency and citizen may not have the desired effect in a participation in governance are useful particular state. According to Koh, trea- predictors of the impact and effective- ty effects may take three pathways: ness of the relevant treaties. political internalisation, legal interna- tionalisation and social internalisa- Findings also illustrate the role of tion.78 Political internalisation occurs state repression within the framework of when political elites accept a norm. This the spiral model: in countries such as is usually a prerequisite for legal inter- Kenya, Malawi, Nigeria, Uganda and nalisation, which involves incorporation Zimbabwe, state repression has of the norm into domestic laws. Legal propelled domestic activist forces to internalisation may be administrative, demand human rights change, in legislative or judicial. The final stage of particular by connecting with transna- human rights norm internalisation is tional activist networks.77 Governments social internalisation and this is attained of these countries initially responded by when a norm has obtained public legiti- denying that human rights abuses were macy, support and widespread adher- taking place in their countries but even- ence.79 While there is no particular tually made tactical concessions, for sequence for this internalisation process, instance by freeing political prisoners, it is important for activist networks at recognising some basic human rights the domestic level to understand the level of internalisation in a particular state. Evidence in this book shows that 77 See ME Keck & K Sikkink Activists beyond borders (2008); M Finnemore & K Sikkink ‘International norm dynamics and political 78 HH Koh ‘Bringing human rights home’ change’ (1998) 52 International Organization (1998) 35 Houston Law Review 642. 892. 79 As above. 12 Introduction norms cascade much more easily into The findings also support the argu- the domestic system if political internali- ment of Simmons, Murray and Long sation is followed by legal internalisa- that international human rights treaties tion and then social internalisation. It is will be impactful only if they have more difficulty – although not impossi- ‘added value’.82 According to Simmons, ble – where this process is reversed. ‘treaties are causally meaningful to the extent that they empower individuals, The most significant impact of the groups, or parts of the state with differ- African Charter, and to a large extent ent rights preferences that were not the Maputo Protocol, has been recorded empowered to the same extent in the in new democracies and during times of absence of the treaties’.83 The creative political transition. This is consistent use of the African Charter by local activ- with findings of Moravcsik and ists and judicial actors in Nigeria during Simmons that international human the country’s worst military dictatorship rights treaties will have their most signif- supports this view. The direct domesti- icant impact in new democracies or cation of the African Charter in Nigeria transitioning regimes. Evidence from provided activist forces with an added Côte d’Ivoire, Kenya, Nigeria and advantage, which was used creatively. South Africa support this conclusion. In South Africa, courts have relied on Notable influence of the African Charter the African Charter’s protection of the was recorded in Nigeria, Kenya and family in judicial decisions because the Côte d’Ivoire amongst others immedi- South African Constitution has no ately before or during transition from explicit provision for the protection of one regime to another. Conversely, the the family. When asked why civil socie- evidence in this book reveals that the ty organisations in South Africa do not 80 ‘constraining effect’ of the African take cases to regional human rights Charter and the Maputo Protocol on bodies, most respondents indicated that state behaviour, or the degree to which they are generally satisfied with availa- these treaties can be said to constrain ble domestic remedies. Accordingly, state behaviour, is relatively limited in dissatisfaction with domestic legal countries such as The Gambia, Zimba- frameworks and judicial remedies seems bwe and Uganda, where political transi- to be one of the most important precon- tion has not taken place in the last two ditions for reliance upon and ultimately decades. The findings in this book there- impact of human rights treaties, particu- fore support the view that democratic larly the African Charter and the Mapu- political transition and treaty effects are to Protocol. related.81 Several factors have enhanced or impeded the impact of the African Char- ter and the Maputo Protocol in the 80 The phrase is used to refer to the ability of a selected countries, and most of these treaty to constrain state behaviour, domestic laws and policies brought about as a result of factors converge at the state level. This the African Charter or in response to a leads to the conclusion earlier alluded to decision of the African Commission or other regional human rights monitoring bodies. See that treaty effects at the domestic level BA Simmons & D Hopkins ‘The constraining are essentially a domestic affair. One of power of international treaties: theory and methods’ (2005) 99 American Political Science Review 623. 82 Murray & Long (n 69 above) 10-26; Simmons 81 See Moravcsik (n 24 above) 228; Simmons (n (n 12 above) 125. 12 above) 16 – 17. 83 Simmons (n 12 above) 125. Impact of the African Charter and the Maputo Protocol in selected African states 13 the most interesting findings of this complied with by states.84 For instance, study is that just as some positive factors adoption of the Maputo Protocol in the at the domestic level may impede the National Gender Policy of Zimbabwe impact of the African Charter and the was affected on the basis that it is Maputo Protocol, negative factors may regarded as the least contentious issue in equally enhance their impact. For Zimbabwe and hence supported by poli- instance, creative use of the African ticians. This analysis underscores the Charter is relatively lacking in countries importance of cost-benefit calculations such as South Africa, Ghana and to states’ compliance and domestic trea- Tanzania amongst others that have rela- ty effects. The costs that influence tively progressive Bills of Rights. The domestic treaty effects may be political, availability of satisfactory domestic financial or ideological. For instance, remedies in South Africa has been iden- rights which require huge financial tified as a factor that impedes use of the outlay for their realisation, or those that communication procedure under the threaten the political survival of state African Charter. Although a negative actors, are often least likely to be record, the atrocities and human rights complied with or implemented by states. abuses perpetrated by military adminis- trations in Nigeria was also identified as The various reports also underscore a factor which enhanced the impact of the significance of the African Human the African Charter in that country. In Rights Moot Competition in raising Zimbabwe, the increase in human rights awareness about the African Charter, abuses between 2000 and 2008 led to an Maputo Protocol and more generally increase in the number of individual the jurisprudence of the African communications filed against Zimba- Commission. The evidence also bwe and the number of country-specific suggests the steady influence of the resolutions adopted by the African Master of Laws (LLM) in Human Commission regarding that country. Rights and Democratisation in Africa (HRDA) programme of the Centre for The most important factor that has Human Rights at the University of contributed to the limited yet significant Pretoria on the promotion and protec- impact of the African Charter in Nigeria tion of human rights at the domestic is its direct domestication. In South level. Africa, it is the rich network of civil society organisations, academic institu- In the various chapters, contributors tions and research centres. In Côte agree that the most important require- d’Ivoire, the 42nd ordinary session of ment for improving the impact of the the African Commission which was African Charter and the Maputo Proto- held in that country, coupled with the col is increased awareness at the domes- African Commission’s concluding tic level. The chapters point out that observations and special mechanisms, awareness should be aimed not only at are what have left an imprint on the sensitising policy makers, legislators, country’s human rights landscape. judges, civil society and members of the public about the provisions of these Findings from this study also instruments but also on how these provi- support the views of Hill and Neumayer that the least contentious human rights provisions are the ones most likely to be 84 See Hill (n 13 above); Neumayer (n 12 above). 14 Introduction sions may be used to solve human rights cated international treaties before problems in specific contexts. domestic courts. • South Africa submitted an interpre- tive declaration on the Maputo Proto- 4 Best practices and areas of col which requires that the South concern African Bill of Rights shall not be interpreted to offer any less favoura- The following practices were found to ble protection of human rights than have greatly enhanced the impact of the the Maputo Protocol. African Charter and Maputo Protocol: • The government of Uganda ensures equal or fair representation of women • In 1983, Nigeria directly domesti- in its delegation during its presenta- cated the African Charter through tion of state reports before the Afri- national legislation entitled ‘the Afri- can Commission. can Charter on Human and Peoples’ • In Zimbabwe, women have a defined Rights (Enforcement and Ratifica- quota of 50 per cent in the composi- tion) Act’. The author of the chapter tion of constitutional commissions on Nigeria noted that this is the most and other government bodies, important factor for the relatively although it is unclear if government high impact of the African Charter in abides by this requirement at all levels Nigeria. of governance. • Kenya, though traditionally a dualist • In Kenya, the President is required by state, amended its constitutional the Constitution to submit, every instruments to make duly ratified year, a report for debate on how the international treaties directly applica- government is meeting its obligations ble within Kenya with or without with regard to international treaties. legislative domestication. • The African Charter, Maputo Proto- The following are noteworthy areas of col and other duly ratified interna- concern around the impact of the Afri- tional treaties have a higher status can Charter and Maputo Protocol in the than the Constitution in Côte countries under study: d’Ivoire. In Ethiopia, international human rights treaties, including the • In Ethiopia, the government requires African Charter and the Maputo civil society organisations working in Protocol, have a status higher than the area of human rights to raise 90 ordinary legislation, and are equal in per cent of their funding from local status to the Constitution. sources or face risk of legal conse- • The government of Tanzania usually quences. This law promotes double conducts ‘dissemination workshops’ standards and violates several human after receiving copies of concluding rights principles. Both the govern- observations of the African Commis- ment of Ethiopia and the African sion. Union rely heavily on foreign aid to • The Ethiopian Human Rights finance expenditure. Arguably, Afri- Commission has translated the Afri- can governments lack the moral can Charter into the major local authority to deny civil society organi- language (Amharic) and dissemi- sations access to external funding, nated copies to the public. Similarly, since governments also rely heavily the Maputo Protocol was translated on foreign donors. into indigenous languages in Nigeria • The Gambia and Lesotho are yet to prior to ratification. set up dedicated national human • The highest courts in Ghana, Lesotho rights institutions, despite repeated and several other dualist states allow calls by the African Commission and and support the use of undomesti- other international human rights Impact of the African Charter and the Maputo Protocol in selected African states 15
mechanisms requesting them to do instruments have not had a uniform so. effect in all states. The effects of these • The Republic of Mauritius is yet to two treaties have largely been condition- ratify the Maputo Protocol and there al on a combination of three factors: is no defined structure of government state level characteristics, the nature of responsible for coordinating responses and reporting obligations the treaty and the level of interaction, to international human rights bodies persuasion and pressure applied on in that country. states by domestic and international • No civil society organisations based compliance partnerships. in Mauritius or Sierra Leone have observer status with the African In order to improve the impact of Commission. the African Charter and the Maputo • Courts in several Francophone coun- Protocol in the selected states and across tries such as Cameroon, Côte d’Ivoire Africa more generally, it is recommend- and Burkina Faso have to date never ed that the focus should be on increas- cited or made reference to the African Charter, Maputo Protocol or any ing awareness about these instruments other regional human rights treaty in and how they may be used to solve Africa. human rights problems in specific • An example was given in the chapter domestic contexts. There is empirical on Zimbabwe that the Maputo Proto- support for the proposition that the col was incorrectly cited in the domestic effect of the African Charter Zimbabwean National Gender Policy and the Maputo Protocol corresponds to as ‘Protocol to the 2003 African Charter on Human and People’s the level of awareness of them at the Rights on the Rights of Women’. state level. Domestication of human • A practice was reported in the rights treaties is meaningless if members Burkina Faso chapter that the Conseil of the public do not have basic informa- africain et malgache pour l’éducation tion about these instruments. This is the supérieure (CAMES) does not consider case in most Francophone countries publications on human rights when selected for this study where duly rati- evaluating academics for promotion and career advancement. This has a fied treaties, including the African Char- negative implication for academic ter and the Maputo Protocol, are writing on the African Charter and directly applicable but rarely applied Maputo Protocol in that country. because of the lack of awareness not • It is also noted that in a majority of only by ordinary citizens but also policy the countries, NHRIs are not directly makers, legislators, judges and legal involved in the implementation of practitioners. decisions and concluding observa- tions of the African Commission. The African Commission must encourage NHRIs to include implementation of the decisions of the African Commis- sion and African Court in their thematic focus and programmes.
After a careful review of the evidence and findings presented in the various chapters in this book, it is the view of this author that the African Charter has had modest yet significant impact in all the 17 selected states. However, the two TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN BURKINA FASO
Kounkinè Augustin Somé*
1 Introduction Mouvement Burkinabè des Droits de l’Homme et des Peuples (MBDHP) record- Burkina Faso has ratified most of the ed that 34 people were killed across the international treaties on human rights. country, including 21 in Ouagadougou, The country was amongst the first Afri- seven in Sebba, three in Ouahigouya, can states to make the declaration two in Bobo-Dioulasso and one in Léo. (pursuant to article 34(6) of the Protocol Amongst the victims, at least 19 were to the African Charter on the Establish- shot dead. Unfortunately, at the time of ment of an African Court on Human this report, no clear and credible inves- and Peoples’ Rights [African Court]), tigation had yet been conducted to allowing direct access of individuals and establish the exact circumstances of the NGOs to the African Court. However, deaths and to determine responsibilities. many challenges remain that impede the full enjoyment of the rights contained in The transitional institutions estab- the African Charter and the Maputo lished following the crisis were intended Protocol. The political crisis that the to facilitate the organisation of credible country experienced in 2014 was the elections scheduled for October 2015. consequence of multifaceted social The revised electoral law excludes all those who supported the unlawful discontent. Although many claims relat- 1 ed to the equitable distribution of project to change the Constitution. resources, unemployment, access to This has been contested by political health and housing were raised, the parties close to the former regime, main objective of the social unrest was including before the ECOWAS Court of to oppose the change in the Constitution Justice, which found that the general nature of this provision may lead to to allow President Compaoré to remain 2 in office after 27 years of reign. Several discrimination. violations of human rights occurred Nonetheless, both civil and political during the October 2014 uprising. The rights and economic, social and cultural
1 Art 166 of the amended Electoral Code. 2 Judgment ECW/CCJ/JUG/16/15 http:// * LLM HRDA 2004; Coordinator, Citizens www.courtecowas.org/site2012/pdf_files/de Information and Documentation Centre cisions/judgements/2015/Aff_CDP_c_l_Et (CIDOC), Ouagadougou; [email protected] at_du_Burkina.pdf (accessed 6 September [email protected] 2015).
17 18 Burkina Faso rights (ESCR) are guaranteed in the However, the African Charter was current Constitution. Title I of the ratified by the Executive alone in 1984. Constitution, comprised of two chapters At that time, there was no Parliament as and 30 articles, is dedicated to funda- the country was under a revolutionary mental rights and duties. Although it is military regime. The instruments of rati- clear that economic, social and cultural fication of the Maputo Protocol were rights (ESCR), such as the right to prop- deposited on 21 September 2006 accord- erty (article 15) can be claimed before a ing to the process explained above. The court, not all ESCR are justiciable. ratification process for the Protocol was as follows: the Ministry in charge of the With regard to the status of promotion of human rights submitted a women's rights, progress continues to be draft law to Cabinet and after endorse- noted in policy and legislative reform. ment, the draft was tabled before Parlia- Still, women continue to be victims of ment for adoption into law. Act 021- violence and discrimination. Child 2005/AN of 19 May 2005 authorising marriage, harmful traditional practices, government to ratify the Maputo Proto- maternal mortality and weak participa- col was adopted on 19 May 2005, prom- tion in political processes, among other ulgated through a presidential decree things, are still daunting challenges to and published in the Official Journal. the full translation of Charter-based The ratification document was sent to rights into reality. the African Union Commission by the Ministry of Foreign Affairs. 2 Ratification of the African Charter and the Maputo During the presentation of the draft Protocol bill before the Parliamentary Committee on Foreign Affairs, the Minister in charge of the promotion of women Burkina Faso ratified the African Char- contended that ‘given the issues covered ter on 6 July 1984 and the Maputo by the Maputo Protocol, it is without Protocol on 9 June 2006. Both the any doubt the most suitable fundamen- Legislature and the Executive play a tal legal instrument to the context of role in the process of ratification of African women’.4 international agreements. Depending on She explained that its the nature of the treaty, the relevant ratification by Burkina Faso is in line ministerial department initiates a draft with the country’s will and constant request for ratification, the draft is commitment to promoting women’s discussed in a Cabinet meeting and rights and would translate the good will when endorsed, it is passed on to Parlia- of national authorities to promote and ment for adoption. Article 149 of the protect the rights of women. She Constitution reads that only Parliament concluded that the ratification of the can authorise the ratification of an inter- Maputo Protocol will fill the gaps and national convention. According to the lacunas revealed in the implementation Constitution, the President negotiates, of national and international human signs and ratifies international conven- rights instruments already ratified by the tions.3 country. In the submissions tabled and defended before Parliament, the Minis-
4 Exposé des motifs presented before Parliament by the Minister in charge of the promotion of 3 Art 148 of the Constitution. women. Impact of the African Charter and the Maputo Protocol in selected African states 19 ter highlighted the value added by the ated by government ministries; Maputo Protocol and stressed its (b) review and advise on government progressive nature and how it would policies and strategies on human rights; help advance women’s rights.5 and (c) provide technical support in the drafting of Burkina Faso’s state reports 3 Government focal points to human rights mechanisms, including the UN human rights bodies and the The Ministry of Justice, Human Rights African Commission. and Civic Promotion (Ministère de la In accordance with the country’s Justice des Droits humains et de la promo- international human rights obligations, tion civique – MJDHPC) is the focal point the CIMDH is also tasked to: review for interaction on the Charter and the and advise on any dispute involving the Protocol. It has a specific Directorate state; contribute to the introduction of tasked with ensuring follow up on inter- human rights and international humani- national conventions: the Directorate in tarian law in the formal and non-formal charge of following up international agree- education system; and disseminate ments. When it comes to the Protocol, human rights and international humani- the MJDHPC is assisted and supported tarian law culture amongst government by other ministerial departments, structures, including the national armed including in particular the Ministry of forces. Women and Gender Promotion. Besides the CIMDH, there are In general, the MJDHPC, being a human rights focal points in each minis- cross-cutting structure for this matter, try. Nonetheless, the responsibility of collaborates with other departments at implementation of human rights is different levels. The Ministry hosts the disputed by several line ministries with Inter-ministerial Committee on Human reference to the subject matters they Rights and International Humanitarian cover. Law, the Comité Interministériel des droits humains et du droit international humani- 6 The focal points communicate with taire (CIMDH). It is a technical consul- the African Commission through diplo- tative body that supports and advises matic channels. The Ministry of Foreign government on policies and strategies Affairs and Regional Integration is for the promotion, protection and therefore a very key transit point. Inter- respect of human rights and internation- viewed stakeholders feel that this way of al humanitarian law. The CIMDH is communicating with the Commission tasked to amongst other things: (a) facil- could be quite burdensome. Some itate coordination of human rights commented that direct informal promotion and protection activities initi- contacts, including through emails are increasingly being established for the 5As above. purposes of work, but diplomatic chan- 6 The inter-ministerial committee on human rights and international humanitarian law nels remain favoured. (CIMDH) was established by the décret 2005-100/PRES/PM/MPDH du 23 février 2005 portant création, attributions, 4 Domestication or incorporation composition et fonctionnement du Comité interministériel des droits humains et du droit international humanitaire and later on Article 151 of the Constitution estab- amended by the décret 2008-740/PRES/ lished the principle of the supremacy of PM/MPDH du 17 novembre 2008. 20 Burkina Faso international law provisions to those of specific domestication requirements. national law, provided that they are The African Charter was directly incor- applied by the other party. In the porated and forms an integral part of the Burkinabe legal system, duly ratified Constitution.7 The Preamble of the international conventions are directly Constitution refers expressly to the applicable when they directly recognise Charter, and the Bill of Rights contained the rights of citizens. In cases of conflict, almost all the Charter’s rights. However, international law is considered superior. there is no specific legislation with the Upon publication of the instruments of intention to give effect to the Charter or ratification, the provisions of interna- the Protocol. A few specific Acts refer to tional law can be invoked by the judge the Charter. Notwithstanding, there are as well as by third parties. Thus, the national laws which by their content, provisions of the Maputo Protocol can are a translation of a combination of be invoked directly by individuals before various UN and regional human rights national courts. Reliance no longer instruments. These include among requires a particular incorporation act or others the law on reproductive health law. (21 December 2005); a law on the fight against HIV/AIDS and the protection Paragraph 8 of the Preamble to the of the rights of persons living with HIV/ Constitution reaffirms ‘solemnly our Aids (20 May 2008); and the law insti- engagement vis-à-vis the African charter tuting quotas for legislative and munici- of human and peoples’ rights of 1981’. pal elections in Burkina Faso (16 April With this, the Charter is an integral part 2009). of the Constitution and this confers a constitutional value to its provisions. As 5 Legislative reform and adoption such, they are normally directly applica- ble. The Maputo Protocol, which was The African Charter was ratified in 1984 ratified in 2006 as explained in the when the country was under military section below, remains a treaty and rule, and therefore had no constitution. therefore is considered at the level of For the Maputo Protocol, a compatibili- legislation under the Constitution. ty test was conducted before its ratifica- Almost all the rights provided for by the tion in 2006. In the first instance, a legal Charter are included in the Bill of opinion was sought from the Constitu- Rights, although only civil and political tional Council as to whether the Mapu- rights have direct application while to Protocol is in conformity with the economic, social and cultural rights are Constitution. The answer was positive.8 to be promoted, in the sense of their This paved the way for the ratification progressive realisation. In fact, the Char- process to proceed. Furthermore, and in ter was ratified at a time when Burkina Faso had no constitution. The Bill of Rights that followed included the Char- 7 Paragraph 8 of the Preamble of the Constitution reads that ‘reaffirming solemnly ter rights. The Charter has influenced our engagement vis-à-vis the African charter the new Constitution and the Bill of of human and peoples’ rights of 1981’. With this, the Charter is an integral part of the Rights contained therein. Constitution and this confers a constitutional legal value to its provisions; they are Burkina Faso, like most civil law normally directly applicable and opposable to government. traditions, has a monist approach to 8 Avis juridique no 2006-001/CC du 24/02/ international treaties. There are no 2006 sur la conformité à la Constitution du 02 juin 1991, du Protocole à la Charte Impact of the African Charter and the Maputo Protocol in selected African states 21 general, a project was initiated by the tion has been incorporated. The Pream- Ministry in charge of the promotion of ble of the Constitution now recognises human rights to align national legisla- gender promotion as a factor for the tion with international norms with realisation of gender equality as a right regard to civil and political rights. and gender promotion has since became a constitutional norm.9 Several pieces of legislation have been amended or adopted since ratifica- 6 Policy reform and adoption tion of the Maputo Protocol with a view to take women rights into account. Several policies and strategies have been These include: developed with a view to taking (a) Law 033-2012/AN of 11 June 2012 on women’s rights into account and which the review of the Constitution; can be considered as aiming to give (b) Law 0034-2009/AN of 24 July 2009 on effect to the Maputo Protocol. These rural lands: It gives men and women include: the same rights to access and enjoyment of land; (a) The National Policy for the Promotion of Human Rights and Civic Education (c) Law 010-2009/AN of 16 April 2009 (PNDHPC) 2013-2022 is regarded as a instituting quotas in the parliamentary reference document which explains the and municipal elections, intended to foundations of government action in promote women’s political rights. This the area of human rights and civic law requires all political parties to promotion. It envisions contributing to include at least 30 per cent of either sex the consolidation of the rule of law for on the list of candidates for legislative better enjoyment of human rights in and local elections. Failure to abide by the service of peace, civism and this rule will result in the said party sustainable development of Burkina losing half of the public funding for Faso by 2022.10 The policy was electoral campaign activities. The adopted through a decree and important role played by the African published in the Official Gazette of Commission in the adoption of this Burkina Faso.11 provision on quotas should also be highlighted; the Commission has sent (b) Special Fund for women’s initiatives: advocacy letters to several state with regard to women’s access to authorities requesting them to adopt or funding and loans, government has facilitate the adoption of legislation on established a special Fund to support quotas; women’s initiatives as well as a special job creation programme to fund (d) Law 029-2008/AN of 15 May 2008 on women’s activities. the fight against human trafficking and similar practices, which provides for (c) National Gender Policy: the adoption particularly severe sanctions when the of the National Gender Policy ‘Politique victim of trafficking is a vulnerable Nationale Genre’ in July 2009.12 person (such as a pregnant woman or child) or when it has resulted in mutilation or permanent infirmity. 9 See the Preamble and arts 101 of the loi 033- 2012/AN du 11 juin 2012 portant révision de la Constitution More so, the Constitution was reviewed 10 http://www.ilo.org/dyn/natlex/docs/SERI in 2012 and the issue of gender promo- AL/97958/116409/F1316129139/BFA-979 58.pdf (accessed 21 November 2015). 11 Journal Officiel, 2013-06-06, 23. 12 Ministry of Women and gender promotion 8 africaine des droits de l’homme et des website http://www.mpf.gov.bf/index.php/ peoples relative aux droits de la femme en faqs/1-latest/197-ministere-de-la-promotion- Afrique, adopté par la Conférence des Chefs de-la-femme-et-du-genre-le-guichet-special-l- d’Etat et de Gouvernement de l’Union appui-a-lentreprenariat-feminin-r-expliqueau Africaine le 11 juillet 2003 à Maputo. x-jeunes-filles (accessed 21 November 2015). 22 Burkina Faso
(d) FGM Policy: the adoption in 2008 of 7 Court judgments the Zero tolerance policy on female genital mutilations for an initial period of 2009-2013. In general, domestic courts tend to refer predominantly to national legislation, (e) The Accelerated growth and sustain- able development Strategy (SCADD) and in this sense, judges in Burkina was adopted in 2011. In this document, Faso, like in most civil law systems, are the government had planned strategic strongly attached to the local law. To actions to take into account the specific date, the African Charter has not rights of women mentioned in the expressly been mentioned in any judg- SCADD. The country’s development plan was reviewed in 2015 with human ment by a domestic court. The only rights having a central place. mention of the Protocol is in the Consti- tutional Court 2006 legal opinion,13 Other documents that have been adopt- confirming that the Protocol was in ed to boost the objectives of the conformity with the Constitution. SCADD include: the National Policy of Human Rights and Civic Promotion; To create more awareness and the National Policy on Health; the educate the legal profession on the use National Policy on Employment; the of international human rights instru- National Policy on Finance; and the ments, the Ministry of Justice is work- Program for the Strategic Development ing to sensitise judges and other actors of Education, amongst others. All these on best practices in the use of interna- policies and programmes have been tional conventions in domestic courts. developed for the realisation of women’s This work is supported by civil society rights and the welfare of Burkina organisations. people. 8 Awareness and use by civil In general, the government of Burki- society na is doing its best to improve the condi- tions and enjoyment of women’s legal In general, very few NGOs in Burkina rights. Although the above mentioned Faso are aware of or sensitised on the policies are not explicitly said to give Maputo Protocol and the Charter. effect to the African Charter and the Amongst them, the Burkinabé Human Maputo Protocol, they contribute and Peoples’ Rights Movement tremendously to the advancement of (MBDHP) regularly monitors and advo- women’s legal rights, including those cates for the actual implementation of provided for in the Charter and Maputo the Charter. The MBDHP, which has Protocol. Besides the Action Plan for observer status with the African the Promotion of Human Rights and Commission, frequently submits shad- Civic Education, the Minister of Justice ow reports. It also issues an annual and Human Rights has also developed a report on the human rights situation in methodology note to guide the elabora- the country, using the Charter as a basis tion of sectoral policies with the view to ensuring that they are human rights- 13 Avis juridique 2006-001/CC du 24/02/2006 based. This was acknowledged by the sur la conformité à la Constitution du 02 juin Human Rights Council during Burkina 1991, du Protocole à la Charte africaine des droits de l’homme et des peoples relative aux Faso’s review at the second cycle of the droits de la femme en Afrique, adopté par la UPR. Conférence des Chefs d’Etat et de Gouvernement de l’Union Africaine le 11 juillet 2003 à Maputo. Impact of the African Charter and the Maputo Protocol in selected African states 23 for review. Women’s rights groups such holder’s obligations.16 On the occasion as the Female Lawyers Association of the periodic report of Burkina Faso (Association des femmes juristes du Burkina reviewed at the 49th ordinary session of Faso) also use the Maputo Protocol, the African Commission held in Banjul, mostly in their advocacy work and for The Gambia, only FIACAT and ACAT their training activities. The Citizen Burkina presented a shadow report. At Information and Documentation Center the 53rd ordinary session of the (Cidoc)14 trained civil society organisa- Commission, the MBDHP made an oral tions on the rights contained in the intervention concerning the human Maputo Protocol and how to use the rights situation in Burkina Faso. instrument for advocacy and monitoring activities. It is observed that local NGOs are much more aware of the United Nations During a sensitisation mission to human rights mechanisms than those of Burkina Faso in March 2006, the Afri- the African Union. For instance, there can Commission’s delegation called on are more shadow reports submitted to civil society and NGOs in particular to the UN treaty bodies on Burkina Faso further consolidate their activities in the than to treaty bodies established under area of sensitisation of the population the African regional human rights on human rights issues through the system. promotion of the African Charter. 9 Awareness and use by lawyers National NGOs which have obser- and judicial officers ver status with the African Commission include: the Mouvement Burkinabé des Many lawyers in Burkina have little Droits de l'Homme et des Peuples awareness of African human rights (MBDHP); the Union Interafricaine des instruments, including the Charter and Droits de l'Homme; the Association de the Maputo Protocol, and therefore Protection et de Sauvegarde de their effective use is still developing. In L'Enfance en Danger; the Association conducting this research, we could not d'Appui et d'Eveil ‘PUGSADA’ find instances where lawyers have used (ADEP); the Association des Femmes the Charter or Protocol in their submis- Juristes du Burkina Faso; the Antenne sions or in any other way before domes- Social Alerte Burkina (ASAB); the tic courts. The only instances where Association Burkinabè pour la Survie de provisions of regional human rights l’Enfance (ABSE); the Centre pour la mechanisms are invoked are when they Gouvernance Démocratique (CGD); are used to defend a case before a and the Fondation pour l'étude et la regional court such as the ECOWAS promotion des droits humains en Afrique (FEPDHA).15
Not all of the organisations listed 16 The Commission started granting observer above comply with their observer status status to NGOs in 1988. It took a decision at its 11th Session requiring all NGOs with observer status to submit their activity reports to the African Commission at least once every two years – see http://www. 14 www.centrecitoyen.net (accessed 21 Novem- achpr.org/sessions/24th/resolutions/30/ ber 2015). (accessed 13 January 2016). Yet, most 15 http://www.achpr.org/network/ngo/ NGO's in Burkino Faso with observer status (accessed 6 September 2015). have yet to comply with this requirement. 24 Burkina Faso
Court of Justice. In Decision 2015-021/ ter and Maputo Protocol, is taught in CC/EL,17 the Constitutional Council of this course. Burkina Faso commented on the recent decision of the ECOWAS Court of However, and within the UN- Justice regarding the compatibility of backed world programme for human 18 the electoral code with regional human rights education, government has rights instruments. introduced human rights education in the curricula of all branches of educa- Talking to some of the legal practi- tional structures, including at the tioners pursuant to this study, they ENAM, Universities and high argued that national laws are compre- schools.19 Training modules and hensive enough to provide them with programmes are also developed for arguments to defend their cases. Howev- state-run professional education institu- er, most of them admitted that they tions and training centres.20 have little or no knowledge of the regional instruments. The Ministry of Apart from some articles, no publi- Justice is organising training to enhance cation has been registered specifically the promotion of the Charter in law concerning the African Charter and the societies and to increase the knowledge Maputo Protocol in Burkina Faso. of these important instruments. Some Academic practitioners explained that NGOs are also intervening on this this is due to the system put in place by matter. the Conseil africain et malgache pour l’éducation supérieure (CAMES), which 10 Higher education and academic does not consider publications on writing human rights when evaluating candi- dates for promotion. Due to this, some university professors have limited them- In general, universities do not sufficient- selves to theoretical teaching with ly take into account the issue of human almost no publication on the topic. rights in their curricula. Even when this However, Yarga Larba and Professor is dealt with, it remains very succinct. Salif Yonaba have written on human Law schools teach Civil Rights and rights though not with a specific focus Human Rights Law in the third year. on the African Charter and the Maputo This is where the African human rights Protocol. Law students have equally system is taught. In addition, private written their dissertations on various universities began offering LLM courses human rights issues, including on the on human rights studies. African human rights system. When Human rights law is also taught at talking about the Charter, the views the National School of Administration generally expressed are that it is an Afri- (Ecole Nationale d’Administration et de can instrument which is based on Afri- Magistrature – ENAM) to public officers, can values and perspectives. especially civil servants recruited to work with the Ministry in charge of 18 http://www.ohchr.org/EN/Issues/Educatio human rights. The African human rights n/Training/WPHRE/ThirdPhase/Pages/ system, together with the African Char- ThirdPhaseIndex.aspx (accessed 16 Novem- ber 2015). 19 Burkina Faso report to the African Commission covering the period of 1998- 17 http://www.zoodomail.com/spip.php?artic 2002. le10944 (accessed 6 September 2015). 20 As above. Impact of the African Charter and the Maputo Protocol in selected African states 25
11 National human rights workshops is regarded as an instance of institutions (NHRIs) involvement in the preparation of state reports to the African Commission. Burkina Faso has both a National Human Rights Commission (NHRC) 12 State reporting and an Ombudsman Office, known as the Mediateur du Faso. Both institutions The MJDHPC is the focal point for are created by Acts of Parliament, but state reporting to international human the NHRC is considered as the primary rights mechanisms. The Direction du national human rights institution. The Suivi des Accords Internationaux – DSAI, Acts establishing both institutions do within the MJDHPC, plays a vital role not make specific mention of the Afri- in this process. This Ministry is in can Charter or the Maputo Protocol. charge of monitoring implementation of the African Charter and the Maputo The plan of action of the National Protocol. However, it relies on many Human Rights Commission of Burkina other state ministries in this task, Faso has outlined several projects aimed through human rights focal points. at promoting and protecting human rights. Though the plan does not refer In practice, the state reporting directly to the Charter or the Protocol, process is as follows: (a) the technical its implementation will favour the reali- departments of the MJDHPC in collab- sation of the rights articulated therein. oration with relevant government minis- The Mediateur du Faso traditionally tries generate the first draft, taking into strives to ensure respect of the human account initial or previous reports; rights of the citizenry and its mandate (b) the draft is validated in a workshop focuses on repairing, through media- with the participation of public struc- tion, violations that a citizen may have tures as well as human rights-based civil suffered at the hands of the state. It does society organisations; (c) the validated not expressly refer to the Charter or the draft is submitted to the CIMDH for Protocol. review; and (d) the report is tabled for adoption in a cabinet meeting. This The NHRC is affiliated to the Afri- cabinet-adopted version will then be can Commission and therefore submits sent to the relevant human rights mech- reports to the Commission, but it is not anism through the Ministry of Foreign engaged in direct follow up of the imple- Affairs and Regional Integration. mentation of the Commission’s recom- mendations, decisions or general For instance, for the most recent comments. The yearly reports of the reports presented to the African Mediateur du Faso have hardly referred to Commission, the MJDHPC established the Charter or the Protocol. a committee for the preparation of the report and a multi-sectoral committee Both the National Human Rights for the monitoring of the reports draft- Commission and the Mediateur du Faso ing process. This committee consisted of participate in the national validation representatives from various ministries workshops before state reports are (the human rights focal points), institu- submitted. Apart from that, their opin- tions and civil society organisations. ions or views are not directly sought. The ministry of women and gender Their participation in the validation promotion (MPFG) which is in charge 26 Burkina Faso of the implementation of government (d) Increase the number of Reception policies for women rights was heavily centres for women victims of involved. witchcraft accusation and adopt specific measures for their protection; and So far, Burkina Faso has presented four state reports. The reports have, (e) Facilitate registration procedures and the establishment of supplementary however, not always been submitted on judgment of birth certificates for non- time. For instance, the third and fourth reported children. cumulated periodic report (2011-2015)21 was submitted on 11 May 2015. Though Some actions have been taken to give it ratified the Maputo Protocol in 2006, effect to these concluding observations. Burkino Faso has yet to submit a specif- These include: ic report on the Maputo Protocol. However, in its May 2015 report on the (a) The continuation of the free prenatal care policy for women and child African Charter, Burkina Faso did immunisation through the acquisition address implementation of the Maputo of drugs and consumables worth 650 Protocol. million CFA francs; (b) The adoption of a national plan for the Government delegations for the elimination of female genital presentation of the report are usually mutilation in the perspective of a zero made up of officials from the ministries tolerance policy; of justice and human rights and those in (c) The establishment of shelters for charge of women and gender promo- women accused of witchcraft and tion. The delegations usually demon- excluded from their communities. There are 13 reception centres strate equitable representation of recognised by the Ministry of Social women. Action and National Solidarity. Furthermore, government adopted a Pertinent concluding observations national action plan in 2012 to fight concerning women’s rights made pursu- against the social exclusion of people ant to the previous report submitted by accused of witchcraft; and Burkino Faso include the following. The (d) The 2012, adoption of a National civil Commission requested the Government status strategy covering 2012-2016. This strategy aims to improve the of Burkina Faso: performance and efficiency of the system of registration through (a) Make family planning programmes computerised registration in all registry accessible and increase efforts to offices. reduce maternal and infant mortality; (b) Implement support measures of the law Furthermore, several pieces of legisla- on quotas to increase women's tion and policies have been amended or representation in decision-making adopted to take into consideration some areas; of the recommendations made by the (c) Ensure effective implementation of the African Commission, including the law law on female genital mutilation and and quotas for women's political partici- strengthen measures to eradicate the practice of female genital mutilation; pation. These legislative and policy initi- atives may not be specifically taken as a response to the recommendations but they contribute to a solid framework on 21 http://www.achpr.org/files/sessions/57th/ women's human rights. state-reports/3-2011-2015/staterep3.pdf (accessed 6 September 2015). Impact of the African Charter and the Maputo Protocol in selected African states 27
13 Communications of Justice, in its Judgement ECW/CCJ/ JUG/16/15,26 warned Burkina Faso In total, three cases have been decided against mass exclusion of political oppo- on Burkina Faso by the AU human nents in the electoral process which may rights monitoring mechanisms.22 In be a violation of the AU Charter on communication 204/97, Mouvement Democracy, Elections and Govern- 27 Burkinabé des Droits de l’Homme et des ance. Peuples v Burkina Faso,23 the African Commission found that Burkina Faso 14 Special mechanism – was in violation of articles 3, 4, 5, 6, Promotional visits of the 7(1)(d) and 12(2) of the African Charter, African Commission and recommended that Burkina Faso heed the legal consequences of such a To date, none of the special mecha- finding, including by taking specific nisms of the African regional human measures enumerated by the Commis- rights system have visited the country. sion. Very little was done, however, to Only two promotional missions of the implement the decision of the Commis- African Commission were conducted to sion. In another case, Norbert Zongo v Burkina Faso: one in 2001, and the 24 Burkina Faso, the African Court other in 2007. These promotional ordered the State of Burkina Faso to missions coincided with the period resume investigations and prosecute the when Salamata Sawadogo of Burkina perpetrators of the murder of Norbert Faso was the Chairperson of the African Zongo and his three companions. It also Commission. Amongst other pertinent asked the government to compensate recommendations, the government of 25 the families of the victims. Burkina Faso was asked to:
It should be noted that in recent (a) Implement reforms, including in the months, the interaction of Burkina Faso field of justice and ensure the effective with the AU and ECOWAS human implementation of commitments made rights mechanisms has been intensive as part of the quest for solutions to the problems of human rights violations; around the application of the AU Char- ter on Democracy, Elections and (b) Take all necessary measures to combat illiteracy and poverty affecting the Governance. In the case Congrès pour la enjoyment of human rights; and Démocratie et le Progrès (CDP) & Autres v (c) Take the necessary steps to transform L’Etat du Burkina, the ECOWAS Court the Secretariat for the Promotion of Human Rights into a full Ministerial Department and establish a National Human Rights Commission of Burkina Faso.
After this promotional mission, Burkina Faso created the Ministry of Human
26 http://www.courtecowas.org/site2012/pdf_ 22 http://caselaw.ihrda.org/fr/country/burkin files/decisions/judgements/2015/Aff_CDP a-faso/ (accessed 6 September 2015). _c_l_Etat_du_Burkina.pdf (accessed 6 Sep- 23 http://www.achpr.org/communications/de tember 2015). cision/204.97/ (accessed 13 January 2016). 27 http://www.au.int/en/sites/default/files/tr 24 Case 013/11, African Court on Human and eaties/7790-file-african_charter_on_democr Peoples’ Rights. acy_elections_and_governance.pdf (accessed 25 As above. 13 January 2016). 28 Burkina Faso
Rights. However, currently, human women are expected to strengthen rights are again merged with justice into impact of the Charter and Protocol in a single ministry. The country has Burkina Faso. Translation of the Afri- improved the literacy and school enrol- can Charter into local languages and the ment rates. renewed interest of civil society for the respect of human rights norms, are 15 Factors that may impede or factors that could further boost impact enhance the impact of the of the Charter and Protocol in Burkina African Charter and the African Faso. Commission Apart from the 19th ordinary session of the African Commission that Poverty, ignorance and lack of aware- it hosted from 26 March to 4 April ness of existing human rights instru- 1986, Burkina Faso has hosted no other ments and mechanisms, as well as sessions of the African Commission in insufficient political commitment recent years. Indeed, holding another impede negatively on the positive session of the Commission in the coun- impact of the Charter, the Maputo try may help to boost people's under- Protocol and activities of the African standing of the greater awareness and Commission in Burkina Faso. With the use of the Charter and its protocols by popular insurrection of 30-31 October the legal profession. 2014, the situation is changing and changing fast. Many political and civil To date, only Ms Salamata Sawado- society actors are conducting sensitisa- go has been a member of the African tion campaigns in favour of respect for Commission. She chaired the Commis- human rights and women’s rights in sion from 2003 to 2007. Since then, particular. After the events of October Burkina Faso has not had another 2014 which led to a change in regime, national serve as a member of the the different actors are fighting for the Commission. During the chairperson- revision of some laws in order to ship of Ms Sawadogo, citizens of Burki- improve women’s political participa- na Faso learned more of the tion. These actions will contribute to Commission and relevant documenta- enhanced impact of the African Charter tion and information were provided to and Maputo Protocol in Burkina Faso. national NGOs. As Chair of the For instance, a quota was set aside for Commission, she also played a vital women in the National Transitional advocacy role in the adoption of legisla- Council (CNT) which serves as legisla- tion allocating gender-based quotas for tive body. Their participation in the parliamentary and local elections. CNT has led to pro-women’s rights reforms being initiated. The role of the media in implemen- tation of the African Charter and Mapu- In general, the existing legal and to Protocol is limited. The media cover institutional frameworks, including the the activities of civil society and publish human rights commission which enjoys their press releases, but there is no observer status with the African specific programme developed by the Commission, and the national commis- press on promotion of the African Char- sion established to follow up on Burkina ter. Some radio and TV stations hold Faso’s commitments in favour of debates on women’s rights themes, but Impact of the African Charter and the Maputo Protocol in selected African states 29 these are not always clearly linked to the Charter or the Protocol. It would be interesting to organise training activities for the benefit of media practitioners on use of African instruments for the protection of human rights. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN CAMEROON
Polycarp Ngufor Forkum*
1 Introduction In Cameroon, there are several insti- tutions that deal with human rights. The Preamble of Cameroon's Constitu- These institutions include the Ministries tion states that ‘the human person, with- of External Relations, Promotion of the out distinction as to race, religion, sex Family, Social Affairs and Justice and or belief, possesses inalienable and also the Cameroon National Commis- sacred rights’ and further that ‘the state sion on Human Rights and Freedoms shall guarantee all citizens of either sex (NCHRF). As per the decree establish- the rights and freedoms set forth in the ing the Ministry of Women and the 2 Preamble of the Constitution’. Articles Promotion of the Family, there is an 12 and 13 of Decree 94/199 of October entire directorate for the Promotion and 1994, on the General Status of the the Protection of the Family and the Public Service, amended by Decree Rights of the Child. Cameroon has 2000/287 of 12 October 2000, specifies acceded to the major international and 3 that the public service is open, without regional human rights treaties. discrimination, to every Cameroonian fulfilling age requirements. Electoral eligibility and voting rights are equally 2 Decree 2012/0638 of 21 December 2012 on guaranteed to every person of Cameroo- the Organisation of the Ministry of Women nian nationality, without distinction of and the Promotion of the Family. 3These include : International Covenant on sex; provided they meet the voting age Civil and Political Rights (Accession 27 June requirement, which is 20 years in Came- 1984); Optional Protocol to the International 1 Covenant on Civil and Political Rights roon. The principles of equality and (Accession 27 June 1984); International non-discrimination are further guaran- Convention on the Elimination of All Forms of Racial Discrimination (Ratification teed by article 16 of the Civil Code, arti- 24 June 1971); Convention on the cle 1 of the Penal Code and article 84 of Elimination of All Forms of Discrimination against Women (Ratification 23 August the Labour Code. 1994); Optional Protocol to the Convention on the Elimination of Discrimination against Women (Accession 7 January 2005); Supplementary Convention on the Abolition * LLM HRDA (Pretoria), Superintendent of of Slavery, the Slave Trade, and Institutions Police and Head, Human Rights Unit, and Practices Similar to Slavery (Accession National Advanced Police School, Yaoundé 27 June 1984); Convention for the – Cameroon/Independent Researcher. Suppression of the Traffic in Persons and of 1 National Commission on Human Rights and the Exploitation of the Prostitution of Others Freedoms Report on the state of Human Rights (Accession 19 February 1982); Convention in Cameroon (2009) 73. against Torture and Other Cruel, Inhuman
31 32 Cameroon
Major civil and political rights are spheres of decision making and elective guaranteed and protected in Cameroon. offices. Socio-economic rights are justiciable in spite of governments’ constant justifica- 2 Ratification of the African tion of compliance difficulties on the Charter and the Maputo economic situation of the country. Initi- Protocol atives at the level of protecting women against FGM and gender-based violence The Republic of Cameroon signed and include the draft Code of the Person and ratified the African Charter on 23 July the Family, which contains favourable 1987 and 20 June 1989, respectively. provisions on the rights of women, and The Maputo Protocol was signed on provides a major opportunity for gender 25 July 2006, ratified on 13 September equality and equity. Moreover, the draft 2012 and the instrument of ratification bill on the Prevention and Punishment deposited on 28 December 2012.4 In of Violence on Women and Gender terms of the Constitution of Cameroon,5 based Discriminations protects women the executive, through the President of and establishes legal equality between the Republic, has the responsibility to men and women. Also worth mention- ratify all international treaties. Article ing is the update of the National Action 43 provides as follows: Plan to fight Female Genital Mutilation (FGM) which focuses mainly on sensiti- The President of the Republic shall sation of both victims and actors of the negotiate and ratify treaties and phenomenon. Areas of concern for international agreements. Treaties and women’s rights in Cameroon include international agreements falling within the area of competence of the Legislative the promotion of equal and equitable Power as defined in Article 26 above shall access of women and men, and girls and be submitted to Parliament for boys to education, training and informa- authorisation to ratify. tion; the promotion of equal opportuni- ties between women and men in the On its part, article 44 states the follow- domain of the economy and employ- ing: ment; and the increase in the participa- Where the Constitutional Council finds a tion and representation of women in the provision of a treaty or of an international agreement unconstitutional, authorisation to ratify and the ratification of the said treaty or agreement shall be deferred until 3 or Degrading Treatment or Punishment the Constitution is amended. (Accession 19 December 1986); Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Further still, article 45 suggests that Treatment or Punishment (Signature Cameroon is a monist state as it stipu- 15 December 2009); Convention on the Rights of the Child (Ratification 11 January lates that: 1993); Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts Duly approved or ratified treaties and (Ratification 4 February 2013); Convention international agreements shall, following concerning the Prohibition and Immediate their publication, override national laws, Action for the Elimination of the Worst Forms of Child Labour (Ratification 5 June 2002); Convention relating to the Status of Refugees (succession 23 October 1961); African Charter on Human and Peoples' 4 Decree 2009/143 of 28 May 2009. Rights (Ratification 20 June 1989); and 5 Constitution of the Republic of Cameroon, African Charter on the Rights and Welfare of Law 96-06 of 18 January 1996 amending the the Child (Ratification 5 September 1997). Constitution of 2 June 1972. Impact of the African Charter and the Maputo Protocol in selected African states 33
provided the other party implements the effect to the fundamental rights and free- said treaty or agreement. doms spelt out in the Universal Declara- tion on Human Rights (UDHR), the The organ in charge of implementa- African Charter and other ratified inter- tion of the African Charter is the Sub- national treaties. The 1996 Constitution Directorate of NEPAD at the Ministry limits itself to, in the Preamble, enumer- of External Relations. Regarding the ating human rights such as the rights to Maputo Protocol, there is no specific life, physical and moral integrity and to organ in charge of implementation in humane treatment; the right to freedom Cameroon. However, the government and security; the right to education; the has created an institutional framework protection of minorities; the rights of that protects and promotes the rights of indigenous populations in accordance women and girls. In 1975, the Ministry with the law; freedom of movement; of Social Affairs was created and this privacy; the right not to be unduly pros- later became the Ministry of Women ecuted, arrested or detained; the right to Affairs, and then the Ministry of Promo- a fair hearing before the courts; the right tion of Women and the Family and to presumption of innocence; the right today exists as the Ministry of Women not to be harassed on grounds of one’s Empowerment and the Family. The origin, religious, philosophical or politi- mandate of the Ministry is to put in cal opinions or beliefs, freedom of reli- place measures aimed at respect for the gion and worship; freedom of rights of women in Cameroon, the elim- communication, of expression, of the ination of all forms of discrimination press, of assembly, of association, and of against women and the promotion of trade unionism, as well as the right to equality in political, economic, social strike; the right to a healthy environ- and cultural life.6 ment; and the obligation to work. The Ministry is mandated to study Article 65 clearly states that the and propose strategies and measures Preamble shall be part and parcel of the aimed at reinforcing the promotion and Constitution. Therefore, fundamental protection of the rights of the child so as rights mentioned in the Preamble as per to take into account the definition of article 45 have primacy over every woman given by the Maputo Protocol domestic law. It is the duty of lawmak- which is child inclusive. In this context, ers to ensure that, prior to ratification, girls are victims of for example forced no provisions of an international marriages, sexual abuse and discrimina- convention conflict with existing nation- tion in educational opportunities.7 al laws. The Parliament of Cameroon neither made reservations while ratify- 3 Domestication or incorporation ing the Maputo Protocol nor modified domestic laws before ratification. There is no separate section in the However, the adoption in 2010 of a Constitution that could be referred to as National Plan of Action for the Elimina- a bill of rights. The revised Constitution tion of Female Genital Mutilation in of 1996 (1996 Constitution) gives full Cameroon is a genuine example of an explicit measure adopted to give effect 6 Decree 2011/408 of 9 December 2011 organising the government. 7 Report by the Ministry of Justice on Human Rights in Cameroon in 2012 (2013) 284. 34 Cameroon to the African Charter and the Maputo The draft Code of the Person and Protocol.8 the Family, which contains favourable provisions on the rights and aspirations 4 Legislative reform or adoption of women, provides a major opportunity for gender equality and equity. The Bill There is no available information about provides amongst other things that: 11 a compatibility study of domestic law dowry and gifts cannot be returned; with the African Charter that was spouses owe each other mutual love, undertaken before its ratification. respect, fidelity, help and assistance, and Though a monist state, Cameroon does in the case of polygamy, each wife has not have a real problem in matters of the right to equal treatment in relation 12 domestication as treaty ratification to other wives; each spouse has free- cannot occur without Parliament’s dom to work without obtaining the 13 authorisation,9 which process should consent of the other; in case of disso- ensure that there is no conflict between lution of a marriage, the wife is entitled a treaty proposed for ratification and the to her share of the marriage property 14 Constitution. The compatibility test is before the husband; and in cases of by way of consulting the Foreign Affairs polygamy, all the widows have the right Committee of the National Assembly to inheritance shared between them in which has the duty to control the consti- proportion to the number of years in 15 tutionality of international treaties and marriage with the deceased. agreements. There is no particular law that was adopted to facilitate implemen- In addition, the draft bill on The tation of the African Charter or Maputo Prevention and Punishment of Violence Protocol. on Women and Gender based Discrimi- nations, protects women and establish However, the government says that legal equality between men and 16 in keeping with international human women. The content of the right to rights law, the Maputo Protocol is in health has been updated as per the conformity with the national law in Maputo Protocol by highlighting the force by reaffirming the traditional civil, right of women to control reproductive political, economic, social and cultural functions and more specifically through rights of women. Some of the rights recognition of a legal right to medical 17 have been consolidated while others abortion. reinforced with the aim of wiping out gender inequality in family manage- Finally of importance is the creation ment, institutionalisation of political by Order 081/CAB/PMd of 15 April equality, greater involvement of women 2011 of an inter-ministerial monitoring in decision-making processes and the drawing up and implementation of 11 Draft Code of the Person and the Family, development programmes.10 sec 215. 12 Draft Code of the Person and the Family, sec 234(3). 13 Draft Code of the Person and the Family, sec 240. 14 Draft Code of the Person and the Family, 8 National Commission on Human Rights and sec 459(2). Freedoms Report on the state of Human Rights 15 Draft Code of the Person and the Family, in Cameroon (2012) 69. sec 545(2). 9 Art 43 of the Constitution. 16 Report of the Ministry of Justice 2005 (2006) 10 Report by the Ministry of Justice on Human 252. Rights in Cameroon in 2009. 17 Penal Code of Cameroon, sec 339. Impact of the African Charter and the Maputo Protocol in selected African states 35 committee for the implementation of stakeholders to ensure their effective international and regional human rights implementation. Significant progress promotion and protection mechanisms has been made towards the promotion including the African Commission. This and protection of the rights of vulnera- inter-ministerial Committee, which ble classes although much is still to be reports to the Prime Minister, is vested done.20 with the power to draw up a list of the different cases before these bodies, Also worth mentioning is a three propose ways of addressing the recom- sector National Gender Policy set up in mendations and/or decisions of these 2012 by government, with the support bodies, ensure the implementation of of GTZ and SNV. This policy concerns validated proposals, brainstorm on the the promotion of equal and equitable possibility of reducing or avoiding situa- access of women and men, girls and tions where the government is blamed in boys to education, training and informa- cases investigated by these bodies and tion; the promotion of equal opportuni- encourage and oversee training schemes ties between women and men in the relating to the promotion and protection domain of the economy and employ- of human rights.18 ment; and the increase in participation and representation of women in the 5 Policy reform or formulation spheres of decision making and elective offices. This invaluably led to lofty initi- atives. More than ever before, gender The Ministry of Women’s Empower- equality is considered to require ment and the Family has carried out women's access to elective posts as in several actions for the promotion of the Electoral Code which includes a women’s rights which resulted in an gender provision in the electoral update of the National Action Plan to process.21 fight Female Genital Mutilation (FGM) The Electoral Code states which focusses mainly on sensitisation that for the election of parliamentarians of both victims and actors of the to the National Assembly, municipal phenomenon; calling on opinion leaders counsellors and senators, ‘each list shall and public authorities on the issue; take into consideration the various soci- multi-form support to the actors and ological components of the constituency concerned. It shall also take into consid- their socio-professional reconversion; 22 and the psychological management of eration gender aspects’. victims.19 This has been followed up by The United Nations Secretary a series of activities and events. General initiated a campaign known as The government admits that the Africa Unite to end violence against women and the girl child in Cameroon promotion and protection of the rights 23 of women according to the norms estab- in 2013. Efforts to improve the living lished under the Maputo Protocol is a conditions of women are discussed in progressive process that calls on all
20 Report of the Ministry of Justice (n 16 above) 18 Fifty-third ordinary session of the African 287. Commission Third Periodic Report of Cameroon 21 Law 2012/001 of 19 April 2012 relating to within the framework of the African Charter on the Electoral Code. Human and Peoples’ Rights Banjul, 9 to 24 22 Electoral Code (n 21 above) art 151(3). April 2013. 23 National Commission on Human Rights and 19 Report of the Ministry of Justice (n 16 above) Freedoms Report on the state of Human Rights 284. in Cameroon (2013) 55. 36 Cameroon framework documents for Cameroon’s excess reproductive rights. In other words, development, including most notably, this Article is an open door legalizing the Poverty Reduction Strategy Paper, abortion in Africa; we condemn it … This law is repugnant to the Cameroon law which is in line with the Millennium which prohibits abortion and its 24 Development Goals (MDGs). legalisation.26
Generally, to ensure better incorpo- In a press conference on 23 September ration of the recommendation on the 2009 and carried by Cameroon Tribune need to take measures for the total and of 24 September 2009, the Minister of effective implementation of the African Women’s Empowerment and the Fami- Union (AU) Solemn Declaration on ly explained why Cameroon ratified the Gender Equality on the one hand, and Maputo Protocol. She declared: the need to formulate a policy on gender representation in positions of responsi- The Maputo Protocol is in line with the bility on the other, it must be under- Head of State’s blueprint project for the society and, consequently, with the policy scored that though the 50 per cent quota orientations thereto. Its ratification is a prescribed by the African Commission further indicator of the continuous has not yet been achieved, initiatives harmony between the national policy and the development directives of the taken by the government in this regard 27 must be noted. These initiatives include, international community. amongst others, an overall brainstorm- ing on the status of the woman in 6 Court judgments Cameroon. Thus, a National Gender Policy (NGP) has been formulated, the In the famous Cameroonian case of vision of which is consistent with the Immaculate Vefonge v Sammuel Lyonga general vision of Cameroon for 2035. It Yukpe, the Court of Appeal of Buea seeks to guarantee the enjoyment of the ruled to sustain a Bakweri custom same rights by men and women includ- whereby a husband is forbidden to send ing equitable and equal participation in away a nursing mother from the matri- the development of the country.25 monial home or worse still contemplate divorce proceedings against her.28 The developments described above have been in spite of condemnation by Furthermore, the NCHRF regis- the Catholic Church. At the 34th gener- tered some cases in which the African 29 al assembly of the National Episcopal Charter was violated. Conference of Cameroon, the Bishops For example: of Cameroon adopted and published, on 27 June 2009, a Declaration which in • Nzecke Marie v Ngo Etogo Apollinaire in substance states that the Church disap- which on 23 January 2012, the proves the will of the law to protect NCHRF received a report by the Ngo women against all forms of social injus- Etogo family denouncing the violation tice and abuse. The Conference stated: of physical integrity suffered by Ms Nzecke Marie, on the part of Mr Etogo Article 14 of the Maputo Protocol really endangers life at birth by granting women 26 Le jour 484 of 13 July 2009 10. 27 Cameroon Tribune No 243 of 24 September 2009 9. 24 National Commission on Human Rights and 28 National Commission on Human Rights and Freedoms (n 23 above) 73. Freedoms (n 23 above) 104. 25 Third Periodic Report of Cameroon (n 18 29 National Commission on Human Rights and above) para 32. Freedoms (n 23 above) 67-69. Impact of the African Charter and the Maputo Protocol in selected African states 37
Appollinaire, her father, who inflicted respect to article 14 of the Protocol on burns on her; health and reproductive rights. How- • Ms Otteh Ernestine Ndam, in which a ever, following the Bishops’ Resolution, teacher in a government primary a protest was held in the Douala Archdi- school in Yaoundé filed a report to the ocese.31 NCHRF to denounce the physical, moral and psychological abuse she suffered regularly at the hands of her Article 14(2)(c) of the Maputo husband, alongside his failure to Protocol on health and reproductive contribute in any way to running of the rights, often regarded as a bone of household; and contention, calls on governments to • Ms Ewane Njombo Dora Claire, widow of late Ewane Nnoko who died in a road … protect the reproductive rights of accident in 2002 in Lagos (Nigeria), women by authorising medical abortion in filed a report to the NCHRF to cases of sexual assault, rape, incest, and denounce the violation of her right to where the continued pregnancy endangers compensation by the management of the mental and physical health of the African Reinsurance Corporation mother or the life of the mother or the (AFRICA-RE), which had not fulfilled foetus. its contractual obligations relative to the case of her late husband’s fatal Article 337 of the Cameroonian Penal accident. Code which deals with abortion severely sanctions the practice. In terms of this The NCHRF having a quasi-judicial provision, abortion can only be under- status settled these matters by reconcil- taken in the case of pregnancy resulting ing the parties with reference to the Afri- from rape and subject to judicial approv- can Charter and the Maputo Protocol. al. Abortion may also be carried out for medical reasons as stipulated in article 7 Awareness and use by civil 339 of the Penal Code. Given the clearly society defined circumstances in which abortion is permissible, the Maputo Protocol The categories of rights that emerge cannot be used to justify infanticide or from the Maputo Protocol have been similar practices.32 classified by the Ministry of Justice into the following three categories: protec- Nevertheless, the Catholic Church tion of women against violence, prohibi- gained the support of the Cameroonian tion of poor treatment of women, and youth, who through youth associations the right of women to control reproduc- opposed this aspect of the Maputo tive functions.30 Civil society organisa- Protocol. By extensive means, including tions in Cameroon are well aware of the social media, they expressed their indig- African Charter and the Maputo Proto- nation, arguing that the Maputo Proto- col. As will be illustrated below, the col legitimises homosexuality in the African Charter has been used in country, contrary to the law in force. NGOs’ work and its provisions mentioned as well. As stated above, rati- 31 http://goliath.ecnext.com/coms2/gi_0199- fication of the Maputo Protocol in 12086493/Cameroon-abortion-the-Catholic- Cameroon has been met with stiffness hierarchy.html (accessed 1 September 2011). 32 http://www.leffortcamerounais.com/2009/ on the part of the Catholic Church with 10/female-empowerment-and-family-minist er-says-cameroon-has-not-legalised-abortion- and-homosexuality.html?cid=6a00d83451c7 30 Report of the Ministry of Justice (n 16 above) 3369e20120a8e780dd970b (accessed 21 Nov- 252. ember 2015). 38 Cameroon
Faced with this lack of understanding of Building on their supplementary the provisions of the Protocol and as a report submitted to the United Nations way to enlighten the public on the Committee on the Elimination of Racial matter, the NCHRF organised, on the Discrimination (CERD), in January occasion of the International Day of the 2010, the Réseau Recherches Actions African Woman on 31 July 2009, a Concertées Pygmées (RACOPY), and FPP panel discussion on the stakes and chal- included the issues raised by indigenous lenges of ratification of the Maputo women and their communities during Protocol.33 the consultations and at the National Forum on Forests in their supplementa- Civil society organisations in Came- ry report to the African Commission. roon have had occasion to submit shad- These issues included the multiple forms ow reports before treaty-monitoring of discrimination faced by indigenous bodies. For instance, the International women in society; violation of their Working Group on Indigenous Affairs reproductive rights; indigenous (IWGIA) submitted complimentary women’s increasing lack of access to information in 2006 to the African health care, water, and traditional Commission in preparation of the revi- resources; and the obstacles to conduct- sion of Cameroon’s periodic report. The ing traditional and income-generating information presented was on the rights activities, which contribute to food inse- of indigenous people in Cameroon. curity, greater marginalisation, and extreme poverty. The report recom- In preparation for the examination mended that the African Commission of Cameroon’s periodic report by the urge the government of Cameroon to African Commission in May 2010, the take concrete measures to protect Centre for Environment and Develop- doubly marginalised indigenous ment (CED), in collaboration with local women. partners, undertook consultations with communities in Eastern and Southern The concluding observations that Cameroon. The consultations took followed the consideration of Came- place in March 2010. The purpose of the roon’s state report are remarkable for consultations was to gather information the number of recommendations relat- on the situation of indigenous women in ing to the rights of indigenous peoples. Cameroon’s forests in order to better Many of the recommendations can be inform the elaboration of a supplemen- said to draw on the information tary report to the African Commission outlined in the supplementary report and to report on the situation of indige- submitted to the African Commission. nous women and peoples in the coun- In addition to recommending that try. Later in March 2010, indigenous Cameroon ‘harmonize the national women in Cameroon also had the legislation with the regional and interna- opportunity to voice their concerns at tional standards on the rights of indige- the National Forum on Forests which nous populations or communities’ and welcomed the participation of 11 indige- ‘work towards the consideration of their nous women. cultural peculiarities’, the African Commission also expressly urged Came- roon to ‘take special measures to guar- antee the protection and implemen- 33 National Commission on Human Rights and Freedoms (n 1 above) 74. tation of indigenous women’s rights due Impact of the African Charter and the Maputo Protocol in selected African states 39 to their extreme vulnerability and the human rights in the African human discrimination to which they are rights system and beyond. subject’. These recommendations consti- tute important legal standards and a The National Advanced Police significant step for indigenous peoples School, Yaoundé, has human rights as a and women. They can now be used at subject and human rights is also main- the national level for the recognition streamed into other subjects. In class- and realisation of rights.34 room lectures, especially on gender and policing, reference is made on the provi- 8 Higher education and academic sions of the Maputo Protocol. Recently, writing some students in their end course disser- tation for the award of the diploma of Superintendent of Police, included in The law faculty of the University of their writing ideas which drew on the Dschang conducts training on human gender provisions of the Maputo Proto- rights. Before 2009, the programme was col in assessing whether police efficien- a Diplôme d’Etudes Supérieures Spécialisées cy might be enhanced if gender concerns (DESS) in human rights and humanitar- are more expressly considered during ian action. Since the University Reform recruitment, training, deployment and in 2009, this programme is the equiva- promotion. Such thoughts are often lent of a masters’ degree and has a regarded as contrary to opposing views module in African human rights law that more women in the police academy which draws content from the African will make the service less efficient. Charter as well as the Maputo Protocol.
At the University of Buea, there is 9 National human rights an introductory course on human rights, institutions (NHRIs) which also touches on the African human rights system. However, the The NCHRF frequently refers to Came- course is an elective for students with a roon’s ratification of the African Charter specific interest in the discipline of and the Maputo Protocol amongst other human rights. In the same vein, the international conventions relating to the Association pour la Defence des Droits de rights of women but regrets that the l’Homme en Afrique Centrale (APDHAC), social and cultural context in which an NGO based at the Catholic Universi- Cameroonian woman live is character- ty of Central Africa (UCAC), has a ised by long lasting practices that largely fully-fledged programme on human emanate from customs and religious rights in Africa. This institution, precepts that encourage or justify through UCAC, offers master’s degree distinction, exclusions or gender based and doctorate programmes in human restrictions, instead upholding the rights. The institution also offers year- primacy of men at all levels.35 long short courses on different aspects of The NCHRF is, however, keen on implementation of the concluding obser- 34 See Forest Peoples Programme ‘Advocacy efforts lead to African Commission’s vations and decisions of the African increased consideration of indigenous women’s rights’ 3 June 2011 http://www. forestpeoples.org/topics/gender-issues/news /2011/06/advocacy-efforts-lead-african-com 35 National Commission on Human Rights and mission-s-increased-consideration (accessed Freedoms Report on the state of Human Rights 1 September 2011). in Cameroon 2007-2008 (2008) 39. 40 Cameroon
Commission. For example, as part of Rights in the Ministry of Justice. The national capacity building in human African Affairs Division at the Ministry rights, the NCHRF organised a training of Foreign Affairs also takes part in this workshop for its focal points in the vari- process. ous state administrations and institu- tions on the universal system for the However, in its concluding observa- submission of reports and follow up on tions, the African Commission regretted recommendations issued by treaty the fact that Cameroon’s second period- bodies.36 ic report did not take into account the concluding observations adopted at the 10 State reporting 39th ordinary session of the Commis- sion following presentation by Came- roon of its last periodic report. In Cameroon has submitted one initial addition, the African Commission noted report and three periodic reports on the that there is no reference in the report to African Charter to the African Commis- the conditions under which the report sion.37 The goal of periodic reports is to was prepared and as to the involvement present the progress and difficulties in of civil society in the drafting process.39 implementing human rights in a coun- try. In the case of Cameroon, periodic reports have been cited as a means to 11 Communications show that international conventions constitute domestic legislation and To date, the African Commission has could be invoked in a court of law in received 11 communications against Cameroon.38 To date, no specific, sepa- Cameroon filed by civil society organi- rate reports on the Maputo Protocol sations on behalf of individuals and by 40 have been submitted. individuals themselves. Of these 11 communications, six communications A state report in Cameroon is were declared inadmissible on grounds prepared by inter-ministerial collabora- ranging from the fact that Cameroon tion between the Ministry of Foreign had not yet ratified the Charter at the Affairs and the Ministry of Justice. time the communications were filed,41 More specifically, the report is prepared to non-exhaustion of local remedies.42 by the Division of International Co- operation and the Division of Human Of all the communications brought before the African Commission against Cameroon, the Open Society Justice Initia- 36 National Commission on Human Rights and tive (on behalf of Pius Njawe Noumeni) v Freedoms Report on the state of Human Rights in Cameroon 2008 (2009) 22. 37 The initial report was presented in 2002 in Pretoria, South Africa. The first report was 39 Concluding Observations and presented in Banjul, The Gambia in 2006 Recommendations on the Second Periodic and the second report, which covered the Report of the Republic of Cameroon, period 2003-2008, was presented during the adopted at the 47th ordinary session of the 47th ordinary session of the Commission in African Commission held from 12 to 26 May May 2010 in Banjul, The Gambia. The third 2010, Banjul, The Gambia. periodic report was submitted during the 40 See http://www.achpr.org/english/_info/ 15th extraordinary session held from 7 to 14 index_Decision_Cameroon.html (accessed March 2014. 21 November 2015). 38 BR Guimdo Dongmo ‘Le droit d’accès à la 41 See International PEN v Malawi, Ethiopia, justice administrative au Cameroun: Cameroon and Kenya (unreported) Contribution à l’étude d’un droit fonda- Communication 19/88 7th Activity Report. mental’ Revue de la recherche juridique-droit 42 See Miss A v Cameroon (2004) AHRLR 39 prospectif (2008) 463. (ACHPR 2004). Impact of the African Charter and the Maputo Protocol in selected African states 41
Cameroon has received the greatest, most took note of the above request and intensive and continuous media atten- closed the file. tion ‒ for over a decade now.43 This case was finalised by way of an amica- 12 Special mechanisms and ble settlement between the parties. The promotional visits by the complaint lodged by an NGO main- African Commission tained that following the liberalisation of airwaves in 2000, an application to In September 2002, Dr Vera Chirwa, the the Ministry of Communications of then Special Rapporteur for Prisons and Cameroon for a licence to operate a Detention Conditions of the African radio station was put forward. After the Commission, visited prisons and deten- six months period prescribed by law, the tion centres in Cameroon. The objective Ministry did not respond favourably to of the visit was to assess and document the request, arguing that the application the conditions of detention in Came- was still being considered. The roon, make immediate recommenda- complainant started broadcasting tions where necessary and initiate programmes, the Ministry of Communi- cooperation with the government of cation banned the radio station and the Cameroon towards the improvement of police and army then sealed the premis- prison conditions in the country.44 es of the radio station. In February 2011, the Chairperson The complainant requested the Afri- of the African Commission, Reine Alap- can Commission to consider the above ini-Gansou headed a delegation to facts as a violation of articles 1, 2, 9 and Cameroon with a special focus on the 14 of the African Charter and pleaded conditions as well as the rights of with the African Commission to request women and journalists who were held Cameroon to pay adequate compensa- in detention. In the delegation was tion to the victim for multiple violations Justice Lucy Asuagbor, a Cameroon of their rights and freedoms. At the 36th national, who served previously as the ordinary session of the African Commis- Special Rapporteur on Human Rights sion, the Minister of Justice at the time Defenders in Africa for the African offered his good offices with a view to Commission and who has just recently facilitating an amicable solution to the assumed the mandate of Special matter. At the 38th ordinary session, the Rapporteur on the Rights of Women in complainant informed the African Africa. The visit to Cameroon was Commission that the government of essentially intended to assess the human Cameroon dropped the criminal charges against the director of the radio station and released the equipment that was earlier confiscated. The government also granted provisional authorisation to broadcast. On its part, the director of the radio station agreed to discontinue the 44 Prisons in Cameroon report of the Special Rapporteur on prisons and conditions of communication before the African detention in Africa ‒ The African Commission. The African Commission Commission on Human and Peoples’ Rights Report to the government of the Republic of Cameroon on the visit of the Special Rapporteur on Prisons and Conditions of Detention in Africa from 2 to 15 September 43 (2006) AHRLR 75 (ACHPR 2006). 2002. 42 Cameroon rights situation in the country.45 real obstacle to the full enjoyment of Commissioner Reine Alapini Gansou rights. Despite the measures taken to noted with satisfaction that Cameroon ensure the peace of the population, the opened its doors to the mission without growing insecurity in some parts of any restraints. The mission met with Cameroon is a major concern that is ministers of external relations, justice, likely to affect the effective promotion territorial administration and decentrali- and protection of human rights in gener- sation, defence as well as the general al and the African Charter and the delegate for national security, Supreme Maputo Protocol in particular.46 Court representatives and the Prime Minister of Cameroon. Above all, Cameroon has not yet complied with the directive which 13 Factors that may impede or requires 50/50 gender parity in parlia- enhance the impact of the ment and in other leadership positions. Women and especially indigenous African Charter, the Maputo women are still marginalised despite Protocol and the African adoption by the African Commission of Commission the Resolution on the Protection of Rights of Indigenous Women in Africa. There are indeed factors that play in favour or against implementation of the Cameroon has also not yet imple- African Charter and the Maputo Proto- mented the concluding observations and col in Cameroon. There are shortcom- recommendations by the African ings both at the level of penal law and at Commission with necessary speed, a civil level. The penal law for example which amongst other recommendations does not define the concept of discrimi- include the call for ratification of the nation against women and does not African Charter on Democracy, Elec- repress it either. Article 242 of the Penal tions and Governance47 and the Proto- Law prohibits discrimination on col to the African Charter on Human grounds of race and religion only. and Peoples’ Rights on Establishing the African Court on Human and Peoples’ Moreover, we note the persistence Rights, and to lodge the declaration of customary and religious practices that under article 34(6) of this Protocol. impede the full enjoyment of rights by women, especially those that deny Some laws or the absence thereof women and girls their rights to inher- are in conflict with the Maputo Proto- itance; the practice of inhuman and col. For instance, marital rape is still not degrading widowhood rites; female punishable under Cameroonian law. genital mutilation; and the primacy of Cultural and customary beliefs seem to masculinity and the patriarchal system. be at loggerheads with the Maputo Protocol. Female genital mutilations To add to these challenges, poverty still exists in some parts of the country and ignorance of women constitute a as well as child marriage and wife inher- itance. In spite of the above, Cameroon 45 ‘Commission verifies human rights in Cameroon’ Cameroon Today February 2011 46 Concluding Observations on the 3rd Periodic http://news.cameroon-today.com/commiss Report of the Republic of Cameroon (2014) ion-verifies-human-rights-in-cameroon/4122 47. /#ixzz1WhTGA41l (accessed 21 Nov- 47 Cameroon has since ratified this treaty ember 2015). thereby launching it into force. Impact of the African Charter and the Maputo Protocol in selected African states 43 has been cooperative in submitting peri- odic reports on the African Charter to the African Commission and has received several delegations from the African Commission on fact-findings missions without restraints as indicated earlier in this report.
Although Cameroon has not hosted any sessions of the African Commis- sion, Chief Justice Lucy Asuagbor, a native of Cameroon, was appointed the African Commission’s Special Rappor- teur on Human Rights Defenders in Africa in 2010 and as stated earlier, she shortly after assumed the mandate of Special Rapporteur on the Rights of Women in Africa. Amongst other duties, Commissioner Asuagbor was allocated Benin, Rwanda, Guinea Bissau and Togo as countries where she will have to undertake promotional missions during her tenure. Her appoint- ments have helped to create more awareness about the African Charter and the Maputo Protocol in Cameroon. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN CÔTE D’IVOIRE
Kounkinè Augustin Somé* Armand Tanoh**
1 Introduction attachment of the state to the African Charter as well as the Universal Decla- Côte d’Ivoire became independent in ration of Human Rights meaning there- 1960 and the independent country's first fore that the rights contained therein are constitution was adopted on 3 August directly enforceable within the state of 2 1960. This Constitution made reference Côte d’Ivoire. to both the French Declaration of the Rights of the Man and the Citizen and Côte d’Ivoire ratified the African the United Nations’ Universal Declara- Charter on 6 January 1992. With rela- tion of Human Rights (UNHR). The tive success, it has endeavoured to give Constitution, however, did not contain effect to the provisions of the African any specific human rights provision.1 Charter as required by article 1 of the Charter, which calls upon members 3 The second constitution of Côte states to take steps in this regard. In the d’Ivoire was adopted on 1 August 2000 past decade, Côte d’Ivoire has witnessed and is still in force. Title I of the Ivoirian several political crises, the latest being Constitution enshrines human rights. the post-election conflict in 2010 which Twenty-two articles of the Constitution claimed the lives of more than 3000 protect human rights. This is a major people between December 2010 and move in comparison to the first consti- April 2011. Women suffered most tution. In addition, the Preamble of the during the crisis, which left massive Ivorian Constitution also proclaims the human rights violations unaccounted for.
Since April 2011, and for the first time in its recent political history, the country has been able to organise non- * LLM HRDA (Pretoria), serving as a Human Rights Officer with the United Nations Operation in Côte d’Ivoire. He is the 2 Para 1 of the Constitution of Côte d’Ivoire of Coordinator of the Technical Cooperation 1 August 2000 (the Constitution). Unit of the Human Rights Division. 3 Art 1 of the Charter reads that: ‘The Member ** LLM HRDA (Pretoria), Advocate at the States of the Organization of African Unity Paris Bar, France. parties to the present Charter shall recognize 1 The first Ivorian Constitution only provided the rights, duties and freedoms enshrined in for key provisions about state organisation, this Chapter and shall undertake to adopt type of government and the main legislative or other measures to give effect to institutions. them.’
45 46 Côte d’Ivoire violent elections. A lot has also been and the Maputo Protocol. Côte d’Ivoire done in recent years with regards to currently faces many human rights chal- Côte d’Ivoire’s interactions with interna- lenges which are mostly connected to tional human rights mechanisms. Since the political crisis the country experi- 2011, new ratifications of human rights enced between 1999 and 2011. During conventions have taken place and the this time, thousands of people were country submitted overdue reports to killed and so far only a few perpetrators international mechanisms, including the have been formally identified. Due to initial and cumulated reports under the this crisis, all civil and political rights as African Charter in 2012,4 the initial and well as socio-economic rights remain cumulated reports under the Interna- priority areas in Côte d’Ivoire.7 tional Covenant on Civil and Political Rights (ICCPR), a second review by the 2 Ratification of African Charter UN-led Universal Periodic Review and the Maputo Protocol (UPR),5 and the creation of a Special Procedure for Côte d’Ivoire under the Côte d’Ivoire ratified the African Char- UN Human Rights Council, with the ter in 1992. The Ivorian Constitution appointment of an independent expert stipulates that the President of the on the situation of human rights in Côte 6 Republic negotiates and ratifies treaties d’Ivoire. and other international agreements to which the state seeks to become a With regard to the situation of party.8 The President requires, however, women and the enjoyment of their authorisation by parliament before rati- rights, several initiatives have been fying any international treaty. More taken both at legislative and policy level. importantly, the Constitutional Council Nonetheless, women in Côte d’Ivoire needs to decide whether the treaty does continue to suffer discrimination. This or does not violate any provisions of the impedes their full enjoyment of the Constitution.9 It is only after the rights stipulated in the African Charter approval by the National Assembly and the decision of the Constitutional Coun- 4 The African Commission held its 52nd cil authorising the President of the ordinary session in October 2012 in Republic to ratify a treaty that the Presi- Yamoussoukro, Côte d’Ivoire. It was during this session that the country submitted its dent may proceed with the ratification first ever state report to the African Commission. 5 Côte d’Ivoire was reviewed twice by the UN Human Rights Council in 2009 and 2014 7 From 1999 to 2011, extrajudicial killings under the UPR. occurred in Côte d’Ivoire. Thousands of 6 The Independent Expert mandate on Côte people were killed. Many Ivorian lost their d’Ivoire was created in 2011. The current property; some remain homeless or and second Independent Expert, Mr internally displaced or were granted refugee Mohamed Ayat visited Côte d’Ivoire twice. status in neighbouring countries. Young After his last visit in January 2015, he held a people are still highly unemployed. press conference during which he paid 8 Art 84 of the Constitution. tribute to the government of Côte d’Ivoire for 9 As an illustration, the President of the progress made with regard to respect for and Republic seized the Constitutional Council protection of human rights, while urging that to ask whether the Rome Statute did not the harmonisation of the national legal violate the Constitution. In its decision framework with international standards be 002/CC/SG of 17 December 2003, the strengthened. He emphasised the importance Constitutional Council held that the Rome of prosecuting all persons responsible for Statute violates the Constitution as it human rights violations and the need to undermines state sovereignty. This decision continue to address sexual violence against in essence was not legally motivated well but women and the situation of children, it indicates the power of the Constitutional including children in conflict. Council in the ratification process. Impact of the African Charter and the Maputo Protocol in selected African states 47 process. This procedure was followed communication channels with treaty for ratification of the African Charter on bodies.12 6 January 1992 and the Maputo Proto- col on 5 October 2011. It should also be noted that the procedure for the preparation of state Decree 61-157 of 18 May 1961 insti- reports to human rights treaty bodies tuted a specific mechanism to monitor has evolved over the years. In the past, the implementation of conventions, the Ministry of Foreign Affairs took resolutions and other instruments rati- charge of the preparation of human fied by Côte d’Ivoire.10 According to rights reports. From 2003, however, a this decree, the Ministry of Foreign ministry of human rights was estab- Affairs prepares the instruments of ratifi- lished with the clear mandate of contrib- cation. After signature by the President, uting to the promotion and protection of the instrument is published in the Offi- human rights. This ministry is now in cial Gazette and is incorporated ipso charge of coordinating the preparation facto into the domestic legal system, of reports to human rights treaty bodies. taking precedence over domestic legisla- 11 tion. Normally, the Ministry of 3 Domestication or incorporation Foreign Affairs dispatches to the rele- vant ministry information concerning According to the Constitution, a treaty, the implementation of thematic instru- once ratified, has a higher status than ments. With regard to gender equality any other law of the land.13 Like most issues and women’s empowerment, the civil law countries, Côte d’Ivoire has a relevant ministry is the Ministry of soli- monist tradition. Therefore, ratified darity, family, women and children treaties are theoretically directly applica- affairs. ble at the domestic level provided that they have been formally published in the However, as recommended by the Journal Officiel and subject to reliance by UPR mechanisms during Côte d’Ivoire's the other litigating party.14 Therefore, second review in 2014, the government treaties, once ratified, form part and committed to reviewing Decree 61-157 parcel of the law in Côte d’Ivoire. The of 18 May 1961 with a view to establish- Maputo Protocol enjoys the same high- ing an inter-ministerial body in charge er status as the African Charter. Follow- of ensuring coordinated interaction with ing ratification and publication, like any the UN and African Union human other convention, the Charter and the rights mechanisms. Human rights focal Protocol were incorporated directly into points within government ministries and the domestic legal system. Further, in national institutions are of the view that accordance with the Constitution,15 such a body will help rationalise the they take precedence over domestic laws. Consequently, in principle, the Charter and the Protocol prevail over national legislation in case of a conflict.
12 Views expressed during discussions at the 10 Côte d’Ivoire’s state report to CEDAW workshop to present the report and http://tbinternet.ohchr.org/_layouts/treaty recommendations of Côte d’Ivoire’s second bodyexternal/TBSearch.aspx?Lang=en&Tre review by the UPR. atyID=3&DocTypeID=29 (accessed 10 Sep- 13 Art 87 of the Constitution. tember 2015). 14 As above. 11 Art 87 of the Constitution. 15 As above. 48 Côte d’Ivoire
The Constitution of Côte d’Ivoire convention would be given after the makes reference to the African Charter Constitution is revised or amended, to in its Preamble16 and provisions similar solve the contradiction.18 For both the to the provisions of the African Charter Charter and the Protocol, the Constitu- can be found throughout the Constitu- tion was not amended to comply with tion. The Constitution enshrines civil the provisions of the Charter or the and political rights as well as socio- Protocol, indicating that its provisions economic rights from articles 2 to 22. were not regarded as being in conflict with the provisions of the Constitution. The Constitution was not amended following ratification of the Maputo After the decade of political crisis, Protocol. during which very few laws were made by parliament, legislative activities have The Ivorian Constitution of August intensified in recent years, with several 2000 does incorporate a great number of pieces of new legislation aiming to give human rights. Chapter I, made of the effect to the provisions of both the Afri- first 22 articles, can be seen as the ‘Bill can Charter and the Maputo Protocol. of Rights’. As mentioned above, Côte d’Ivoire has a monist tradition wherein In recent years and mostly under the duly ratified treaties are theoretically leadership of the Ministry of Solidarity, directly applicable provided that they Family Women and Children Affairs have been regularly published in the (MSFFE), several policies have been Journal Officiel and subject to reciproci- adopted with a view to giving effect to ty.17 As such, there is no need to adopt women’s rights. On 26 March 2012, specific legislation in order to give effect Côte d’Ivoire adopted the national to international norms. Nevertheless, development plan (Plan National de there is no clear indication as to whether Développement – PND).19 The PND is a and how the human rights proclaimed comprehensive framework of all nation- therein can be claimed directly before al development policies. It is built Ivorian courts of law. around six axes, including defence, security, justice and the rule of law, 4 Legislative and policy reform education, health, employment, and social affairs. A draft national policy for In the Ivorian system, compatibility the promotion and protection of human studies take the form of a decision by rights is under finalisation by the Minis- the Constitutional Court as to whether try of Justice, Human Rights and Public an international agreement contradicts Liberties (MDJHLP). the Constitution. When such a decision The government of Côte d’Ivoire of the Constitutional Council confirms a also adopted a National Action Plan on contradiction between the two texts, UN Security Council Resolution 1325 Parliament’s authorisation to ratify the on women, peace and security and created the Ministry of Solidarity, Fami- 16 Para 6 of the Constitution reads as follows: ly Women and Children Affairs, as well ‘The people of Côte d’Ivoire … Proclaim their adherence to the rights and freedoms defined in the Universal Declaration of Human Rights of 1948 and the African 18 Article 86 of the Constitution. Charter on Human and Peoples’ Rights of 19 The PND was adopted in 2012 and has been 1981’. reviewed in 2015 along the same axes and for 17 Art 87 of the Constitution. the period covering 2016-2020. Impact of the African Charter and the Maputo Protocol in selected African states 49 as a Directorate of equality and gender this. Firstly, most of them are not aware promotion to work on gender equality of the international human rights instru- issues. This Directorate within the ments ratified by Côte d’Ivoire. Lawyers MSFFE is aimed at ensuring implemen- have also, however, neglected to tation of the national policy on equal mention or make reference to human opportunities, equity and gender, and at rights provisions in their written submis- instilling an enabling environment for sions. The Human Rights Division of gender mainstreaming in all sectors and the United Nation Operation in Côte at all levels. In 2014, the Directorate d’Ivoire (ONUCI) has been organising was transformed into an Observatory on training and capacity building work- equity and gender. The Observatoire shops for judicial actors on the use of National de l’Equité et du Genre (ONEG), international human rights mechanisms. which is located within the Office of the Prime Minister, was created by Decree One of the main challenges for No-842 of 17 December 2014 with the popularisation of the African Charter is mandate to monitor, evaluate and make that lawyers who are supposed to take recommendations for the promotion of human rights issues to Court do not gender equality in all public policies.20 really play their part. Most of the time, The government also created a Compen- they are focused on issues connected to dium of women competences with a the usual legal subjects such as commer- view to providing government with a cial law, civil law and penal law. Only a comprehensive database of qualified few lawyers who are human rights activ- Ivorian women for the purpose of ists, or are involved in human rights appointing them to high level decision activities, know about the Charter, the making positions. Government has also Maputo Protocol and other human set up a National Committee to fight rights instruments and use these instru- violence against women and children ments in their work. The other factor is and adopted a National Strategy to fight that lawyers may not be familiar with sexual and gender-based violence. international law as well as internation- al human rights law. ONUCI’s Human 5 Court judgments Rights Division together with the Insti- tute for Human Rights and Democracy in Africa (IHRDA) has been providing Unfortunately, the African Charter has briefings and training to judges on the not been mentioned specifically in any use of international instruments and judgment by a domestic court. Judges in mechanisms to protect human rights. Côte d’Ivoire, as in many Francophone During such training, it came out that countries, still rely heavily on domestic only a few lawyers know about the law. There could be many reasons for instruments and fewer have ever used 20 The ONEG is tasked with, amongst other human rights conventions in their argu- things: advising government on issues of ments before domestic courts. equity and gender; implementing of the national policy on equal opportunities, equity and gender; identifying obstacles to 6 Awareness and use by civil gender equality in public policies; monitoring and evaluating the implemen- society tation of Côte d’Ivoire’s international agreements relating to equity and gender equality; suggesting gender-sensitive legis- Civil society and human rights organisa- lative and policy reforms; and collecting and providing credible data on the issues of tions have been very active in Côte gender equality. 50 Côte d’Ivoire d’Ivoire, especially in recent years. They Association Internationale pour la are aware of both the Charter and the Démocratie en Afrique (AID-AFRIQUE), Protocol, although they might not use it Association Ivoirienne pour la Promotion des or refer to it systematically. The political Droits de l'Homme (APDH), Mouvement instability and the massive extra judicial Ivoirien des Droits Humains (MIDH), Club killings that went with it contributed to Union Africaine Côte d’Ivoire (Club UA/ the development of many human rights CI), Association des Femmes Juristes de organisations in the country. The Unit- Côte-d’Ivoire (AFJCI), and Centre Feminin ed Nations Operation in Côte d’Ivoire pour la Démocratie et les Droits Humains, through the Human Rights Division has Soutien aux prisonniers en Côte d’Ivoire, conducted sensitisation activities and (SOPCI), Action pour la Protection des contributed to strengthening the capaci- droits de l’homme, and Ngo Playdoo - CI.22 ties of civil society organisations. Civil society organisations have organised 7 Higher education and academic many activities on human rights and are writing now involved in different campaigns with various human rights agenda’s. Human rights education in primary and secondary schools in Côte d’Ivoire is With the scepticism expressed still developing. Within the framework recently with regard to the prosecution of the UN World programme for human of crimes relating to the post-election rights education,23 the government of crisis by domestic courts, local NGOs Côte d’Ivoire adopted a Decree in 2012, and human rights organisations are formally introducing human rights increasingly vocal on respect for interna- education in the curricula of educational tional conventions. They regularly refer systems at the primary and high school to the Charter in their press releases, levels. This is being pursued at higher monitoring activities and advocacy levels, in the professional training acade- efforts. After Côte d’Ivoire was mies, Police and Gendarmerie Academies reviewed by the African Commission in as well as at the National School of December 2012, some NGOs referred to Administration (ENA), which trains the concluding observations formulated civil servants. by the Commission in their advocacy for more equitable justice as well as in 21 At university level, human rights policy and law reform. education has really evolved over the last few years with the development of Eleven NGOs from Côte d’Ivoire various master’s degrees by the National enjoy observer status with the African University as well as different human Commission. These are: Ligue Ivoirienne rights institutes. The African Charter des Droits de l'Homme (LIDHO), Associa- and the Maputo Protocol are part of the tion Chrétienne Pour l'Abolition des Tortures curricula of the university as well as the et pour le Respect des Droits de l'Homme, institutes. Several public and private
21 NGOs have referred to the concluding observations of the 52nd ordinary session of 22 African Commission on Human and the Commission as well as other treaty Peoples’ Rights ‘NGOs with observer status’ bodies’ recommendations to advocate for the http://www.achpr.org/network/ngo/# Human Rights Defenders’ Act, the law on (accessed 9 September 2015). the national human rights commission and 23 http://www.ohchr.org/EN/Issues/Educatio the ongoing discussions on the draft law of n/Training/Pages/Programme.aspx freedom of association. (accessed 13 September 2015). Impact of the African Charter and the Maputo Protocol in selected African states 51 universities now offer master’s agreed principles in several respects, and programmes in human rights law. renders the Commission more of a consultative body. After more than two Many Ivorian academics have years of operation, the Commission is discussed the African Charter and yet to agree on a national action plan Maputo Protocol but these discussions and internal governance documents, are mostly philosophical and too which so far remain at draft level. academic to have a wider impact in Neither Law 2012-1132 nor the draft Côte d’Ivoire. The literature in Côte action plan make clear reference to the d’Ivoire with respect to the African African Charter or the Maputo Proto- Charter and Maputo Protocol is thus col. Even though the Commission has limited. Tanoh and Adjolohoun, in their plans to increase the level of awareness article on the problems of human rights about the Charter, only some projects 24 litigation in Côte d’Ivoire and Benin, and planned activities of the Commis- pointed out the lack of decisions from sion mention these instruments in the Ivorian courts with respect to human context and justification sections. rights. Lecturers at the National Univer- sity have written and published a few The Médiateur de la République is an articles, which have unfortunately not independent administrative body. It received wider distribution. enjoys constitutional status25 and is an alternative dispute resolution mecha- 8 National human rights nism. Neither the law, nor the 2014- institutions 2015 plan of action of the Médiateur de la République26 make any reference to the Côte d’Ivoire has a national human Charter or the Maputo Protocol. rights commission and an Ombudsman The law on the CNDHCI is not Office known as the Médiateur de la very explicit regarding its role on the République. The current human rights follow up on implementation of commission, the Commission nationale des concluding observations and/or deci- droits de l’homme de Côte d’Ivoire (CNDH- sions of international human rights CI) was established by Law 2012-1132 mechanisms. However, article 2 of the of 13 December 2012. The CNDHCI law which enumerates the powers of the appears to be an independent consulta- Commission could be interpreted to tive body whose functions are to ensure include such prerogatives.27 consultation, evaluation, and make recommendations in the area of human rights. The new law was supposed to make the Commission compliant with 25 The Mediateur de la Republique was instituted the Paris Principles on the establishment by the Constitution. and functioning of national human 26 http://mediateur-republique.ci/ (accessed 15 November 2015). rights institutions. However, and despite 27 Article 2 of Law 2012-1132 of 13 December several advocacy efforts and advices, the 2012 establishing the Ivorian National Human Rights Commission reads, amongst new law does not comply with the other things, that the Commission is tasked to: ensure the ratification of international human rights instruments or adhesion to 24 A Tanoh & H Adjolohoun ‘International law such instruments, as well as their and human rights litigation in Côte d’Ivoire implementation at national level and to and Benin’ in M Killander (ed) International contribute to the elaboration of reports as law and domestic human rights litigation in prescribed by the international legal Africa (2010). instruments to which Côte d’Ivoire is party. 52 Côte d’Ivoire
9 State reporting rights, led by the minister. There were no women in the delegation.29 Despite the mechanism instituted by Decree 61-157 of 18 May 1961 to moni- Amongst the issues of concern tor the implementation of conventions, raised in the concluding observations resolutions and other instruments, there were: non-ratification of several human is no clarity on who does what when it rights treaties, including the Convention comes to state reporting. The responsi- for the Protection and Assistance of bility is rather based on the thematic Internally Displaced Persons in Africa; issues being reported on. For instance, the African Charter on Democracy, the reporting process under the African Elections and Good Governance; the Charter was led by the ministry in Protocol to International Covenant on charge of human rights and public liber- Civil and Political Rights (ICCPR) on ties. Indeed, the Ministry generated the the abolition of death penalty; the first draft with contributions from absence of the declaration pursuant to human rights focal points designed article 34(6) of the Protocol to the Afri- within ministries and institutions. The can Charter on the Establishment of the draft was discussed and validated with African Court; the lack of specific legis- the participation of civil society organi- lation protecting human rights defend- sations. ers; the presence of discriminatory provisions against women in national The ministry responsible for gender legislation; the presence of harmful equality issues and women’s empower- traditional practices that affect women; ment is tasked with implementing the the low level of resources for the imple- Maputo Protocol and the Convention mentation of Resolution 1325 on on the Elimination of All Forms of women, peace and security; the lack of Discrimination against Women. In disaggregated data in the reports; and practice, it will follow the same process the non-functioning of the human rights as above. commission, amongst others.
Côte d’Ivoire submitted its initial Côte d’Ivoire was also encouraged and cumulated reports to the African to repeal all discriminatory provisions in Commission at its 52nd Session in its national legislation and revise civil Yamoussoukro in 2012.28 This was the law relating to the status of persons; to only time the country has submitted a put in place legislative measures and state report to the Commission. There- programmes to resolve the problem of fore, reports have not been submitted sexual and domestic violence; to bring within the agreed timeframe. Although to justice all perpetrators of sexual the 52nd Session was held in Yamous- violence; to put in place legislative soukro, the capital city of Côte d’Ivoire, measures to ensure the protection of the delegation was mainly constituted human rights defenders; to include in its by staff of the then ministry of human next state report up-to-date and disag- gregated data per sex and thematic human rights areas; and to produce the
28 The fact that Côte d’Ivoire was hosting the 29 http://www.achpr.org/files/sessions/52nd/ session of the African Commission could be conc-obs/1-1994-2012/cbservations_conclu one of the reasons that motivated the sives_cote_divoire.pdf (accessed 13 Septem- submission of these reports. ber 2015). Impact of the African Charter and the Maputo Protocol in selected African states 53 next report in line with the Guidelines African Commission found that Côte for the submission of state party reports d’Ivoire has violated its obligations on the African Charter and the Maputo under the African Charter. The first of Protocol. these communications deals with access to land in Côte d’Ivoire by foreigners,32 Many of the above observations and and the second communication deals recommendations have been imple- with the eligibility criteria for the office mented by Côte d’Ivoire. These include of President.33 With regard to the first the declaration pursuant to article 34(6) communication, the law on access to of the Protocol to the African Charter land was not amended and still remains on the Establishment of the African a critical issue. With regard to the eligi- Court to allow individuals and NGO to bility criteria to the presidency, one have direct access to the Court, the Law could first mention that a special decree 2012-1132 establishing the national was adopted in 2005 to allow all politi- human rights commission which in cal parties’ leaders to run for Presiden- many regards, complies with some of cy.34 However, article 35 of the the Paris principles; the accommodation Constitution which restricts the eligibili- of the Rome Statute through revision of ty criteria to the Presidency is still appli- the Constitution (Law 2012-1134 of 13 cable. The newly elected President has December 2012 integrating article 85 bis made a commitment to organise a on the International Criminal Court in referendum in order to amend this the Constitution; the adoption in June provision. 2014 of Law 2014-388 on the protection and promotion of human rights defend- These issues are amongst the ers; the enactment of the law on reasons Côte d’Ivoire went through such marriage adopted in 2013; adoption of a a serious military and political turmoil. National Action Plan on UN security The resolution of these issues is still Council Resolution 1325 on women, partial as far as criteria for eligibility is peace and security; and the creation of a concerned as the constitutional provi- National Committee to fight violence sions have not been fully dealt with. The against women and children. reaction of Côte d’Ivoire in this respect has been confirmed by the African 10 Communications Commission which held that the coun- try has not taken serious steps to comply There are four decided communications with its recommendations. against Côte d’Ivoire before the African Commission,30 three before the ECOW- AS Court of Justice31 and one before the African Court of Human and 31 Henri & 5 Others v Côte d’Ivoire (2009) ECW/ CCJ/JUG/04/09; The National Co-ordinating Peoples’ Rights. In two instances, the Group of Departmental Representatives of the Cocoa-Coffee Sector (CNDD) v Côte d'Ivoire (2009) ECW/CCJ/JUD/05/09. 32 Communication 262/02 Mouvement ivoirien 30 Communications 289/04 Maîtres Brahima de droits de l'Homme (MIDH) v Côte d'Ivoire. Koné et Tiéoulé Diarra v Côte d’Ivoire; 246/02 33 As above. Mouvement ivoirien des droits humains (MIDH) 34 Decision 2005-1/PR of 5 June 2005 v Côte d'Ivoire; 262/02 Mouvement ivoirien de regarding the designation of presidential droits de l'Homme (MIDH) v Côte d'Ivoire; 138/ candidates at the elections of October 2005 94 International PEN (on behalf of Senn and (décision 2005-1/PR du 5 juin 2005 relative Sangare) v Côte d’Ivoire. à la désignation à titre exceptionnel des 31 Simone Ehivet and Michel Gbagbo v Côte d’Ivoire candidats à l’élection présidentielle d’octobre (2013) ECW/CCJ/JUD/03/13; Amouzou 2005). 54 Côte d’Ivoire
11 Special mechanisms – admitted that no satisfactory measures Promotional visits of the had been taken in respect of the recom- African Commission mendations made. The third promotion- al visit of the African Commission took The fact that Côte d’Ivoire hosted the place from 24 to 29 May 2003, and 52nd ordinary session of the African recommendations of the Commission Commission in October 2012 helped were connected to peace building and disseminate the Charter, Maputo Proto- conflict resolution. These recommenda- col and the Commission’s work tions were in line with recommenda- amongst NGOs and the broader human tions issues after the two preceding rights community. visits. Nothing has been done so far with regard to the investigation and In addition, the African Commis- identification of perpetrators. sion has organised three promotional visits in Côte d’Ivoire in 2001 and 2003. The Commission’s Special Rappor- The first visit took place from 4 to teur on Human Rights Defenders, 8 February 2001 and the delegation of Madam Reine Alapini-Gansou visited Côte d’Ivoire on two occasions in 2014 the Commission was headed by Mrs 35 Julienne Ondziel-Gnelenga, a member and 2015. She played an impressive of the Commission and former Special advocacy role in the adoption of the law Rapporteur on the Rights of Women in on human rights defenders in Côte Africa. Given the political context of d’Ivoire. She is still supporting civil soci- that time, the mission in its recommen- ety groups in Côte d’Ivoire to dissemi- dations urged the Ivorian government to nate and sensitise members of the public conduct investigations about allegations on the law. of rape of women in the police college in 2001 and other human rights viola- 12 Factors that may impede or tions that occurred during the electoral enhance the impact of the protests. So far, no trials have been African Charter, the Maputo organised and the perpetrators of these Protocol and the African violations are yet to be identified. The Commission second visit took place from 2 to 4 April 2001. The Chairperson of the Commis- The government of Côte d’Ivoire has sion at that time, Prof EVO Dankwa, the primary responsibility to respect, was the head of the delegation. The protect and fulfil the rights enshrined in delegation met different high level offi- the African Charter and the Maputo cials, amongst them the President and Protocol. In order to respect its interna- ministers, to assess the human rights tional human rights obligations, the situation in Côte d’Ivoire. Different Ministry of Human Rights was estab- recommendations were made to the lished in 2003 with the mandate of government of Côte d’Ivoire, amongst promoting and protecting human rights. them, the setting up of commissions of Despite different campaigns and activi- inquiry on the massive human rights ties organised on the ground, the general violations, the trial of the perpetrators of human rights violations and the submis- sion of periodic reports under article 62 35 http://ci-ddh.org/2015/01/visite-de-la-rapp orteure-speciale-des-defenseurs-des-droits-de of the Charter. The Commission itself -lhomme-aupres-de-la-cadhp/ (accessed 13 September 2015). Impact of the African Charter and the Maputo Protocol in selected African states 55 feeling of civil society organisations is presenting their submissions to the that Ivoirians in general are not aware courts. Lawyers in Côte d’Ivoire have of the existence of the Charter as well as not really been able to submit cases on human rights violations. Only a few the Protocol. Other factors which lawyers who are members of different impede the impact of the African Char- human rights organisations have a ter and the Maputo Protocol in Côte good knowledge of human rights d’Ivoire are as follows: principles and treaties. In the two communications brought before the (a) Political environment: Côte d’Ivoire African Commission, the Mouvement was a very unstable country for more Ivoirien des Droits Humains (MIDH) did than ten years (1999-2011). The civil not have the opportunity of exhausting local remedies as MIDH contended war as well as the economic meltdown 36 has brought the country to its knees. they were not available. If remedies This instability complicates any action were available, this could have been a or effort aimed at the promotion of the very good test for the Ivorian judiciary African Charter in the country. Human with respect to human rights. rights violations are prominent and (d) Poor media coverage: One of the remedies or access to justice are not means of popularisation of a human really available. But as mentioned rights instrument is the media. In Côte above, the Ivorian authorities are fully d’Ivoire, the media has not been very aware of the work of the Commission active in the coverage of human rights as they regularly attend the sessions of activities because of the lack of the Commission. The challenge is to resources and the limited number of convey the messages or to promote the private media agencies. The African Charter at a wider scale. Initiatives are Charter and the Maputo Protocol are being taken but are not sufficient only discussed during commemora- considering the different problems. tions and anniversaries. (b) Lack of awareness and strong reliance of the judiciary on domestic law: As 13 Conclusion mentioned above, the judiciary plays a very important role in the recognition and justiciability of human rights. But, It can be said that the promotion of the so far, no judgment has been rendered African Charter as well as the Maputo outlining violations of provisions of the Protocol still has a very long way to go. Charter or Maputo Protocol. The The large scale of human rights viola- judges still rely heavily on domestic law tions that occurred in the country this because this is the law they know better. There is no serious initiative or past decade is a clear indication of the judicial activism despite different importance of the African Charter and training organised by international the Maputo Protocol as well as other NGOs and international human rights human rights instruments. organisations. The training of judges does not include human rights and Whilst Côte d’Ivoire demonstrated international law as such. The Constitutional Council which is the great ability to comply with the African supreme judicial institution in Côte Charter and the Maputo Protocol, the d’Ivoire with the mandate of protecting adoption of domestic legislation is still the Constitution (which includes undermined by the general lack of coor- human rights provisions) has not dination and the absence of a concrete rendered any specific decisions on human rights. plan of action to domesticate all interna- (c) Lack of serious involvement of lawyers: Having decisions on human 36 Communications 246/02 Mouvement ivoirien rights cases also requires the des droits humains (MIDH) v Côte d'Ivoire ; involvement of lawyers when writing or 262/02 Mouvement ivoirien de droits de l'Homme (MIDH) v Côte d'Ivoire. 56 Côte d’Ivoire tional instruments ratified by the state. The establishment of the Ministry of Justice and Human Rights will definite- ly help in the enforcement of interna- tional human rights norms in general.
In addition, regular reports to the African Commission are also very important to measure the real impact of the African Charter and the Maputo Protocol. The Ivorian State must take concrete, specific and targeted measures in order to give effect to the African Charter and the Maputo Protocol. Popularisation of the African Charter as well as the Maputo Protocol remain essential as most of the citizens are not aware of the existence of these instru- ments. THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN ETHIOPIA
Meskerem Geset Techane*
1 Introduction a federal parliamentary multi-party democracy ‒ a fundamental shift from Known as one of the earliest and auton- the previous centralised form of govern- omous continuing states in the world, ance. The Federal Democratic Republic Ethiopia claims the oldest modern and of Ethiopia (FDRE) is composed of the independent constitution in Africa that Federal Government and nine self- dates back to 1931. The history of the governing National Regional States. legal regime of human rights in Ethiopia The FDRE Constitution ‒ the most starts from the imperial era of Emperor liberal constitution the country has seen Haile Selassie's modernisation of crim- ‒ is the supreme law of the land and inal law and the introduction of basic provides extensive protection for indi- human rights in the 1955 Constitution. vidual as well as group rights and for the After one of the longest legacies of pillars of democracy, as it was intended indigenous monarchal rule in Africa, ‘to address the ills of the previous Ethiopia became a republic under the regime and the political turmoil that 1 1987 Constitution of the Mengistu preceded it’. regime, which also dedicated a chapter to ‘basic freedoms and rights’ that Ethiopia is party to a number of emphasised economic, social and cultur- international and regional human rights al rights, owing to the socialist orien- treaties. The Ethiopian Constitution tation of the regime. The country is incorporates a Bill of Rights that reflects currently governed by the 1995 Consti- the norms of the African Charter, the tution of the Federal Democratic Maputo Protocol and other international Republic of Ethiopia (FDRE Constitu- human rights instruments. A number of tion or Constitution) which established laws enabling the implementation of human rights were promulgated and encourage an environment for the promotion of human rights and democ-
* LLM HRDA (Pretoria); doctoral candidate, Human Rights Centre, University of Padova and former Deputy Executive Director of the 1 TS Twibell ‘Ethiopian constitutional law: Institute for Human Rights and Development The structure of the Ethiopian government in Africa (IHRDA). The researcher and the new constitution's ability to acknowledges the instrumental assistance overcome Ethiopia's problems’ (1999) 21 provided by Ayalew G Assefa, Deborah H Loyola of Los Angeles International and Birhanu & Haile B Daba. Comparative Law Review 369.
57 58 Ethiopia racy. These are nurtured by the creation also saw the introduction of repressive of national human rights institutions laws in Ethiopia that have been increas- and a growing number of civil society ingly condemned for violating interna- organisations (CSOs), opposition politi- tional standards, such as the notorious cal parties and private media. The Charities and Societies Proclamation FDRE Constitution also commendably (CSOs Law) and the Anti-Terrorism incorporated both general and specific Proclamation which restrict the activi- provisions on the rights of women.2 ties of civil society, political parties, Following this, the adoption of the human rights defenders and journalists.4 revised Family Law of 2000 was a land- The treatment of suspects, accused mark step forward in addressing persons and detainees, and prison condi- comprehensive issues concerning the tions fall short of international stand- rights of Ethiopian women in marital ards.5 Though the Constitution and family affairs. The (Revised) Crimi- guarantees judicial independence, Ethi- nal Code of 2004 was introduced to opian courts have continuously been provide better protection from discrimi- criticised for tainted independence.6 nation and violations such as rape, Impunity is also a problem; failure of abduction, Female Genital Mutilation the government to enforce accountabili- (FGM), domestic violence, sexual ty of the armed forces and the police for exploitation and harassment. The abuses perpetrated especially in relation government formulated the Women’s to the 2005 post-election violence is a National Policy (1993) and promoted case to rest.7 Moreover, in spite of the gender mainstreaming in all its develop- progress recorded in relation to ment policies and strategies to tackle women’s rights, female genital mutila- gender inequality. Equally, affirmative tion, early marriage, abduction, domes- action measures in education and poli- tic violence, child trafficking and sexual tics have been implemented and the participation of women in higher educa- tion and politics has grown noticeably.
Despite notable positive steps, restrictions on freedom of expression, assembly, association, and movement 3 Rights Watch ‘World Report 2015: Ethiopia’ https://www.hrw.org/world-report/2015/c continue to be alarming matters in Ethi- ountry-chapters/ethiopia (accessed 20 Sep- opia. As repeatedly criticised by interna- tember 2015). 4As above. tional commentators, suppression of the 5 See Ethiopian Human Rights Commission media (both print and online media), (EHRC) ‘Monitoring Report on the treatment persons under police custody’ harassment, intimidation, arrest and (Amharic) (2013); see also African detention of journalists, human rights Commission on Human and Peoples’ Rights Report of the Mission of the Special Rapporteur defenders, supporters and members of on Prisons to Ethiopia (2004) www.achpr.org/ opposition political parties and peaceful .../mission-reports/ethiopia/misrep protesters shattered the human rights (accessed 17 August 2015). 3 6 World Bank ‘Ethiopia legal and justice sector record of the country. The past decade assessment’ (2004) http://siteresources. worldbank.org/INTLAWJUSTINST/Resou rces/EthiopiaSA.pdf (accessed 2 September 2015), See also Freedom House ‘Freedom in 2 See arts 34 & 35 of the Constitution. the World: Ethiopia’ (2014) https:// freedom 3 See ‘Amnesty International Report 2014/ house.org/report/freedom-world/2015/ethi 2015’ https://www.amnesty.org/en/countri opia (accessed 21 September 2015). es/africa/ethiopia/report-ethiopia/ 7 See Amnesty International & Human Rights (accessed 20 September 20015.); Human Watch (n 3 above). Impact of the African Charter and the Maputo Protocol in selected African states 59 exploitation of girls remain key areas of it.12 There have been lobbying efforts concern.8 from government and non-government stakeholders towards ratification. The The Ministry of Foreign Affairs Ministry of Women, Children and (MoFA) of Ethiopia is the responsible Youth Affairs (MoWCYA) in particular government body mandated by law to initiated a ratification process in 2010 deal with all communications with which was stalled at the Cabinet level.13 international human rights bodies as per There was another proposal instigated 9 the pertinent treaties. MoFA, being the by MoFA in 2014 that successfully focal point, consults with other relevant passed the approval of the Cabinet and government bodies in accordance with made it to Parliament, where it is their mandates and areas of expertise. currently under scrutiny.14 Accordingly, MoFA has been reporting to as well as communicating with the International treaties in Ethiopia are African Commission on matters related concluded by the executive and then to the implementation of the African submitted to the House of People’s Charter in Ethiopia. Representatives (Parliament) for ratifica- tion as per article 55(12) of the Constitu- 2 Ratification of the African tion. The Constitution bestows the power of negotiating and signing inter- Charter and the Maputo 15 Protocol national treaties to the executive; and MOFA is specifically mandated by law to coordinate this process.16 Ethiopia ratified the African Charter on The power 15 June 1998 without reservation.10 to ratify any international treaty, includ- ing human rights treaties, is given to the According to the accession Proclama- Parliament.17 tion,11 the rationale behind the ratifica- The Parliament ratifies tion of the African Charter is the those treaties, signed and submitted by conviction that ratifying the African the executive, after thorough delibera- tion and forwards them to the president Charter supports the principal interna- 18 tional human rights instruments Ethio- of the republic for signature. The pia is already a party to; and will process of ratification of a certain treaty complement Ethiopia’s consistent starts either at the MoFA or the respon- support for regional and international sible Ministry. Studies are normally efforts to achieve normative standards done on the effects of a certain treaty by for basic human rights. the Ministry initiating the ratification and the proposal for ratification together Ethiopia signed the Maputo Proto- with the relevant study will be submitted col on 1 June 2004 but has not ratified 12 http://www.achpr.org/instruments/women- protocol/ratification/ (accessed 23 August 2015). 8 Committee on the Elimination of 13 Interview with Mr Dereje Tegyebelu, Discrimination against Women, Concluding Director, Legal Affairs Directorate, observations: Ethiopia (2011) http://www MoWCYA (2 November 2015). 2.ohchr.org/english/bodies/cedaw/docs/co 14 Interviews with MoFA officers (24 Septem- /CEDAW-C-ETH-CO-7.pdf (accessed ber 2015). 21 August 2015). 15 Art 55(12) of the Constitution. 9 See Proclamation 708/2010. 16 See art 25(2) of Proclamation 4/1995. 10 http://www.achpr.org/instruments/achpr/ 17 As above. ratification/ (accessed 23 August 2015). 18 Art 57 of the Constitution. The signature by 11 See Preamble of Proclamation 114/1998: the President is more of ceremonial as the Accession to African Charter on Human and treaty will come into force after 15 days Peoples’ Rights Charter. irrespective of signature by the President. 60 Ethiopia to cabinet. Once it achieves the assent of Cassation Division20 which directly cabinet, a treaty will be passed to Parlia- invoked the provisions of the Conven- ment for consideration and decision. tion on the Rights of the Child (CRC) in a landmark judgment of 2007.21 The 3 Domestication of the African status of international treaties in the Charter and the Maputo Ethiopian legal regime has been a Protocol subject of debate as no clarity has been provided either in the Constitution or other legislation. Article 9(1) of The The African Charter is incorporated in FDRE Constitution provides that the the Ethiopian legal system by virtue of Constitution is the supreme law of the article 9(4) of the Constitution which land with the effect that any contradicto- clearly states that international agree- ry law shall be void. On the other hand, ments ratified by Ethiopia are integral article 13(2) of the Constitution provides parts of the law of the land. In practice, that the Bill of Rights shall be interpret- the African Charter and all international ed in a manner conforming to interna- instruments ratified by Ethiopia are tional instruments adopted by Ethiopia. fused into national law through a ‘ratifi- The Constitution elevated international cation proclamation’ ‒ a piece of legisla- human rights treaties binding Ethiopia tion promulgated by Parliament in the to a status higher than any ordinary official law gazette (the Federal Negarit legislation, and equal to the Constitu- Gazeta). By such legislation, Parliament tion.22 simply declares the ratification of the The Federal Supreme Court instrument without reproducing and (Cassation Division) recently estab- domesticating its text. Consequently, lished a precedent in the famous case of this study did not find any domestic Tsedale Demissie v Kifle Demissie wherein legislation that explicitly domesticated it settled a case of child custody by the provisions of the African Charter. giving primacy to the best interest of the child principle of the CRC over the 23 Though article 9(4) of the Constitu- provision of the family law. Thus, as tion as above prescribes a monist one of the human rights instruments approach as to domestication of interna- ratified by Ethiopia, the African Charter tional instruments, a deep rooted culture hence is not only part of Ethiopian law of dualism prevailed in practice as a result of legislation requiring publication 20 It must be noted that the Cassation Division of all laws in the Federal Negarit Gazeta has the final judicial power over fundamental to effect judicial notice of those laws.19 errors of law as per art 80(3)(a) of the Constitution. This brought tendencies that publication 21 In Tsedale Demissie v Kifle Demissie Federal of the text of a ratified treaty in the offi- Cassation File 23632 (6 November 2007), the Court directly applied the provision of the cial gazette in the official language is a CRC arguing that ‘… the UN Convention on requirement for that treaty to become a the Rights of the Child – one of the Conventions which Ethiopia has ratified in directly applicable law of the land just 1992 – and which has become the integral like other legislation enacted by Parlia- part of the law of the land by virtue of art 9(3) …’ ment. The controversy seems to be 22 See I Idris ‘The status and application of resolved by the Federal Supreme Court international treaties in Ethiopia’ (2000) 20 Journal of Ethiopian Law 113; T Soboka ‘The monist-dualist divide and the supremacy clause: Revisiting the status of human rights treaties in Ethiopia’ (2009) 23 Journal of Ethiopian Law 132. 19 Arts 2(2) and (3) of Proclamation 3/ 1995. 23 Tsedale Demissie (n 21 above). Impact of the African Charter and the Maputo Protocol in selected African states 61 with a higher status in the hierarchy, but from torture, inhuman and degrading also authoritative text for the interpreta- treatments; access to justice; due process tion of the Bill of Rights. This notwith- and fair trial rights; and freedoms of standing, the status of international movement, religion, opinion, expres- human rights instruments vis-à-vis the sion, assembly and association. Though Constitution remains tricky in light of the limited nature of this study does not the supremacy of the Constitution. It allow exhaustive description and in- may logically follow that the provisions depth analysis of each of these rights, a of the African Charter (and other inter- close reading affirms that the provisions national human rights instruments) have maintain conformity with the norms of equal importance with the Bill of Rights the African Charter. provisions to the extent that they do not contradict the Constitution.24 The Bill of Rights incorporated specific provisions that address The Constitution of Ethiopia recog- women’s rights and gender equality nises a long list of rights ranging from issues in a manner corresponding with civil and political rights to socio- the norms of the Maputo Protocol and economic and group rights. The African the African Charter. The FDRE Consti- Charter cannot be said to have played a tution can, in fact, be cited as one of the significant role during the drafting of more progressive constitutions in Africa the Bill of Rights, as the adoption of the when it comes to women’s rights. For 1995 Ethiopian Constitution precedes instance, article 34 of the Constitution the ratification of the Charter by Ethio- dealing with family rights provides for pia in 1998. It is also important to note equality of women and men in conclu- that the Bill of Rights was not changed sion, duration and dissolution of after Ethiopia became a party to the marriage; and article 35 of the Consti- African Charter. Most importantly, the tution, devoted to the rights of majority of the rights recognised under women, guarantees equality in mari- the African Charter, the Maputo Proto- tal affairs, employment rights, proper- col and other international human rights ty rights (including equal rights over instruments are enshrined in the Consti- land and inheritance), maternity tution. rights in employment, access to fami- ly planning information and services, The traditional civil and political protection from harmful traditional rights, mostly replicated from the practices, the right to consultation, Universal Declaration of Human and entitlement to affirmative meas- Rights, are comprehensively provided ures. The Bill of Rights also provides for. These range from equality before ample protection to children under the law and protection against discrimi- article 36 that conforms to the African nation to the rights to life, liberty, physi- Charter and the Maputo Protocol, as cal security and integrity; protection well as other relevant international instruments dealing with children’s rights. 24 This excludes the application of the interpretation clause (art 13(2) of the Constitution) to cases where clear Social and economic rights (SER) discrepancies exist between the Constitution are also covered under the Ethiopian and international instruments. See AK Abebe ‘Human rights under the Ethiopian Bill of Rights. Article 41(4) imposes a constitution: A descriptive overview’ (2011) duty on the government to provide 5 Mizan Law Review 48. 62 Ethiopia access to health, education and other development.30 The importance of these social services ‘to the extent the coun- rights for Ethiopia as a country with a try’s resources permit’. The Constitu- rich and varied mix of ethnic groups is tion also guarantees several socio- immense especially in the context of economic rights as part of the National remedying past problems and upholding Policy Principles and Objectives25 that the equality of all peoples as enshrined fall outside the Bill of Rights. The under article 19 of the African Charter. provisions of the Constitution dealing However, the Bill of Rights falls short of with SER, though arguably justiciable, recognising important peoples’ rights as are criticised for not being formulated provided under the African Charter such in a clear cut ‘rights language’ that as the rights of peoples to existence, to establishes individual or collective justi- free disposal of wealth and natural ciable rights as in the African Charter resources, and to peace and securi- and other international instruments.26 ty.31 A notable departure of the FDRE Constitution in respect of SER is that The Constitution allows the possible the provisions often refer to Ethiopians suspension of most of the fundamental as subjects of the rights unlike the Afri- rights and freedoms to ‘the extent neces- 32 can Charter that guarantees the rights to sary’ with only very few exceptions. all persons.27 The Constitution also What is dangerous is that the derogation lacks provisions on individual cultural provisions fall outside the Bill of Rights rights as it simply provides for the duty (Chapter 3 of the Constitution) and are of government to protect cultural and not subject to the interpretations clause historical heritage.28 applicable to the Bill of Rights; there is no constitutional imperative for their The Ethiopian Bill of Rights is interpretation in the light of internation- applauded for enshrining the rights of al human rights instruments. peoples’ (nations, nationalities and peoples); becoming the only in Africa The Bill of Rights is justiciable as that guarantees the right to self-deter- the Constitution clearly establishes the mination of peoples’ in congruence with duty of courts to enforce fundamental article 20 of the African Charter.29 In rights and freedoms, and the right of addition to self-administration, it also everyone to bring a justiciable matter to 33 preserves peoples’ rights to freely court to get remedy. express and develop their culture and language, and exercise their right to
30 See arts 39(2)(3) & 43 of the Constitution 25 Arts 89 & 90 of the Constitution. and art 22 of the African Charter. 26 They are said to be formulated in a manner 31 Arts 20, 21& 23 of the African Charter. creating government obligations rather than 32 See arts 91-94 of the Constitution. The only rights which begs for arguments about their exceptions are the protection against cruel, justiciability. See Abebe (n 24 above). inhuman, and degrading treatment or 27 See art 41 of the Constitution and arts 15-17 punishment, and slavery or servitude, and of the African Charter. It is to be noted that trafficking (art 18), the right to equality and art 4 of the ICESCR leaves room for equal protection of the law (art 25), and the developing countries to determine the scope right to self-determination up to secession of application of the rights to non-nationals. (art 39). 28 Arts 44 & 91 of the Constitution. 33 See arts 13(1) & 37(1). See also 29 See art 39(1); see also C Heyns & SA Yeshanew ‘The justiciability of human W Kagoungo ‘Constitutional human rights rights in the Federal Democratic Republic of law in Africa’ (2006) 22 South African Journal Ethiopia’ (2008) 8 African Human Rights Law of Human Rights 673 678. Journal 273 277-279. Impact of the African Charter and the Maputo Protocol in selected African states 63
4 Legislative and policy reform economic rights. A Proclamation on the Registration of Vital Events and Nation- Legislative measures have been taken by al Identity Card has been issued to both the Federal and Regional States’ create a mechanism for the registration legislative organs to enhance the protec- of vital events which was followed by tion of human rights in Ethiopia. In establishing the Vital Events Registra- 34 spite of the absence of any constitutional tion Agency. The list is clearly not amendment since ratification of the exhaustive. These and other enabling African Charter, several laws and poli- pieces of legislation do not however cies came in to effect afterwards. Some make any explicit reference to the Afri- of these laws give effect to the African can Charter or the Maputo Protocol. Charter by virtue of correspondence in norms (though no cases of direct causal- On the other hand, regressive laws ity found); and some derogate from the were passed by Ethiopia in recent standards provided for in the African years leading to serious human rights Charter. violations which have been the subject of criticism at the national as well as Positive examples include the international level. Notable examples Revised Family Law of 2000 which include the Access to Information Proc- guarantees equality of spouses during lamation of 2008 which imposes restric- the conclusion, duration and dissolution tions on freedom of expression, of marriage, equality in common prop- compelling journalists and the mass erty management and administration of media to disclose their sources of infor- family matters, and sets the minimum mation. The Anti-Terrorism Proclama- age of marriage at 18 years for both tion of 2009 stifles dissent through the males and females. The Revised Crimi- use of accusations of terrorist activities nal Law of 2004 was a normative step mainly against journalists and members forward in introducing wider safeguards of opposition political parties. The against violence and exploitation of chil- Charities and Civil Societies Proclama- dren and women, sexual crimes and tion of 2009 curtails the exercise of free- crimes against humanity, amongst dom of association and assembly, others. The Labour Proclamation of and suppresses the activities of civil soci- 2003 and its amendments, the Right to ety. The Electoral Decree of 2014 also Employment of Persons with Disability prohibited civil society organisations Proclamation of 2008, the Public Serv- from ‘campaigning’, including providing ants Pension Proclamation of 2011 and human rights education, on any issue the Private Organization Employees’ relevant to elections. Pension Proclamation of 2011 provided comprehensive legal frameworks for the In line with the National Policy implementation of employment related Principles and Objectives provided in rights. In addition, several other procla- the Constitution (Chapter 10), Ethiopia mations such as the Higher Education adopted a number of development- Proclamation of 2009; the Social Health focused policies that facilitate the reali- Insurance Proclamation of 2010; and sation of human rights in general; as Expropriation of Land Holdings for well as specific policies relevant to the Public Purposes and Payment of Compensation Proclamation of 2005 34 See Proclamation 760/2012 and Regulation addressed a range of social and 278/2012. 64 Ethiopia implementation of human rights norms. power of constitutional adjudication is The Democratic System Building Policy not given to courts, but rather to the (2002) provides a framework for build- House of Federation (lower house of the ing democratic rule, good governance Parliament) upon recommendation by and social justice. The Criminal Justice the Council of Constitutional Inquiry Policy (2010) dealt with policy matters (CCI).37 This in practice limits to a concerning crime prevention, criminal large extent the use of international justice administration and the protection instruments as well as the interpretation of vulnerable groups. The Women’s of the Bill of Rights by Ethiopian courts. Policy (1993) that laid down the policy framework for the realisation of There are some notable cases in women’s human rights has been which international human rights instru- strengthened through subsequent ments are used by the CCI and the national strategies and action plans.35 Federal Supreme Court (Cassation Divi- National action plans that address social sion). The CCI referred to the African protection and the welfare of children, Charter in its decision concerning the older persons and persons with disabili- constitutional question raised by the ty were introduced.36 The National petitioners in the case between Assefa Human Rights Action Plan (NHRAP) Abrha and others v Federal Ethics and Anti- 38 was adopted in 2013 to advance the Corruption Commission. The Council respect, protection and fulfillment of the illuminated that the right to bail has human rights guaranteed by the Consti- limitation under international and tution in a comprehensive and structural regional law, particularly the African manner. Except for the NHRAP, none Charter as well as other human rights of these and other policies make direct instruments. It ruled that the law that reference to the African Charter (or the denies bail in cases of some serious Maputo Protocol) but they reflect the crimes is constitutional and in line with norms therein and give effect to the international human rights instruments. same. The Federal Supreme Court cites international human rights instruments 5 Court judgments in only a few cases. Apart from the notable case of Tsedale Demissie v Kifle The practice of Ethiopian courts in Demissie, the Supreme Court has also general reflects rare use of international directly applied the African Charter on human rights instruments in adjudica- the Rights and Welfare of the Child in tion at all levels within the judiciary. It the case of The House of the Federation of is also worth noting that in Ethiopia, the Democratic Republic of Ethiopia (the HOF)
35 See S Demessie & T Yitbark ‘A review of National Policy on Women’ (2008) in 37 The Council of Constitutional Inquiry is a T Assefa (ed) Digest of Ethiopian National quasi-judicial body constitutionally man- Policies, Strategies and Programs (2008) 93-125. dated to examine constitutional disputes and The National Action Plan on Gender submit interpretive recommendations to the Equality (2002-2006 and beyond), and the House of the Federation which has the ulti- recent National Strategy and Action Plan on mate say on constitutional interpretation. Harmful Traditional Practices against See arts 82, 83, and 84 of the FDRE Consti- Women and Children launched in 2013 are tution. notable frameworks. 38 For a thorough discussion of the case see 36 See Ministry of Labour and Social Affairs W Demissie ‘The Right to Bail in Ethiopia: http://www.molsa.gov.et/English/SWD/ Respective Roles of the Court and the Pages/index.aspx (accessed 15 October Legislature’ (2009) 23 Journal of Ethiopian 2015). Law 2. Impact of the African Charter and the Maputo Protocol in selected African states 65 and others v Rev Mamo Yitaferu as a basis The obvious reason for minimal of remedy by setting aside the Civil usage of the Maputo Protocol, Code provisions.39 However, review of compounded by a lack of awareness, is Supreme Court decisions shows that the the fact that it is not a ratified instru- African Charter has not been used in ment. When it comes to case law, aside any binding decisions and is used occa- from the awareness deficit, the civil law sionally in dissenting opinions. Lower tradition adopted by the Ethiopian legal courts are no exception to this general system poses certain limitations, as trend; their practice typically reflects much allegiance is directed towards only occasional reference to conventions codified law. As a result, the idea of by the International Labour Organisa- reference to case-law of the African tion (ILO) in employment related Commission has not yet been conceived disputes. by many judges. Irrefutably, the provi- sions of the African Charter and the Judges admit that use of the African findings of the African Commission in Charter as a basis for interpretative interpreting the provisions of the Bill of guidance or remedy in binding judg- Rights will go a long way towards ments is rarely attributed, mainly due to enforcing constitutional rights and 40 limited awareness and access. Inacces- enriching domestic human rights juris- sibility of the instruments in working prudence. languages coupled with case backlogs are perhaps amongst the limiting factors 6 Awareness and use by lawyers which prevent judges from making ‘extra efforts’ to look for reference The practice of lawyers in Ethiopia in outside the ‘hands-on’ domestic laws.41 respect of the application of internation- For that matter, judges are mostly left al human rights instruments is no excep- unaware of the contents of ratified trea- tion to that of judges. The study ties as ratification proclamations do not revealed that international instruments publish full texts of the various treaties. are rarely referred to by lawyers in their In addition, availability of treaties in the written submissions as well as oral argu- working languages of the courts has ments. Similarly, major reasons cited for been difficult. It is important at this the lack of reference to regional instru- juncture to note that none of the African ments are the lack of awareness and Union or United Nations official accessibility of these instruments.42 The languages is the language of Ethiopian CRC and the ILO conventions are courts, and that Ethiopian courts are better utilised by lawyers in relative required to take judicial notice only of terms while use of the African Charter is those laws as they appear in the official almost non-existent. It has come up gazettes. very clearly that only a few practicing lawyers are in fact aware of the African human rights system.
39 As above. 40 Interviews with Justice Bewket Belay & Jus- 42 Interviews with Attorneys Mr Hassabe Mulu tice Belachew Anshiso of the Federal (2 September 2015), Mr Fekadu Mola Supreme Court (31 August 2015). Other (30 October 2015) and Mr Amaha judges who participated through question- Mekonnen (12 November 2015). Other naires and group discussions also shared lawyers who participated through group similar opinion. discussions and questionnaires conceded 41 As above. with the statement. 66 Ethiopia
The dearth of promotion of these ration in terms of transfer of experiences instruments in legal trainings and around using relevant treaties. national human rights activities highly contributes to the limited awareness 7 Awareness and use by civil amongst lawyers and consequently a society lack of visibility of the African Charter 43 in the Ethiopian legal practice. It must Currently, there is no adequate presence be noted that many lawyers do not of human rights NGOs in Ethiopia. pursue human rights as a career as it is More so, the level of awareness and perceived to be the work of NGOs. engagement of civil society groups in Most lawyers focus on commercial and respect of the African Charter and the company law, which mostly does not Maputo Protocol is low. The more require direct use of human rights notable Ethiopian NGOs do not have instruments and generally does not international human rights programmes involve active human rights litigation. that regularly engage with international There are only a few lawyers who human rights institutions and proce- specialise in human rights and even dures. fewer who are affluent with knowledge and experience of the African human There are only two Ethiopian rights system and of these, many either NGOs that currently have observer do not engage in litigation practices or status with the African Commission ‒ work outside Ethiopia. In this regard, the Human Rights Council (HRCO) and the importance of sensitising workshops Justice for All ‒ Prison Fellowship Ethiopia. on the use of the African Charter and These NGOs attend the African case law of the African Commission Commission’s sessions from time to 44 was underscored by lawyers. time though do not actively participate in the activities of the Commission. Lawyers’ associations also do not Moreover, they have not engaged much incorporate activities that promote use with the individual complaints proce- of the African Charter. For instance, the dure, the special mechanisms, shadow Ethiopian Lawyers Association (ELA) reporting or other platforms and mecha- provides continuous training for lawyers nisms of the Commission. and also organises discussions on laws; but it has not included the African Char- CSOs in Ethiopia in general have ter or any of the African instruments in rarely used the African Commission’s 45 its activities. Though ELA is a communications procedure. Only four 46 member of regional lawyers groups communications involving Ethiopia which actively engage with the African have been settled by the African human rights instruments and mecha- Commission since the state ratified the nisms, there has not been much collabo- African Charter and yet none of those were submitted by Ethiopian CSOs. 43 Interviews with representatives of the One communication was in fact submit- Ethiopian Lawyers Association, Mr Tamirat ted by an Ethiopian NGO (the Ethiopi- Kidanemariam, President & Mr Manyawkal Mekonnen, CEO (10 November 2015). an Women Lawyers Association ‒ 44 Interviews with Attorneys (n 42 & 43 above). EWLA) in 2007 but it was not pursued 45 Interviews (n 43 above). 46 ELA is a member of the Pan African due to initiation of an amicable settle- Lawyers Association (PALU) and an ment that was believed to be favourable observer member of the East African Law Society. Impact of the African Charter and the Maputo Protocol in selected African states 67 to the victim.47 The African Charter and NGOs that previously engaged in the jurisprudence of the African human rights work had to close their Commission have not served as a key human rights programmes and shift resource in the hands of Ethiopian their focus to service or development NGOs, CSO's or human rights defend- oriented programmes. A typical exam- ers. It is the writer’s observation that ple is the Action Professional Associa- there is a general hesitation or fear tion for the People (APAP), a amongst CSOs, human rights advocates prominent human rights advocacy and lawyers when it comes to resorting NGO, which closed down its human to international mechanisms. rights programmes in order to survive the new funding requirements. Those The use of the Maputo Protocol by who chose the path of human rights ‒ women’s rights organisations is invisi- such as EWLA and HRCO ‒ had to ble, and this is attributable to the fact downsize their programmes and main- that Ethiopia has not ratified the Proto- tain only minimal operations due to col. A few NGOs such as EWLA and immense resource constraints. the Network of Ethiopian Women’s Associations (NEWA) have been 8 Higher education and academic promoting the Maputo Protocol through writing awareness creation and lobbying forums. The 2012 Maputo Protocol ratifi- In Ethiopia, a revised and nationally cation campaign organised by NEWA harmonised new curriculum for under- in collaboration with other women’s graduate legal studies was introduced in rights groups is worth noting. There is 2008. Under this curriculum, courses on however no awareness or promotion of international human rights, African the General Comments of the African human rights and African Union law Commission on the Provisions of the are offered in all law schools in the Protocol relating to women's rights. country. The African human rights law The number of human rights NGOs course is designed to deal directly with in Ethiopia has decreased since the the regional human rights system in enforcement of the CSOs Law that Africa; the major instruments covered requires local/human rights CSOs to being the African Charter, the Maputo raise 90 per cent of their funding from Protocol and the African Charter on the local sources.48 As a result, many Rights and Welfare of the Child. It is also noted that there are some postgrad- uate human rights programmes run by 47Interview with Ms Zenaye Tadesse, Executive Director of EWLA (12 November Ethiopian universities which incorpo- 2015). The communication was submitted rate the African human rights system as on behalf of a girl who was abducted and raped by a man, and yet did not get justice well. For instance, at Addis Ababa from domestic courts. EWLA reported that University, the oldest in the country, the case was dropped as the Ethiopian government recognised the violations and courses that deal with African human offered satisfactory remedies. Nevertheless, rights are offered by both the Faculty of one of the co litigants before the Commission, Equality Now, continues to Law and the Centre of Human Rights at pursue this case. an undergraduate and postgraduate 48 See art 2(2) & (3) of Proclamation 621/2009. Those CSOs that receive more than 10 per level. Moreover, the African human cent of their funding from foreign sources are rights system is fairly well represented in prohibited from engaging in human rights advocacy work by virtue of art 14(5) of the extra-curricular activities such as moot Proclamation. 68 Ethiopia court competitions. The growing partici- dissertations by students that make use pation of Ethiopian universities in the of the African Charter is increasing. annual African Human Rights Moot Relevant scholarly articles in local Court Competition has not only helped journals are still very limited but more to bring greater exposure to the African are being published in foreign journals. Charter but also to the case law and procedures of the African Commission. 9 National human rights institutions There are no significant academic writings in Ethiopia on the subject of the The Ethiopian Human Rights Commis- African Charter, the Maputo Protocol sion (EHRC) was established by law in or the African Commission, probably 2000 and is armed with an extensive because of the late introduction of Afri- mandate around the promotion and can human rights course in law school protection of human rights in Ethio- education. Though there are several arti- pia.51 cles that make reference to the African Charter or the Maputo Protocol, while EHRC was granted affiliate status discussing different human right issues, with the African Commission in 2006,52 there are few published articles directly and engages with the African Commis- dealing with the said instruments or the 49 sion by attending sessions and collabo- African Commission. Though there rating with the special mechanisms. It are a few scholars who have contributed has not, however, submitted any reports notable academic writings on the Afri- to the African Commission, as is can human rights instruments and required having regard to its affiliate mechanisms, their work is not widely 50 status; though the first report is said to published and disseminated locally. be under preparation.53 Active partici- pation by the EHRC in the activities of The study was unable to conduct the African Commission is yet to be countrywide exhaustive searches in all enhanced. the law schools. It is however conclu- sively observed that the number of EHRC makes reference to the Afri- can Charter in its research, law reviews, training, public education and advocacy 49 Some examples include, AJ Ali ‘The admis- sibility of sub-regional courts’ decisions activities in the same manner as it does before the African Commission or African to other relevant African and interna- Court’ (2012) 4 Mizan Law Review 241; EH Mengesha ‘Reconciling the need for advanc- tional instruments. Remarkably, the ing women's rights in Africa and the dictates EHRC has made the African Charter of international trade norms: The position of the Protocol on the Rights of Women in available in the local language (Amhar- Africa – Focus on the Protocol to the African ic) and this version has been published Charter on Human and Peoples' Rights on the Rights of Women in Africa’ (2006) 6 Afri- and disseminated to relevant human can Human Rights Law Journal 208 168-187; rights actors, and exists as an online FH Berhane ‘Why Ethiopia should ratify the Maputo Protocol’ (2010) 507 Pamazuka resource available on the EHRC News http://pambazuka.org/en/category/ features/69059 (accessed 10 November 2015). 51 See Proclamation 210/2000. EHRC only 50 For example, TS Bulto extensively published became operational in 2005. on the African human rights system in 52 http://www.achpr.org/sessions/40th/ international journals (see his publications (accessed 20 August 2015). available at http://www.researchgate.net/ 53 Interview with Mr Mitiku Mekonnen, Direc- profile/Takele_Bulto/publications (accessed tor, Human Rights Protection and Monitor- 5 February 2016)). ing Directorate, EHRC (11 November 2015). Impact of the African Charter and the Maputo Protocol in selected African states 69 website. Wider dissemination to the tions of which are translated, published public, and translation into and publica- and disseminated by EHRC.54 tion in other local languages is yet to be done. With regards to the Maputo 10 State reporting Protocol, the EHRC is working closely with MoFA on lobbying for ratification. Ethiopia submitted two state reports to The rights of women being one of the African Commission in respect of EHRC’s main programmes under the the African Charter. The first was a Commissioner of Women’s Rights, combined initial and 1st-4th periodic EHRC has provided technical assistance report and was submitted in 2008 while in preparing the relevant proposal to the second was a combined 5th and 6th cabinet for purposes of initiating ratifica- periodic report, submitted in 2014. In tion of the Protocol. the light of article 62 of the African Charter, requiring states to submit Working closely with MoFA, reports every two years, Ethiopia’s EHRC also plays an active role in the reporting record falls short of meeting preparation of periodic reports under the timeframes for each report. The human rights treaties to which Ethiopia reason for such delay, as indicated by is a party. Accordingly, the EHRC is the government, was inadequacy of greatly involved in the preparation of resources55 perhaps compounded by reports submitted to the African multiple reporting duties. However, Commission and provides technical having made remarkable effort in clear- support and coordination assistance in ing its reporting backlog, Ethiopia is the form of facilitating consultation with currently one of very few member states CSOs and other stakeholders. The who have no outstanding reports under EHRC, in fact, served in the National the African Charter.56 Drafting Committee that was tasked to draft the 5th and 6th periodic reports The legal department of MoFA is submitted to the African Commission responsible for preparation of state by the government of Ethiopia. reports under the African Charter and other international instruments. As the Admittedly, there is not much done African Charter covers a range of by the EHRC in so far as promoting the human rights that fall under the African Charter is concerned, and mandate of different institutions, MoFA following up on implementation of the works closely with other government concluding observations, resolutions ministries to gather relevant information and decision of the African Commission and coordinate the drafting process. is equally not a main activity of the EHRC. There is, in fact, no dialogue The preparation of the combined concerning implementation of the initial and 1st-4th reports was less recommendations of the African participatory although broad participa- Commission on the communication involving Ethiopia discussed below. It is 54 EHRC ‘Recommendations from 2nd UPR of noted, moreover, that there is greater Ethiopia’ (Amharic) (2015). 55 See ‘Ethiopia State Report ‘(2008) http:// focus on the Universal Periodic Review www.achpr.org/files/sessions/46th/state-re (UPR) process, the concluding observa- ports/1st-to-4th-1998-2007/staterep1to4_eth iopia_2008_eng.pdf (accessed 8 August 2015) 7. 56 http://www.achpr.org/states/ (accessed 20 November 2015). 70 Ethiopia tion was noted in the case of the later, 11 Communications involving the combined 5th and 6th report. Prepara- state tion of the combined 5th and 6th period- ic reports was led by a National There have been some communications Committee composed of the EHRC and submitted to the African Commission 57 six relevant ministries, and coordinat- involving Ethiopia. One of the commu- ed by the MoFA. The drafting process is nications involving Ethiopia was said to have involved extensive stake- Communication 301/05 Haregewoin holder consultations to gather informa- Gabre-Selassie and IHRDA (on behalf of tion on implementation of the African former Dergue Officials) v Ethiopia.60 The Charter. Consultative workshops were complainants alleged violation of fair also organised at different stages of the trial rights, amongst others, under the drafting process and provided an oppor- African Charter. The African Commis- tunity to a wide range of stakeholders ‒ sion found the government of Ethiopia from government, civil societies, inter- to be in violation of the said rights and national partners, the private sector and consequently ordered Ethiopia to pay the media ‒ to discuss the drafts and adequate compensation to the victims. provide comments and inputs that were Despite the importance of the communi- 58 taken into consideration. cation in providing a remedy to the victims involved, no publicity has been The concluding observations issued given to the communication or decision by the African Commission and other at the domestic level. The concerned treaty bodies are distributed to relevant NGO and the lawyers involved in the government ministries and depart- communication have not used it for ments. Apart from inter-ministerial domestic level promotion of the dissemination, there is no evidence of outcome as well as the work of the Afri- dissemination of the concluding can Commission. So far, no known observations to the public or any steps have been taken by the Ethiopian translation of the same into local government towards implementing the languages. Similarly, specific steps recommendations of the African taken towards implementing the recom- Commission in respect of the communi- mendations in the concluding observa- cation and the government is yet to tions of the African Commission cannot report to the African Commission on be traced. In this regard, MoFA is said implementation. to be planning to institute a structured follow-up mechanism for recommenda- The above case is the only commu- tions of international human rights nication involving Ethiopia that has bodies including those of the African been decided on its merits as at the time 59 Commission. of this study. As for the rest, they were all dismissed or suspended at the admis- sibility stage of the communications 57 The six member ministries were the MoFA, 61 Ministry of Justice, Ministry of Federal process. The study notes that a hand- Affairs, MoWCYA, Ministry of Finance and Economic Development, Ministry of Communication Affairs. See Ethiopia State Report (2014) http://www.achpr.org/ states 60 http://www.achpr.org/communications/de /ethiopia/reports/5-2009-2013/ (accessed cision/301.05/20 (accessed 12 August 2015). 22 August 2015) 12. 61 See details of the communications at African 58 Interviews with MoFA officers (n 14 above). Human Rights Case Law Analyser: http:// See Ethiopia State Report (n 57 above). caselaw.ihrda.org/country/ethiopia/ 59 Interviews with MoFA officers (n 14 above). (accessed 5 February 2015). Impact of the African Charter and the Maputo Protocol in selected African states 71 ful of communications involving Ethio- above problems. In addition, govern- pia are pending before the African ment was urged to consider the release Commission, the details of which are of persons above the age of 70, those not yet public due to the confidentiality who are seriously sick, expectant and clause under the Rules of Procedure of nursing mothers, and political prisoners; the African Commission. to provide special dietary meals for chil- dren, the sick, and nursing and expect- 12 Special mechanisms and ant mothers; to facilitate the regular promotional visits by the inspection of prisons and detention African Commission centres by government authorities, the EHRC and NGOs; and to ensure proper investigation of complaints of abuse, The only visit by a special mechanism of amongst others. the African Commission to Ethiopia was held by the Special Rapporteur on Government has made attempts to Prisons and Conditions of Detention in address some of these recommenda- Africa, in 2005. The mission was led by tions. Measures to address prison the then Special Rapporteur, Commis- crowding, separation of juveniles from sioner Dr Vera Chirwa, who visited adults, separation of convicts and several prisons in the country and held suspects, and the provision of legal aid discussion with government authorities, are progressively being enforced.63 A prisoners, prison and detention center National Prison Administrations Strate- officials, and NGOs.62 gic Plan is also being implemented in order to standardise the treatment of The mission identified several posi- and provision of services to prisoners at tive aspects in relation to the treatment federal and regional levels. In 2007, the and conditions of prisons and detention Council of Ministers has issued Regula- centres, such as the proper separation of tions64 female sections from male sections that to ensure respect for the human are also guarded by female wardens; rights of prisoners and take measures in and separate facilities for nursing and cases of violations. The EHRC also expectant mothers. It also, however, conducted monitoring visits to police detention centres that documented identified problems of overcrowding, 65 lack of separation of children from progress, gaps and recommendations. adults, and suspects from convicted persons; lack of provisions of basic 13 Factors that may impede or services and utilities; inadequate educa- enhance the impact of the tional, medical and recreational facilities African Charter, the Maputo in prisons; poor sanitation in police Protocol and the African detention centres; inadequate funding Commission allocation to prisons; and unduly prolonged detention at the pre-trial and The availability of the African Charter trial stages of the criminal justice in Amharic, which by virtue of being the system, amongst others. The recommen- working language of the Federal govern- dations of the Special Rapporteur included urging the government of Ethi- 63 See Ethiopia State Report (n 57 above). opia to take necessary steps to tackle the 64 The Federal Prison Wardens Administration Regulation 137/2007 & the Treatment of Federal Prisoners Regulation 138/2008. 62 See African Commission Report (n 5 above). 65 See EHRC Report (n 5 above). 72 Ethiopia ment and four other regional states is human rights system. In particular, widely used throughout the country, is a incorporation in the EHRC’s Strategic positive factor. The translation of the Plan of advocacy work around ratifica- Charter in as many local languages as tion of the Maputo Protocol is an possible would go a long way in important factor that can support the promoting it. ratification and visibility of the Proto- col. The EHRC should incorporate The existence of a justiciable Bill of targeted projects to promote the African Rights and enabling subsidiary laws is Charter, the Maputo Protocol and the instrumental in promoting and giving work of the African Commission. effect to the African Charter. In particu- lar, the interpretation clause of the Available institutional frameworks Constitution can play an immense role such as the Justice Professionals Train- in catalysing application of the African ing Centre and the Justice and Legal Charter into the domestic legal practice Systems Reform Institute could be involving human rights issues. Howev- powerful tools for incorporating the er, it requires an active judiciary and African Charter and the jurisprudence lawyers who keenly initiate interpreta- of the African Commission in trainings tions in the light of the provisions of the and legal research. African Charter. The emerging practice of reference to international instruments Wider participation of government by the Federal Supreme Court can also as well as non-government stakeholders slowly erode the stalemate in the Ethi- in the reporting process and the impor- opian judicial tradition towards refer- tant attention given by government ence to international legal instruments. bodies to reporting and concluding Such practice should be extended to the observations of the African Commission provisions of the African Charter and is a positive asset to intensify the impact also be mainstreamed to lower and of the African Charter and its protocols. regional courts. Publication and wider dissemination of periodic reports and concluding obser- The existence of NGOs with observ- vations can be instrumental in raising er status with the African Commission the awareness of grassroots actors and could also be a powerful resource if the general public, and should be priori- exploited effectively. It could be used to tised. promote the African Charter and the work of the African Commission; to The formal and harmonised lobby for ratification of the Maputo incorporation of the African human Protocol; and proactively to engage with rights system into law school curricu- the Commission through available chan- la at national level, coupled with the nels. growing number of university lectur- ers trained on the African human EHRC’s comprehensive statutory rights system, is already enhancing mandates and its affiliate status with awareness and knowledge of regional the African Commission could be human rights law among the new useful in increasing the visibility of the generation of legal professionals. African Charter, the Maputo Proto- Moreover, the increasing number of col and the work of the African Ethiopians attending human rights Commission within the domestic courses at a postgraduate level is prov- Impact of the African Charter and the Maputo Protocol in selected African states 73 ing an asset for promoting and incor- ter in domestic litigation, it still porating the African Charter in their creates practical problems. Thus, respective fields of domestic human official texts of treaties should be made available to courts in relevant, various rights work. languages. Dr Solomon Ayele Dersso is the (c) As for the Maputo Protocol, its sta- tus as a non-ratified instrument highly first Ethiopian to join the African precludes any attention given to it at Commission as a Commissioner. all levels. The MoFA, MoWCYA, However, as he has just been appointed, EHRC and concerned NGOs should in June 2015, it is premature to assess persist in their lobbying efforts to effect what role this factor has played in ratification that is pending before par- liament. enhancing the influence of the African Charter and the African Commission in (d) The dearth of dynamic local or interna- tional human rights NGOs operating Ethiopia. It is hoped that it will have a in Ethiopia that engage with the Afri- positive influence in increasing the visi- can Commission, aggravated by the bility of the African Charter and the restrictions imposed by the CSOs Law, work of the Commission in Ethiopia. is a major factor that limits the promo- tion of the African Charter in domestic The presence of the African Union human rights practice. Headquarters should serve as a bridge (e) Laws that curtail freedom of associa- between the African Commission and tion and expression which in effect sup- press NGO’s work and the freedom of the people of Ethiopia. The African academics, lawyers and journalists Commission as well as interest groups have negative bearings on the use and working with it can use the African impact of the African Charter in Ethio- Union Commission channels for the pia. promotion of human rights. (f) The lack of media attention to the work of the African Commission con- The main factors that the study tributes to the lack of public aware- identified as impeding the influence of ness. Review of major media coverage revealed that the interest of the mass the African Charter, the Maputo Proto- media on African issues focuses on col and the African Commission in political and economic topics. Stake- Ethiopia are summarised as follows: holders should enhance the role of the media in promoting the African Char- (a) The lack of widespread awareness of ter and the work of the African Com- the African Charter and the work of mission. the African Commission amongst key (g) The fact that no sessions or promo- stakeholders such as judges, lawyers, tional visits of the African Commission academics, human rights advocates have been held in Ethiopia since ratifi- and government institutions constitutes cation of the African Charter has also a major factor that diminishes the use contributed to the disconnect between and influence of the African Charter. the Commission and local human Training and awareness raising forums rights actors.66 Holding sessions and are highly desired. visits in Ethiopia could facilitate (b) The lack of publication of the Afri- greater awareness and promote greater can Charter in government law interaction with the African Commis- gazette in the official working lan- sion if complemented by effective pro- guages of courts is a key practical motional strategies. factor impeding its use by judges and litigating lawyers. Though pub- 66 Prior to ratification, the 1st Ordinary Session lication can no longer be used as a of November 1987 and the 14th Ordinary ground to exclude use of the Char- Session of December 1993 have taken place in Ethiopia. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN THE GAMBIA
Satang Nabaneh*
1Introduction population is estimated at 1.8 million.5 The preliminary results indicate that The Gambia remains one of poorest women make up 50,5 per cent of the countries in the world. The 2014 UNDP population with males constituting 49,5 6 Human Development Report ranks the per cent. country 172 out of 187 countries.1 The Gambia ranks at 139 on the Gender The promulgation of the 1997 Inequalities Index (GII).2 According to Constitution of the Republic of The the Mo Ibrahim Index of African Gambia heralded a new dispensation for Governance, The Gambia ranks 23 out the recognition and upholding of the of 52 African states. Under the gender dignity of the individual. The Preamble index score, the country ranks at 19th recognises the following: position with a 58.3 score out of 100.3 The fundamental rights and freedoms enshrined in this Constitution will ensure The Gambia is a common law for all time respect for and observance of 4 country, and is one of the smallest human rights and fundamental freedoms countries in mainland Africa. According for all, without distinction as to ethnic to The Gambia’s 2013 population and considerations, gender, language and housing census preliminary results, the religion. Section 17(1) of the Constitution provides that the ‘fundamental human rights and freedoms’ enshrined in the Constitution ‘shall be respected and upheld by all [government organs including] the Legislature’. The Consti- * LLM HRDA (Pretoria) & lecturer, Faculty of Law, University of The Gambia. Email: tution contains a comprehensive cata- [email protected]. logue of rights and freedoms under 1 See UNDP Human Development Report Chapter IV. Section 37 of the Constitu- ‘Sustaining human progress: Reducing vulnerabilities and building resilience’ (2014). 2 UNDP Human Development Report (n 1 5 The Gambia Bureau of Statistics (GBOS) above) 158. ‘The Gambia 2013 Population and Housing 3 Mo Ibrahim Index of African Governance Census Preliminary Results’ (2014) 6 http:// (IIAG) 2014. dhsprogram.com/pubs/pdf/FR289.pdf 4 The Country attained her independence (accessed 20 August 2015). from Britain on 18 February 1964. 6 GBOS (n 5 above) 8.
75 76 The Gambia tion provides that any person who alleg- 2 Ratification of the African es that any of the provisions of Chapter Charter and Maputo Protocol IV have been, are being, or are likely to be contravened in relation to himself or The Gambian Constitution vests in the herself by any person; he or she may President the power to negotiate and apply to the High Court for redress. conclude treaties and other international agreements. The President may exercise Section 28 of the Constitution the power personally or through his ensures that women are accorded full Secretaries of State. Ratification of such and equal dignity of the person with treaties and international agreements is men; and have the right to equal treat- the prerogative of the National Assem- ment with men, including equal oppor- bly of The Gambia.8 With regards to the tunities in political, economic and social procedure for transmitting treaties, the activities. Despite their numerical Ministry of Justice receives the resolu- strength, women’s rights and gender tion of ratification from the National equality issues continue to be systemati- Assembly and prepares the instrument cally marginalised even after all the rati- of ratification for signature of the Presi- fication and harmonisation of dent. After signature, the instrument is international human rights instruments deposited through the Ministry of and documents. Foreign Affairs.9 Women’s representation in elective The Gambia is a state party to many positions is significantly low. In the international human rights instruments. National Assembly, only three out of It ratified the African Charter and the the 48 elected members are women with Maputo Protocol on 8 June 1983 and the addition of one nominated member 25 May 2005, respectively. There is no being the current deputy speaker, available information on the reasons for making a total of four out of 53 ratifying the two instruments. However, members. Thus, the percentage of elect- it can be deduced that it might have ed women members of parliament is 6,2 been as a result of the involvement of Sir percent while the total percentage of Dawda Jawara, The Gambia’s first women in parliament is 7,5 per cent. At President, in the process leading to the the local level, as of April 2013, there adoption of the final draft version of the were only 18 women councillors out of African Charter which was concluded in 137 councillors and only ten elected Banjul, the Capital of the Gambia. from a total of 109 elected councillors around the country, which is less than However, it is important to note one per cent. These figures are far below that The Gambia made a blanket reser- The Gambia’s commitment to attaining vation on articles 5 (elimination of 7 gender equality. harmful practices), 6 (marriage), 7 (sepa- ration, divorce and annulment of marriage) and 14 (health and reproduc- tive rights) of the Maputo Protocol. In 2006, due to intense advocacy and The
8Sec 79(1)(c). 9 Email from Cherno Marenah, Solicitor 7 See S Nabaneh ‘Open letter on women’s General and Legal Secretary on 30 October political participation’ (April 2013). 2015. Impact of the African Charter and the Maputo Protocol in selected African states 77
Gambia hosting the African Union (AU ed in 1996. It is responsible for policy Summit), the reservation was formulation, coordination, resource removed.10 In its failure to provide an mobilisation, monitoring and evaluation explanation around the reservation, The at the highest level, addressing the needs Gambia has shown that it made the and aspirations of women and girls reservation without any tangible justifi- within the confines of Constitution and cation. national policies.12
3 Government focal point The Women’s Act, 2010 under sections 57 and 70 provide for the estab- lishment of the National Women’s The Ministry of Justice is the focal point Council and the National Women’s for all human rights issues under the Bureau as the main government gender leadership of the Attorney General and machinery for implementation of the Minister of Justice including the imple- Maputo Protocol and other government mentation of the African Charter.11 The laws and policies for the advancement Attorney General and Minister of of women. The Council and Bureau Justice are usually present and deliver a also work closely with the Gender Focal statement during the opening of sessions Points (GFPs) of the various ministries of the African Commission that are held as gender mainstreaming is seen as a in The Gambia. The ministry is also crosscutting issue. The GFPs support responsible for fulfilling state reporting their respective ministries to assess their obligations such as reports for the specific needs in the field of gender Universal Periodic Reviews. They do responsive planning, programming, this through the establishment of task implementation, monitoring and evalua- forces comprising different government tion and make appropriate recommen- ministries and agencies. A final report is dations for capacity building. The usually presented at a validation work- Council and Bureau, with the support of shop before government officials, para- and in collaboration with related institu- statals and various representatives of tional structures and civil society organi- civil society organisations. In addition, sations (CSOs) strive to create an they are also part of the delegation that enabling environment for the full reali- presents these reports to the relevant sation of women’s rights. human rights bodies. The ministry is one of the most critical of all state agen- cies with the mandate to ensure and 4 Domestication safeguard fundamental freedoms and rights including popularising human The Gambian legal system is based on rights laws amongst law enforcers and English common law. It thus follows the other professionals. However, it is also dualistic approach. This is based upon beset with institutional, financial and the perception of two quite distinct human resource capacity constraints. systems of law, operating separately and also maintains that, before any rule or The Ministry of Women’s Affairs, principle of international law can have headed by the Vice President, was creat- any effect within the domestic jurisdic- tion, it must be expressly and specifical-
10 F Viljoen International human rights law in Africa (2012) 256. 12 Woman includes a ‘girl-child’ according to 11 Email from Cherno Marenah (n 9 above). sec 2 of the Women’s Act 12 of 2010. 78 The Gambia ly 'transformed into municipal law by organizations of which The Gambia is a the use of the appropriate constitutional signatory. machinery, such as an Act of Parlia- As directive principles of state policy, ment.’13 these provisions do not confer legal There is a strong presumption in rights and are not enforceable, but, all common law systems that statutes and organs of government should be ‘guided the common law will be read so as to be by and observe them.’ compatible with international law, The first step to using the African except where the provisions of a statute Charter and the Maputo Protocol as or common law clearly preclude such an tools for the enforcement of human interpretation. This principle was specif- rights in The Gambia is to have provi- ically recognised in Gambian law by sions of these instruments fully incorpo- Moshood Adio J, on behalf of the pre- rated into national law, thereby creating 1994 Supreme Court (now the High legally enforceable obligations to which Court), in the case of Abdulrasheed the government can be held accounta- Mohamed v The State.14 This approach is ble.17 Although no specific Act of also in keeping with the principle of the Parliament has directly domesticated Gambian constitutional interpretation the African Charter, provisions of the set out by the Privy Council in the case African Charter have been incorporated of Attorney General v Jobe (No 2)15 that into The Gambian legal systems. the Constitution, ‘in particular that part of it which protects and entrenches fundamen- The Constitution is the supreme law tal rights and freedoms to which persons in of the land and any other law found to the State are to be entitled, is to be given a 16 be in conflict with it is void to the extent generous and purposive construction’. of the inconsistency.18 In addition to the Constitution, laws applicable in The Section 216(3) of the Constitution Gambia include: Acts of the National obligates the state to be guided by inter- Assembly, the common law and princi- national human rights instruments in ples of equity, customary law, Shari’a making policies for the protection of law and any orders, rules, regulations fundamental rights and freedoms. and subsidiary legislation made by a Section 211(b) further empowers the person or authority conferred by the courts to have regard to these state poli- Constitution.19 The different bodies of cies in interpreting any laws based on laws especially customary and Shari’a them. Section 219(c) and (d) of the law create contradictions and inconsist- Constitution also provide that: encies in terms of personal law. The The State shall endeavour to ensure that in Gambian customary law is unwritten international relations, it … fosters respect and consists of orally transmitted for international law, treaty obligations … rules.20 There are many discriminatory and … is guided by the principles and provisions in all these sources of law, goals of international and regional
17 J Sallah & S Jahateh Desk review of the national 13 MN Shaw International law (1997) 100. laws, international conventions, treaties and best 14 Unreported decision of the then Supreme practices, relating to Gender Based Violence Court, 1993 as cited in OAS Jammeh The (GBV) 2011. Constitutionnel Law of the Gambia, 1965-2010 18 Sec 4. (2011). 19 Sec 7. 15 [1960-1963] GLR 226. 20 EA Agim The Gambia legal system revised 16 Jobe (No 2) (n 15 above) 241. edition (2010) 13. Impact of the African Charter and the Maputo Protocol in selected African states 79 particularly in the areas of family and announced a ‘conditional’ moratorium property law. The application of both on executions, which would be ‘auto- customary law and Shari’a law is not matically lifted’ if crime rates increased. absolute. The UN Special Rapporteur on extraju- dicial executions stated in his 2015 The rights and freedoms provided in report that ‘the only difference between the Constitution include the right to life those who lived and those who died, and personal liberty, freedom from slav- seems to be pure luck. The killings were, ery and forced labour, torture and inhu- in other words, arbitrary and thus man treatment, the rights to privacy, unlawful’.23 property and fair trial, freedom of speech, conscience, assembly, associa- The African Commission, in tion and movement, the right to political response to the executions, noted that: participation, right to marry, rights to education and culture as well as free- [the killings were in] total disregard of the dom from discrimination.21 obligations of The Gambia under the African Charter on Human and Peoples’ Rights, other regional and international Several of these rights are limited. human rights instruments to which The An assessment of several of these rights Gambia is a party, as well as, the has been seen to be violated and people Constitutive Act of the African Union in have been subjected to punitive and which the ‘respect for the sanctity of arbitrary regulations without due human life’ is a principle that should be followed by each Member State.24 process. The Gambia has also witnessed major For example, nine death row shrinking of the political space over the inmates, eight men and one woman, years. First, the Elections (Amendment) were removed from their prison cells Act,25 2015 was passed on 7 July 2015 and executed on 27 August 2012. and assented to by the President on According to the news report, 20 July 2015. Section 43 of the Act increases the required deposits that all persons on death row have been tried by the Gambian courts of competent candidates for election must make; jurisdiction and thereof convicted and candidates for President must pay sentenced to death in accordance with the 500 000 dalasis (approximately law. They have exhausted all their legal 22 US$12 500) up from 10 000 dalasis rights of appeal as provided by the law. (approximately US$250) previously The government’s justification for the required; candidates for the National execution was that The Gambia was Assembly must deposit 50 000 dalasis witnessing a high crime rate and becom- (approximately $1000) which previously ing a safe haven for criminals. The was 5000 dalasis (approximately executions were the first in The Gambia since 1985 although the military junta 23 UN Human Rights Council ‘Report of the reinstated the death penalty in 1995. In Special Rapporteur on extrajudicial, summary or arbitrary executions: Mission to September 2012, President Jammeh The Gambia’ A/HRC/29/37/Add.2 (11 May 2015) para 25. 24 See ACHPR ‘Press Statement on the 21 Secs 17-33 of the Constitution. Execution of Nine (9) Death Row Inmates in 22 This was officially announced on Gambia The Gambia’ http://www.achpr.org/press/ Radio and Television Services (GRTS) News 2012/08/d127/ (accessed 30 November https://www.youtube.com/watch?v=lHxZ 2015). Z6eKj8o (accessed 10 October 2015). 25 Act 6 of 2015. 80 The Gambia
US$125) and candidates for local coun- For example, section 15 of the cil offices must pay about 10 000 dalasis Women’s Act deals with temporary (which is about $200). Opposition politi- special measures to be adopted by every cal parties do not only regard the organ, body, public institution, authori- increases as unreasonably high but also ty or private enterprise aimed at acceler- as a ploy by the government to drastical- ating de facto equality between men and ly limit the participation of the opposi- women. This section of the Women’s tion in elections. Act failed to introduce quotas in meet- ing the 30 percent target for women’s The Constitution contains several political participation and representa- sections that guarantee women’s rights tion in the National Assembly and although the framework thereunder is public positions respectively.27 This not as strong as it could be. For becomes more relevant in the political instance, the Constitution under arena and decision-making at all levels, sections 17(2) and 33 provide that every where women are not legally barred person is entitled to the enjoyment of from participating effectively on an rights without discrimination and equal- equal footing with men, but may not be ity before the law, but allows exceptions able to do so due to cultural bias in in terms of personal law. The CEDAW favour of men and stereotypical percep- Committee recommended the: tions of the role of women.28
amendment of section 33(5) of the 1997 The Maputo Protocol is the first of Constitution, which explicitly exempts its kind to include a number of protec- from prohibition of discrimination on grounds of gender areas governing tions specific to women, including personal status, particularly with regard to reproductive choice and autonomy. This adoption, marriage, divorce, burial and is best articulated in article 14 of the 26 devolution of property on death. Maputo Protocol, which provides for women’s health and reproductive rights. The Constitution also does not protect In line with this obligation, section 30 of the rights to health, work, food, shelter, the Women’s Act protects women development and satisfactory environ- against discrimination in reproductive ment. health rights and services and provides In its efforts to domesticate both for the right to medical abortion where CEDAW and the Maputo Protocol, The the pregnancy endangers the life of the Gambia promulgated the Women’s Act mother or the foetus. This is limited in 2010 which was signed into law by the scope contrary to article 14(2)(c) of the President on 28 May 2010. Generally, Maputo Protocol which provides for the Act is a very innovative piece of medical abortion in cases of assault, legislation which contains provisions on rape and incest. promoting and protecting the rights of On 24 November 2015, President women in The Gambia. However, some Jammeh declared a ban on female geni- of its provisions are incompatible or not tal mutilation (FGM) stating that it was consistent with the provisions of the a cultural and not a religious practice. Maputo Protocol.
27 AU Solemn Declaration. 28 See S Nabaneh Women’s political participation 26 CEDAW 33rd Session 22 July 2005 and representation in The Gambia: One step CEDAW/C/GMB/CO/1-3. forward or two back?(2013). Impact of the African Charter and the Maputo Protocol in selected African states 81
This was swiftly followed by the passing try as well as girls forced to undergo the of the Women’s (Amendment) Bill 2015 procedure in countries with weaker by the National Assembly on 2 Decem- FGM laws. Nevertheless, the Act ber 2015 to prohibit female circumci- constitutes a major step forward in sion. The amendment addresses one of terms of promoting and protecting the the key deficiencies of the Women’s Act rights of women to bodily integrity and 2010 which was the absence of content dignity. intended to reflect the protections enshrined under article 5 of the Maputo 5 Legislative reform Protocol, dealing with the ‘elimination of harmful practices’. The Amendment No information could be obtained on Act added sections 32A and 32B to the whether a compatibility study was Women’s Act. With the enactment, The conducted before the African Charter Gambia joined a number of African and the Maputo Protocol were ratified. countries in adopting legislation as a However, several legislative reforms reform strategy for ending FGM. have been made through the enactment of laws that implicitly or explicitly give Section 32A makes it an offence for effect to the African Charter and Mapu- any person to engage in female circum- to Protocol. These include the Women’s cision and stipulates that whoever Act of 2010, Domestic Violence Act of contravenes the prohibition is liable on 2013 and the Sexual Offences Act of conviction to imprisonment for a term 2013. Although the Legal Aid Act of of three years or a fine of 50 000 Dalasis 2008 does not expressly stipulate which (approximately $1250) or both. The Act treaty it incorporates, it was revealed also stipulates a life sentence in prison if during interviews that the Institute for the circumcision results in death. Human Rights and Development in The Act also addresses those who Africa (IHRDA), an international NGO commission the procedure in section based in The Gambia, fostered the 32B(1). The section states that enactment of the law in furtherance of the African Charter.29 a person who requests, incites or promotes female circumcision by providing tools or The long title of the Women’s Act by any other means commits an offence states that it was enacted to incorporate and is liable on conviction to imprison- and give effect to the provisions of ment for a term of three years or a fine of CEDAW and the Maputo Protocol in fifty thousand Dalasis or both. The Gambia.30 The Act however does In addition, a fine of 10 000 Dalasis not limit or restrict the incorporation (approximately $250) as provided in and enforcement of any provisions of section 32B(2) of the Act is levied these two instruments. These two trea- against anyone knowing about the prac- ties will thus serve as an aid in the inter- tice and failing to report it. pretation of the Act where there is a gap or where a particular provision is not However, there is a major lacuna in the Act, in so far as it makes no provi- 29 Interview with Edmund Foley and Humphrey Sipalla, respectively legal officer sion for cross-border circumcision and communication officer of the Institute addressing both circumcisers who for Human rights and Development in Africa, 25 August 2011 conducted by Tem perform the procedure outside the coun- Fuh. 30 See Long Title, Women’s Act of 2010. 82 The Gambia provided for, in which instance recourse who do not act swiftly and effectively may be had on the original texts of these while respecting the human rights of the two instruments. women affected within a required time frame. The former UN Special Rappor- The Domestic Violence Act was teur on Violence against Women stated passed by the National Assembly on that: ‘in the context of norms recently 17 December 2013 and assented to by established by the international commu- the President on 30 December 2013. nity, a state that does not act against The Act is aimed at combating domestic crimes of violence against women is as violence and thus provides protection guilty as the perpetrators.’31 for the victims of domestic violence, particularly women and children and for 3232 other related matters. The Act contains 6 Policy reform a number of progressive and rights- enhancing provisions. Domestic Several policies have been formulated violence under section 3 is given a broad relating to the attainment of rights and definition to include physical abuse as freedoms in certain thematic areas such well as sexual and economic abuse, as education, agriculture, trade and emotional, verbal and psychological employment, information and commu- abuse. Importantly, under section 4, the nication, population, reproductive Act covers not just marriage but a whole health and youth. These include the range of intimate living conditions National Gender and Empowerment collectively termed as ‘domestic rela- Policy (2010-2020), Programme of tionships’. Section 6 stipulates that the Accelerated Growth and Employment consent of the victim is not a defence to (2012-2015), The Gambia National a charge of domestic violence. Even Action Plan on UNSCR 1325, the though the government has complied National Health Policy (2011-2015), with the provisions of the Domestic National Strategic Plan for HIV and Violence Act in Part II section 3 by AIDS (2015-2020), and the National establishing the Victims of Violence Education Policy (2004-2015), amongst Advisory Committee, it has failed to others. comply with sections 4, 5, 6 and 7 of the There is no evidence to suggest that same Act to ensure effective functioning government policies reflect the provi- of the committee. sions of the African Charter. However, The Sexual Offences Act addresses there are policies that explicitly mention the most common sexual offenses, and CEDAW and the Maputo Protocol such provides for punitive measures. This Act as the National Gender and Empower- provides protection against sexual ment Policy framework. crimes against all persons especially vulnerable groups, including women, children and people who are mentally 31 UN Human Rights Council ‘Report of the Special Rapporteur on violence against and physically disabled. The Act is women, its causes and consequences on applicable to the crime of rape and other intersections between culture and violence against women’ UN Doc A/HRC/34 (2007). sexual offences. However, the law fails 32 For a more comprehensive analysis of to address marital rape. It further failed policies see S Nabaneh ‘Desk review of adequacy of laws, policies and vision 2020 to have a provision for the review of the for gender sensitivity’ (2014) commissioned law as well as penalties for authorities by Office of the Vice President & Ministry for Women’s Affairs. Impact of the African Charter and the Maputo Protocol in selected African states 83
7 Court judgments equitable distribution of matrimonial property.36 In The Gambia, there are no specialised courts that deal with violations of In the aforementioned case, the human rights. Different pieces of legisla- woman was married to her husband for tion have different courts exercising 26 years and had three children. At jurisdiction. some point during their marriage, the couple occupied the matrimonial prop- There have been several decided erty. At the time they moved into the cases in which the Gambian courts have property, it was incomplete. The invoked decisions of the African husband had lost his job and was unem- Commission as well as the obligations ployed. The woman personally expend- of The Gambia under the African Char- ed a considerable amount of money into ter examined. developing and completing the property, which was registered in her husband’s In Ousman Sabally v IGP & 2 Others, name. She was able to produce some Jallow JSC referred to the decision of receipts of the materials she bought and the African Commission in Constitution- other contributions she made towards al Rights Project, Civil Liberties Organiza- the construction, completion and main- tion and Media Rights Agenda v Nigeria, in tenance of the property. All contribu- interpreting the right to freedom of tions made towards the matrimonial expression.33 In Mariam Denton v the home were on the clear understanding Director General of the NIA and & 5 that it was a joint matrimonial property Others,34 Justice Monageng made refer- with the full consent of her husband. ence to the obligations of The Gambia She also took responsibility of the fami- under the African Charter. So also was ly while her husband was sick and out the case in Garrision v the Attorney Gener- of work. al.35 Besides these, no other known case exists where the two instruments under The lady approached the Female study or a decision of the African Lawyers Association of The Gambia Commission have been invoked. (FLAG) for assistance in 2010 when her husband summoned her to the Kanifing In relation to litigating women’s Cadi Court seeking a divorce. She was rights, the Women’s Act is the legisla- instructed by the Cadi to move out of the tion most often relied on and for the matrimonial bedroom until after the most part gives effect to the Maputo ‘Idda’.37 FLAG intervened on her behalf Protocol in The Gambia. In a landmark and she stayed in the matrimonial High Court case, the Court declared that bedroom as prescribed by Shari’a. In distribution of joint property be in equi- August 2011, she was locked out of the table shares accordance with section 43 property on the instruction of her of the Women’s Act, which is a replica husband, and the husband further filed of article 7 of the Maputo Protocol on an eviction suit in the Magistrate’s Court. FLAG represented her, sought
36 HC 427/11/MF/059/F1. 33 (2000) AHRLR 227 (ACHPR 1999). 37 This is a waiting period in which a woman 34 HC/24/06 MF/087/F1. must observe after the death of her spouse or 35 Initial report of The Gambia to the UN after a divorce during which she may not Committee on the rights of the child, 1992. marry another man. 84 The Gambia for a stay of proceedings after a suit was host of others, which all base their work filed on her behalf in the High Court on the Women’s Act and by extension, seeking a declaration that she was enti- the Maputo Protocol. The Think Young tled to an equitable share of the matri- Women, a young-women-led organisa- monial property in accordance with the tion, has for example, organised a Joint Women’s Act 2010. This was granted. Stakeholders Workshop on Sharing Best Practices in the implementation of the This case clearly illustrates that the Women's Act for security officials, the Women’s Act 2010 can be instrumental judiciary, ministries and university in ensuring that women enjoy their students. rights in cases of separation, divorce or annulment of marriage. However, it is In separate activities and sometimes important to note that there is no official collaboratively, TANGO,38 WANEP data to indicate how often the provi- and ACDHRS have all led initiatives sions of the Women’s Act 2010, the over the past few years to promote Sexual Offences Act, 2013 and the women’s active participation and Domestic Violence Act, 2013 have been increased representation in decision invoked before the courts. making structures, using the Women’s Act as well as the Maputo Protocol. 8 Awareness and use by civil These organisations supported women’s society organisations candidature in parliamentary and local council elections, as well as, advocated The African Charter and the Maputo for gender quota in politics. In 2013, Protocol are well known amongst TANGO convened a consultative meet- human rights NGOs that operate in The ing between women leaders from the Gambia. The two most prominent are major parties in the country to sensitise the African Centre for Democracy and them and garner their support for Human Rights Studies (ACDHRS) and gender quotas in representative institu- the Institute for Human Rights and tions such as the parliament and local Development in Africa (IHRDA), councils as well as within political which both have observer status with parties. Earlier ACDHRS had conduct- the African Commission. The work of ed a review of manifestos of political these two organisations is based princi- parties to assess their gender sensitive- pally on the instruments under study. ness. There are numerous women's associa- The domestication of CEDAW and tions and organisations such as the the Maputo Protocol in the Women’s Gambian Committee on Traditional Act of 2010 was largely as a result of Practices (GAMCOTRAP), the Foun- lobbying and advocacy undertaken by dation for Research on Women’s these organisations, notably the Health, Productivity and the Environ- ACDHRS. On its part, the Legal Aid ment (BAFROW), the Female Lawyers Act of 2008 was the result of sustained Association Gambia (FLAG), the Asso- efforts of the Institute for Human Rights ciation for Promotion of Girl’s and and Development in Africa. Women’s Advancement in The Gambia, the Forum for African Women Educationalist (The Gambia) FAWE- GAM, the Gender Action Team and a 38 The Association of Non-Governmental Organisations in The Gambia (TANGO). Impact of the African Charter and the Maputo Protocol in selected African states 85
Furthermore only The Association enforced. Additionally and more impor- of Non-Governmental Organisations in tantly, they are also afraid of reprisals.39 The Gambia (TANGO) and The Gambia Press Union (GPU) have 9 Awareness and use by lawyers observer status before the African Commission but have not yet submitted Although The Gambia hosts the secre- any shadow reports to the Commission. tariat of the African Commission and The NGOs have not used any resolu- other international organisations, a tions or general comments adopted by major barrier in litigating women’s the African Commission in their work rights in The Gambia is the lack of in The Gambia. knowledge of international human rights law by both judges and lawyers. However, CSOs are gradually This means that most lawyers are becoming more proactive in submitting unable to cite international human shadow reports. For instance, the Child rights law while judges and magistrates Protection Alliance (CPA) submitted are unable to draw conclusions through shadow reports for the UPR and the the application of relevant international CRC Committee on the situation of human rights law. Children’s rights in The Gambia respec- tively. During the recent CEDAW This has also led to an absence of Committee review of The Gambia’s judicial activism within the legal periodic report, TANGO with a group community. Generally, lawyers are of women rights organisations, submit- unable or unwilling to bring cases to ted a joint shadow report on the list of address on-going women's rights viola- issues and questions in relation to the tions in The Gambia. Strategic and combined fourth and fifth periodic impact litigation around women's rights, reports of The Gambia in July 2015. In if improved, could promote consistent addition, the Committee on Traditional advocacy for women’s rights and may Practices Affecting the Health of encourage the government to comply Women and Children (GAMCOTRAP) with national and international stand- submitted an additional shadow report ards, calling for the protection of these in the area of sexual and reproductive rights. health of women and girls focusing on FGM. 10 Incorporation in law school Except for FLAG, no other non- education governmental organisations (NGO's) are as heavily concerned with litigating Even though the Faculty of Law of the women’s rights cases. Most Gambian University of The Gambia (UTG) was activists do not use the local courts and only established in 2007, it has incorpo- will not seek or use international rated human rights law in the curricu- avenues for redress. Most NGOs lack lum. International human rights law is the adequate knowledge of international taught with a focus on the African human rights law. Many are not aware human rights system. These students of these procedures and how to file complaints, or think it is not worth the 39 Interview with Njundu Drammeh, National Coordinator, Child Protection Alliance trouble if recommendations cannot be (CPA), Madi Jobarteh, Programme Man- ager, TANGO and Haddy Dandeh Jabbie, Vice President, FLAG, 21 August 2015. 86 The Gambia have gone on to become lawyers and human rights institutions to develop magistrates. There is great hope that their skills and knowledge and encour- they will usher in a new dispensation in age them to become human rights terms of utilising international human defenders.41 rights law. Currently, members of staff with expertise in this area, and with The Committee was officially human rights degrees, lecture these launched in October 2011 by the Direc- courses. tor of the Centre for Human Rights, University of Pretoria, Professor Frans The Faculty has also, with the Viljoen who presented a lecture on the support of the Centre for Human Rights ‘African Charter at 30’ which was at the University of Pretoria, participat- graced by the then Vice Chancellor, ed in the annual African human rights Dean, lecturers and students of the moot court competition. Preliminary faculty. The Committee was able to rounds are organised in the university provide a pool of interns and volunteers with judges from the African Commis- for ACHDRS’ NGO forums. This sion, raising awareness about the consequently led to internships at the system. Three of the participants of secretariat and IHRDA. In partnership these moot competitions have been with IHRDA, they were able to organise awarded scholarships to pursue the a symposium on the IHRDA case LLM in Human Rights and Democrati- analyser to help students become aware sation in Africa (HRDA) at the Centre of its existence and how best to utilise it. in the University of Pretoria and have 40 come back to lecture at the Faculty. 11 National human rights institutions In 2011, upon the return of two participants from the 21st African There is no national human rights insti- Human Rights Moot Court competi- tution in The Gambia. The Ombuds- tion, they set up The Faculty of Law man does not have a human rights Student’s Human Rights Committee promotion or protection mandate as that sought to promote human rights such and is established as a general and build the knowledge of future public complaints body against injustice human rights lawyers by fostering closer arising out of administrative misman- relationships between the Faculty and agement, mal-administration or discrim- international, regional and national ination.42 There is also the National institutions working in the area of Council on Civic Education which has human rights. The Human Rights no explicit human rights mandate but Committee concept entails a Student does promote values contained in the Human Rights Volunteer Corps African Charter and the Maputo Proto- (SHRVC) that targets, recruits and col. These institutions have no liaison trains law students interested in human with the African Commission. rights. The volunteers are linked with In July 2015, the CEDAW Commit- 40 These students included Satang Nabaneh, tee in its concluding observations on the class of 2012 who represented UTG at the 2011 Moot and Musubakoto Sawo, class of 2013 who was at the 2012 Moot. Henrietta 41 The former chair and co-founder of the M. Ekefre also a participant of the 2012 Student Human Rights Council is the author Moot graduated from the LLM (HRDA) of this report. programme in 2015. 42 See art 163 of the Constitution. Impact of the African Charter and the Maputo Protocol in selected African states 87 combined fourth and fifth periodic ing the right to health in Mozambique: reports of The Gambia, urged the state: A critical analysis’ in E Durojaye Liti- gating the right to health in Africa: Challeng- to establish, within a clear time frame, an es and prospects (2015). independent national human rights institution, in accordance with the Paris Principles, with a mandate on women’s 13 State reporting issues, strong linkages with the women’s machinery and authority to consider and The Gambia’s record of fulfilling its issue opinions on complaints submitted by women alleging violations of their rights.43 state obligation of submitting reports is extremely poor. The Ministry of Justice 12 Academic writing is responsible for reporting to treaty bodies. The country submitted its initial, second and third reports to the Academic writing on the African Char- CEDAW Committee in 2005. It submit- ter and the Maputo Protocol is very ted its fourth and fifth combined period- sparse. However, Hassan B Jallow, a ic reports on CEDAW in 2010. Gambian academic and prosecutor of the International Criminal Tribunal for The Gambia submitted its initial Rwanda, has published a book that report on the African Charter in 1992. reviews the African Charter generally The first periodic report was submitted and the jurisprudence of the African 44 in 1994 and no more have been submit- Commission. ted since.46 Since its ratification of the Maputo Protocol, The Gambia has This researcher during her study for never submitted an initial report or any the Centre for Human Rights LLM periodic report. programme in 2012, was a member of the Women’s Human Rights Clinical It is important to note that the Group which drafted and submitted the government of The Gambia gives great- pioneer work of a General Comment on er priority to reporting under the UN Article 14(2)(d) and (e) of the Maputo than the African human rights system. Protocol on HIV to the African There is clear manifestation of this. For Commission which was adopted as the instance, the country submitted its first ever general comment by the combined initial, second and third peri- Commission. She, with her former odic reports to the CEDAW Committee colleagues in the group, authored ‘The in 2003 which was examined in 2005 African Women’s Rights Protocol and while the combined fourth and fifth HIV: Delineating the African Commis- periodic report which was due in 2010 sion’s General Comment on article 45 was submitted in 2012 and considered 14(1)(d) and (e) of the Protocol’. She in 2013. The government submitted its also has a chapter, ‘Challenges in litigat- initial report to the CRC committee in 1999. In 2011, it submitted its second 43 CEDAW Committee ‘Concluding observa- and third periodic report which issued tions on the combined fourth and fifth peri- concluding observations on 4 January odic reports of The Gambia’ (July 2015) CEDAW/C/GMB/4-5 para 15. 2015. 44 See HB Jallow The law of the African (Banjul) Charter on Human and People's Rights (2007). 45 (2014) 14 African Human Rights Law Journal 681 http://www.ahrlj.up.ac.za/images/ahrlj /2014/ahrlj_vol14_no2_2014_chapter17.pdf 46 www.achpr.org/states/gambia (accessed (accessed 24 August 2015). 24 August 2015). 88 The Gambia
In October 2014, the Human Rights Act and replace it with a new legislative Council (HRC) reviewed The Gambia’s regime for mental health in The 2014 Universal Periodic Report (UPR) Gambia, compatible with the African in which it issued 171 recommenda- Charter and international standards and tions. In March 2015, the government norms for the protection of mentally ill submitted its written response to 78 of or disabled person as soon as possible; the 171 recommendations including on create a body to review the cases of all the maintenance of the moratorium on persons detained under the Lunatics executions and the abolition of the Detention Act and make appropriate death penalty, and on cooperation with recommendations for their treatment or special procedures. The Gambia also release pending the first recommenda- rejected recommendations concerning tion. It was also recommended that the the ratification of the Convention state provide adequate medical and against Torture and Other Cruel, Inhu- material care for persons suffering from man or Degrading Treatment or Punish- mental health problems in the territory ment, the non-criminalisation of sexual of The Gambia. As a way to follow-up orientation or gender identity, and the on progress in implementing the deci- removal of restrictions on freedom of sion, it was recommended that The expression. Gambia report back to the African Commission when it submits its next 14 Communications involving this periodic report on the measures taken to state comply with the recommendations of the African Commission. A total of ten communications have These cases have not been given any been submitted to the African Commis- exposure by the government and are sion against The Gambia. Of these, only known within NGO circles. Begin- seven were dismissed for non-exhaus- ning with the last recommendation, The tion of local remedies, one was settled Gambia has not submitted any report to amicably and two were decided on the the African Commission since 1994. merits. In Sir Dawda Jawara v The The government in collaboration with Gambia,47 the African Commission had the World Health Organization is found The Gambia in violation of arti- currently drafting a Mental Health Bill. cles 1, 2, 6, 7(1)(d) and (2), 9(1) and (2), The African Commission has not been 10(1), 11, 12(1) and (2), 13(1), 20(1) and associated with this process and the Bill 26 of the African Charter and recom- is not in the least informed by the deci- mended that The Gambia should bring sion in the Purohit case.49 There have its laws in conformity with the provi- been many legislative reforms since sions of the Charter. these two cases were decided but there In Purohit and Another v The is no evidence that the decision to Gambia,48 The Gambia was found to be reform the laws was a result of the in violation of various articles of the recommendations of the African African Charter. The African Commis- Commission. sion recommended that: The Gambia should repeal the Lunatics Detention 49 Interview with Dr Senghore who is also a member of the Law Reform Commission of 47 (2000) AHRLR 107 (ACHPR 2000). The Gambia. This was also confirmed by 48 (2003) AHRLR 96 (ACHPR 2003). Gaye Sow. Impact of the African Charter and the Maputo Protocol in selected African states 89
At the sub-regional level, there have marks nine years since the arrest of been several decided cases before the Chief Manneh whose whereabouts ECOWAS Community Court of Justice remain unknown and the government dealing with violations of provisions of has not released him or pay the mandat- the African Charter against The ed compensation ordered by the Court Gambia. However, it is important to seven years ago. note the non-adherence to judgments of the Court by The Gambian govern- In the case of Musa Saidykhan v The 53 ment.50 Gambia, the plaintiff filed an applica- tion against The Gambia at the ECOW- In 2008, the ECOWAS Court of AS Community Court of Justice in 2007 Justice in the case of Chief Manneh v The in which he complained of a violation of Gambia,51 ordered the government of his human right to personal liberty, The Gambia to release ‘Chief’ Ebrima dignity of his person and fair hearing Manneh, a journalist who has been guaranteed by articles 1, 5, 6 and 7 of missing since July 2006, and pay his the African Charter. According to the family damages of US$100,000. Since plaintiff, the Editor of The Independent 2006, the reasons for his arrest have not newspaper based in The Gambia, they been disclosed by the government of published the names of alleged coup The Gambia and efforts by his family, plotters on 21 March 2006. Six days friends and lawyers to know his wherea- later, he was arrested at night by a bouts or have access to him have proved combined team of armed soldiers and futile. The plaintiff has not been seen policemen, without a warrant of arrest. since then. They took him to a detention centre in the headquarters of the National Intelli- A declaration was sought that his gence Agency (NIA) in Banjul. For the arrest on 11 July 2006 and his continual next 22 days, the plaintiff claimed he detention since then without trial, is was held totally incommunicado. unlawful and a violation of his right as guaranteed by articles 4, 5, 6 and 7 of In December 2010, having regard to the African Charter. In the absence of article 4(g) of the ECOWAS Revised The Gambian’s government failure to Treaty, which enables the court to apply establish that the arrest and detention of the African Charter, and having regard the plaintiff was in accordance with the to articles 5, 6, and 7 of the African provisions of any previously laid down Charter; and having regard to the find- law, the Court held that such an action ings of fact, the court decided that the was clearly contrary to the provisions of plaintiff had established his case that he articles 2 and 6 of the African Charter was arrested, detained and tortured by and that the plaintiff was entitled to the the defendant’s agents for 22 days, with- restoration of his personal liberty and out any lawful excuse and without the security of his person.52 July 2015 trial.54 The Court awarded the plaintiff damages in the sum of US$200 000. There is no evidence to show that the 50 See HS Adjolohoun ‘Giving effect to the government of The Gambia has adhered human rights jurisprudence of the Court of Justice of the Economic Community of West to the judgment of the court. African states: Compliance and influence’ unpublished LLD Thesis, University of Pretoria, 2013. 53 ECW/CCJ/JUD/08/10. 51 (2008) AHRLR 171 (ECOWAS 2008). 54 Musa Saidykhan (n 53 above) paras 46 and 52 Chief Manneh (n 51 above) paras 27 & 28. 47. 90 The Gambia
In the case of Etim Moses Essien v The 15 Special mechanisms and 55 Gambia, the ECOWAS court did not promotional visits by the find any violation with regard to the African Commission plaintiff’s rights as enshrined in article 5 on inherent human dignity and article There have been limited promotional or 15 on the right to work under equitable fact finding missions to The Gambia by and satisfactory conditions with equal special procedures mandate holders pay for equal work of the African Char- both at the regional and international ter respectively. levels due to the non-cooperation of the government of The Gambia. Recently, on 10 June 2014, in the case of Deyda Hydara Jr & Others v The 56 In terms of special mechanisms, Gambia, the ECOWAS Court deliv- Commissioner Dankwa, in his capacity ered judgment finding that the govern- as Special Rapporteur on Prisons and ment had failed to conduct a proper Conditions of Detention in Africa, investigation into the death of Deyda undertook a special mechanism visit in Hydara, the co-founder, publisher and the country from 21-26 June 1999.58 editor of the Point Newspaper who was There has been one promotional killed on 16 December 2004 in The mission of the African Commission to Gambia. The Court held that The The Gambia undertaken by Commis- Gambia had allowed a culture of impu- sioner Jainaba Johm from 22 December nity in The Gambia. The Court further 2001-5 January 2002. The report of this held that Deyda’s death violated the mission was not adopted by the African right to life as guaranteed by articles 1 Commission. and 4 of the Charter, as well as the right to freedom and the press as provided It is important to note that NGOs under article 9 of the Charter and article have sent a letter to the African 66 of the Revised Community Treaty. Commission requesting for a fact find- The Court awarded damages of US ing mission to The Gambia. This was $50,000 for the failure to properly inves- discussed during its 17th Extra-Ordinary tigate the assassination, as requested by Session in February 2015 in The the claimant. Gambia.59 In the same session, through the Resolution on the Human Rights There is no evidence to show that Situation in the Republic of The the government of The Gambia has Gambia, the Commission called on the adhered to the rulings of the court government to invite the African which are binding on them as a state Commission to undertake a fact-finding party. This was reiterated by Christof mission to The Gambia.60 There are no Heyns, who stated that the government indications yet whether the government has failed to implement the three deci- sions of the ECOWAS Court.57 58 The report is available at: http://www. achpr.org/states/gambia/missions/prisons- 1999/ (accessed 24 August 2015). 59 ACHPR ‘Final Communiqué of the 17th 55 ECW/CCJ/JUD/05/07. Extra-Ordinary Session of the African 56 ECW/CCJ/PP/30/11. Judgment available Commission on Human and Peoples’ Rights’ at https://www.opensocietyfoundations.org http://www.achpr.org/news/2015/03d167/ /sites/default/files/Hydara%20Judgment. (accessed 24 August 2015). pdf (accessed 30 September 2015). 60 ACHPR/Res.299 (EXT.OS/XVII) 20 http:/ 57 Report of the Special Rapporteur (n 23 /www.achpr.org/sessions/17th-eo/resolutio above) para 15. ns/299/ (accessed 24 August 2015). Impact of the African Charter and the Maputo Protocol in selected African states 91 of The Gambia will extend an invita- government has placed numerous tion. restrictions in the exercise of human rights, while necessary budgetary alloca- At the UN level, in November 2014, tions to sectors that fulfil the needs of the UN Special Rapporteur on Torture women remain low. Laws and policies and the Special Rapporteur on Extra- need financial resources to meet their Judicial Executions respectively, visited obligations and fulfil rights. The nation- The Gambia. This was the first visit ever al budget is essentially the political to the country by any of the special embodiment of government’s goals. The procedures of the Human Rights Coun- inadequate budgetary allocation to the cil. However, it was greatly compro- Women’s Ministry and its satellite insti- mised by the unwillingness of the tutions especially the Women’s Bureau, government to grant the Special as well as the social sectors, impede the Rapporteurs freedom of movement and implementation of programmes geared inquiry in all areas of detention facili- towards the realisation of the rights of ties. During their mission they were women in The Gambia. refused access to the Security Wing of Mile 2 Central Prison in the capital The Ministry of Women’s Affairs, Banjul, where death row prisoners are the National Women’s Council and held.61 Women’s Bureau are the lead advocates on women’s rights. However, they face 16 Factors that may impede or a plethora of administrative and institu- enhance the impact of the tional challenges, including inadequate African Charter, the Maputo gender expertise to ensure the full imple- Protocol and the African mentation of laws and policies on gender. Although the Ministry and the Commission Women’s Bureau have put in place vari- ous monitoring mechanisms such as As evident in the foregoing information, Focal Points, these are not always effec- it is clear that the African Charter, the tive. There are additional problems of Maputo Protocol and the African relying on counterparts and implement- Commission which is actually located in ing partners in collecting and monitor- Banjul have very minimal impact in The ing data as well as the need to ensure Gambia. the accuracy of information collected. In the first place, The Gambian There is, generally, inadequate judi- government has consistently demon- cial activism and reliance on interna- strated its willingness to disregard tional human rights instruments. Mere fundamental rights and freedoms of its existence of laws and policies cannot citizens, particularly the rights of girls guarantee respect, promotion and fulfil- and women. There is limited political ment of women’s rights. This raises the will and leadership to directly ensure issue of the level of consciousness-rais- that the rights of women are respected ing that the gender machinery is and protected. By law and practice, engaged in with all the laws and policies in place. This requires the awareness 61 UN Human Rights Council ‘Report of the and understanding of the laws and poli- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or cies and the capacity to do their part in punishment: Mission to The Gambia’ A/ implementation. For example, lawyers, HRC/28/68/Add.4 (16 March 2015) para 4. 92 The Gambia judges, teachers, social workers, law many within the wider African and enforcers amongst others should be global civil society movement have continuously trained on women’s rights called for the African Commission to be and specific legislation. Women, men, relocated elsewhere from The Gambia children and youth must also be aware in response to its consistent abuse of of these laws and policies to make sure rights.63 they are respected and adhered to and so that duty bearers are held accounta- It should be acknowledged that The ble. Gambia has made some progress that should be consolidated as evidenced by Not only has The Gambia failed to the enhancement of several legal and criminalise several socio-cultural prac- policy frameworks. A gender audit of all tices that harm the rights and dignity of laws and policies has been conducted. women and girls, such as early and This was in line with section 14 of the forced marriage, and wife inheritance, Women’s Act 2010 which obliged the but has also failed to take deliberate government, in line with its internation- measures to increase women’s voices al obligations under CEDAW and the and representation in decision making Maputo Protocol, to undertake such an processes and to put in place affirmative audit. With the support of the UNDP, action measures in many sectors. This the Ministry of Women’s Affairs indicates the disinterest of the state in commissioned a gender audit of existing women’s issues. Despite the fact that laws and policies. The purpose of the there is a woman Vice President, review was to identify the gaps in women’s political representation is national documents and make concrete extremely low amidst an overall inabili- recommendations to address gender ty to influence policy and decision inequalities and inequities. The audit making processes. There are too few made recommendations for review and women in elective positions at both the harmonisation of laws in line with inter- National Assembly and local govern- national obligations.64 ment levels and the district tribunals largely comprise of men.62 There has also been a proliferation of CSOs, NGOs, and professional Regardless of the fact that the coun- groups operating in the area of women’s try hosts the African Commission, with human rights and women’s empower- most of its extraordinary sessions taking ment – a growing women’s movement. place in Banjul, The Gambia remains Women’s involvement in the promotion insulated against the decisions and voic- and protection of women’s human es that emerge in these processes. rights has been on the increase. There Against the backdrop of repressive laws have also been marked increases in and arbitrary arrest, a climate of fear efforts to raise the voices of women and hovers over the heads of The Gambian to promote women’s leadership and civil society and media practitioners thus limiting their ability to utilise the 63 See blog post by F Viljoen ‘A call to shift the structures and processes of the African seat: The Gambia is not a suitable seat for the African Commission on Human and Commission to put pressure on the Peoples’ Rights’ (27 May 2013) http:// state. In fact, over the past few years, africlaw.com/2013/05/27/a-call-to-shift-the- seat-the-gambia-is-not-a-suitable-seat-for-the- african-commission-on-human-and-peoples- rights/ (accessed 30 August 2015). 62 Nabaneh (n 28 above) 48-57. 64 Nabaneh (n 32 above). Impact of the African Charter and the Maputo Protocol in selected African states 93 involvement in decision making, partici- pation and representation. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN GHANA
Michael Gyan Nyarko*
1Introduction After a series of constitutional dispensations interspersed with four Ghana was the first sub-Saharan Afri- military coup d’états, the country can country to gain independence from returned to civil constitutional rule in British rule, in 1957. The constitutional 1993 under the 1992 Constitution (the history of Ghana is long and chequered. Constitution) which established a The Independence Constitution of 1957 unitary presidential system of govern- established a parliamentary monarchy ment based on multi-party democracy. with Dr Kwame Nkrumah as Prime The Constitution establishes a constitu- 4 Minister.1 Ghana became a republic in tional supremacy with a Supreme 1960 with a new constitution which Court empowered to interpret the established a presidential system of Constitution and strike down acts and government based on multi-party omissions of the other branches of democracy. Ghana became a one-party government which are inconsistent with 5 state in 1964 through a constitutional the provisions of the Constitution. The amendment which made Dr Kwame Constitution also dedicates a chapter to Nkrumah’s ruling Convention Peoples’ ‘fundamental human rights and free- 6 Party (CPP) the only party recognised doms’ and guarantees civil and politi- by law. 2 The country slipped into dicta- cal rights as well as some economic, torship with this amendment which also social and cultural rights, including the 7 8 declared Nkrumah president for life.3 right to life, liberty of the person, 9 Nkrumah and his CPP were overthrown dignity, protection from cruel, inhu- 10 in a military coup d’état in 1966. man and degrading treatment, protec- tion from slavery and forced labour,11 equality before the law and non-discrim- ination,12 the right to property,13 the
4 Art 1 of the Constitution of Ghana (1992). * LLB (KNUST-Ghana), LLM HRDA 2014 5Art 2. (Pretoria), LLD Candidate and Tutor, Centre 6Chap 5. for Human Rights, University of Pretoria. 7 Art 13. 1 K Quashigah ‘The 1992 Constitution of 8 Art 14. Ghana’ (2013) 2 http://www.icla.up.ac.za/ 9 Art 15(1). images/country_reports/ghana_country_rep 10 Art 15(2). ort.pdf (accessed 20 August 2015). 11 Art 16. 2As above. 12 Art 17. 3As above. 13 Art 18(1) & 20.
95 96 Ghana right to privacy,14 and the right to a fair It must be noted that the rights trial.15 Others include freedom of protected under the Constitution are not expression,16 freedom of thought and exhaustive and may include ‘others not conscience,17 freedom of religion,18 specifically mentioned which are freedom of assembly and protest,19 free- considered to be inherent in a democra- dom of association including to form or cy and intended to secure the freedom join trade unions,20 the right to informa- and dignity of man’.38 Such rights may tion,21 freedom of movement,22 the include those guaranteed in ‘treaties, right to political participation,23 proper- conventions, international or regional ty rights of spouses,24 the right to fair accords, norms and usages’39 including administrative procedure,25 the right to ‘provisions of international human work under satisfactory, safe and rights instruments (and practice under healthy environment including the right them) or from the national human rights to form or join trade unions,26 the right legislation and practice of other to education,27 the right to culture,28 states’.40 women’s rights,29 children’s rights,30 and rights of persons with disabilities As indicated above, the Constitu- and the sick.31 The directive principles tion contains specific provisions which of state policy contained in chapter six are applicable to women. For instance of the Constitution also stipulate various article 28 guarantees the right of moth- rights, including the right to good health ers to be accorded ‘special care’ for a care,32 the right to inheritance,33 the reasonable period before and after child- right to effective participation in the birth including paid maternity leave. development process including the Women are also ‘guaranteed equal formation of associations for such rights to training and promotion without 41 participation,34 social assistance to the any impediment’. Other women’s aged,35 the right to secondary and right related constitutional provisions 42 tertiary education, subject to the availa- include non-discrimination, the prohi- 43 bility of resources,36 and the abolition of bition of harmful customary practices harmful cultural practices.37 and the right of spouses to an equal share of property jointly acquired during marriage.44 The Constitution also oblig- 14 Art 18(2). es the state to take ‘appropriate meas- 15 Art 19. 16 Art 21(1)(a). ures to achieve regional and gender 17 Art 21(1)(b). balance in recruitment and appointment 18 Art 21(1)(c). 45 19 Art 21(1)(d). to public offices’ and ‘necessary steps 20 Art 21(1)(e). so as to ensure the full integration of 21 Art 21(1)(f). women into the mainstream of the 22 Art 21(1)(g). 46 23 Art 21(3). economic development of Ghana’. It 24 Art 22. 25 Art 23. 26 Art 24. 38 Art 33(5). 27 Art 25. 39 Adjei-Ampofo v Attorney General [2003-2004] 28 Art 26. SCGLR 418. 29 Art 27. 40 Ghana Lotto Operators Association & Others v 30 Art 28. National Lottery Authority [2007-2008] 31 Arts 29 & 30 respectively. SCGLR 1088. 32 Art 34(2). 41 Art 28(3). 33 Art 36(7). 42 Art 17(2). 34 Art 37(2)(a). 43 Arts 26(2) & 39(2). 35 Art 37(6)(b). 44 Art 22. 36 Art 38(3)(a). 45 Art 35(6)(b). 37 Arts 26(2) & 39(2). 46 Art 36(6). Impact of the African Charter and the Maputo Protocol in selected African states 97 is also noteworthy that all the other women.52 Within the civil service, 24 rights enshrined in the Constitution are per cent of Chief Directors are women guaranteed on a non-discriminatory while in the local government service basis and therefore equally apply to only 8,2 per cent Municipal and District women. Chief Executives are women.53 ‘Nega- tive cultural perceptions of gender Even though there has been signif- equality’ persist, which continue to limit icant progress with regard to women’s women’s access to productive resources rights and women enjoy formal equal- such as land and credit.54 While female ity, substantive equality is far from being enrolment in school has improved achieved. Discrimination against considerably over the past decades at women and gender inequality is not the pre-tertiary levels of education (48,9 47 uncommon in Ghana. Domestic per cent in primary school), gender pari- violence is widespread and an estimated ty in higher education has still not been 15-30 per cent of women and girls in attained, with current female enrolment northern Ghana still undergo female figures at higher educational institutions 48 genital mutilation, even though the stand at 33,6 per cent of public universi- practice is proscribed by law. Women ty students, 33,1 per cent of polytechnic still face substantial challenges especial- students, and 43,3 per cent of Colleges ly with regard to political participation of Education.55 and decision making. Currently, women consist of a meagre 11 per cent of the 2 Ratification of the African members of parliament (30 out of 275) Charter and the Maputo almost the same as the 10,4 per cent Protocol women representation in Ghana’s first parliament in 1957.49 Within the exec- Ghana ratified the African Charter in utive, women make up 29 per cent of 198956 and the Maputo Protocol in ministers and 22 per cent of deputy 2007,57 without reservation.58 The ministers.50 Ghana’s Council of State, a presidential advisory body of 25 eminent persons has only three 51 Ghana’ (2013) 8 http://gwweb.jica.go.jp/ 51 km/FSubject1501.nsf/cfe2928f2c56e150492 women. In the judiciary, 29 per cent 571c7002a982c/a0b426e5087691cf49257afe of judges of the Supreme Court and 25 000cdf45/$FILE/%E8%8B%B1%E8%AA% 9E%E7%89%88%202012.pdf (accessed per cent of those in the High Court are 9 August 2015). 52 Ministry of Gender, Children and Social Protection (n 50 above) 32. 53 As above. 47 Make Every Woman Count ‘African 54 Ministry of Gender, Children and Social Women’s Decade 2010-2020: 2012 annual Protection (n 50 above) 3. review’ (2012) 69. 55 Ministry of Gender, Children and Social 48 As above. Protection (n 50 above) 10. 49 Network for Women’s Rights in Ghana 56 Ratification Table: African Charter on (NETRIGHT) ‘Ghana NGOs Alternative Human and Peoples' Rights http://www. Report for CSW 57’ (2012) 6. achpr.org/instruments/achpr/ratification/ 50 Ministry of Gender, Children and Social (accessed 9 August 2015). Protection ‘Ghana’s fourth progress report 57 Ratification Table: Protocol to the African on the implementation of the African and Charter on Human and Peoples' Rights on Beijing Platform of Action and review report the Rights of Women in Africa http://www. for Beijing +20’ (2014) 30 http://www.un achpr.org/instruments/women-protocol/rati women.org/~/media/headquarters/attach fication/ (accessed 9 August 2015). ments/sections/csw/59/national_reviews/ 58 African Union Executive Council ‘Report on ghana_review_beijing20.ashx (accessed the status of OAU/AU treaties’ (2012) 9 August 2015). EX.CL/728(XXI) Rev.1 http://www.peace 51 Japan International Corporation Agency au.org/uploads/ex-cl-728-xxi-e.pdf (JICA) ‘Country gender profile: Republic of (accessed 9 August 2015). 98 Ghana power for executing treaties on behalf of responsible for corresponding and Ghana is vested in the president as head reporting on treaties which Ghana has of the executive, which may be exer- ratified. Where the treaty relates to a cised in person or caused to be exercised specific theme, the sector Ministry on behalf of the president.59 The presi- responsible for that thematic area is also dent’s exercise of this power is however involved. Consequently, the Ministry of subject to ratification by an act of parlia- Justice, Ministry of Foreign Affairs and ment or a resolution of parliament Ministry of Gender, Children and Social passed by more than half of all the Protection62 (which is responsible for members of parliament.60 Parliament women’s rights issues) would be the therefore exercises an oversight respon- ‘natural’ focal points for the African sibility over the ratification of treaties, Charter and Maputo Protocol. Informa- which are only binding on Ghana after tion was not available on the views of parliamentary approval is secured. The these Ministries on the channel of process usually starts with the Minister communication with the African responsible for the particular subject Commission and the institutionalisation matter of the treaty consulting with the of the state’s responsibilities in relation Attorney General. The outcome of this to the African Charter and the Maputo process is submitted to Cabinet which Protocol. approves it and directs the treaty to be submitted to parliament for ratification. 4 Domestication or incorporation Once parliament ratifies, the instrument of ratification is forwarded to the Minis- Ghana, like many common law coun- try of Foreign Affairs for onward trans- tries, follows a dualist approach to trea- mission to the relevant treaty body. ty implementation. Thus, ratified treaties are not directly enforceable in No official statements were found Ghana unless and until domesticated with regard to the reasons for ratifica- through an act of parliament occurs.63 tion of the African Charter or the Mapu- That said, Ghana’s notoriety for non- to Protocol. domestication of international human rights instruments is well known.64 3 Government focal points
61 Session 29 March-7 April 1993, Banjul, The Information was not readily available Gambia ACHPR/MOC/XIII/008. on the government department specifi- 62 The Ministry of Gender, Children and Social Protection (formerly, Ministry of Women cally responsible for the African Charter and Children’s Affairs) generally reports to and Maputo Protocol. Review of state treaty bodies on women and children’s rights issues. reports submitted to the African 63 AKP Kludze ‘Constitutional rights and their Commission in the past and other UN relationship with international human rights in Ghana’ (2008) 41 Israel Law Review 677 treaty bodies suggests that two main 679; EK Quansah ‘An examination of the Ministries – the Ministry of Justice and use of international law as in interpretative 61 tool in human rights litigation in Ghana and Ministry of Foreign Affairs are Botswana’ in M Killander (ed) International law and domestic human rights litigation in Africa (2010) 37 39; Quashigah (n 1 above) 21. 59 Art 75(1) of the 1992 Constitution of Ghana. 64 F Viljoen International Human Rights Law in 60 Art 75(2) of the 1992 Constitution. Africa (2012) 530-531; see also EVO Dankwa 61 The Ministry of Foreign Affairs submitted ‘Implementation of international human Ghana’s previous state reports to the African rights instruments: Ghana as an illustration’ Commission. See African Commission (1991) 3 ASICL Proc 57; Kludze (n 63 above); ‘Periodic report of Ghana’, 13th Ordinary Open Society Initiative for West Africa Impact of the African Charter and the Maputo Protocol in selected African states 99
Ghana has not explicitly domesticated Constitution, however, expressly most of the international and regional provides that the Constitution is the human rights instruments it has ratified supreme law of Ghana and all other including the African Charter and laws found to be inconsistent with its Maputo Protocol. The attention of the provisions are void to the extent of the Attorney General was drawn to this inconsistency.71 The Constitution, anomaly during the African Commis- however, obliges the state to ‘promote sion’s promotional mission to Ghana in respect for international human rights 2008.65 That notwithstanding, the law, treaty obligations and settlement of Constitution of Ghana, which was international disputes by peaceful adopted subsequent to Ghana’s ratifica- means’ and to adhere to treaties of inter- tion of the African Charter, was signifi- national organisations to which Ghana cantly influenced by the African is a member.72 In this regard, the Charter.66 There are therefore many Supreme Court has held that ratified provisions in the Constitution which treaties are not binding until incor- directly correspond with provisions in porated by law and even then the the African Charter67 and Maputo Constitution remains the supreme law Protocol.68 of Ghana, having precedence (to the extent of any inconsistency) over ratified The Constitution of Ghana does not treaties73 including the African Charter clearly spell out the relationship and Maputo Protocol. This traditionalist between international law and national position notwithstanding, the Supreme 69 law. Neither is international law Court has in recent years adopted a included amongst the sources of law more progressive position towards the 70 enumerated by the Constitution. The enforcement of international human rights treaties – holding that non-domes- tication of human rights treaties does 64 (OSIWA) & Institute for Democratic Gov- ernance (IDEG) ‘Ghana: Justice sector and not per se mean that they should be the rule of law’ (2007); K Appeagyei-Atua disregarded by national courts.74 This ‘Ghana at 50: The place of international human rights norms in the courts’ in was the Supreme Court’s position in H Mensa-Bonsu et al (eds) Ghana law since NPP v Inspector General of Police,75 where independence: History development and prospects (2007); Quansah (n 63 above); NA Anyidoho the court held that the fact that Ghana ‘Review of rights discourse – Ghana’ (2009) had not domesticated the African Char- Human rights, power and civic action research project, Universities of Oslo, Leeds and Ghana. ter does not mean that it cannot be 65 African Commission ‘Report of the relied upon. The Supreme Court has promotion visit to the Republic of Ghana’ (2008) para 58. also held that the non-exclusion clause 66 Kludze (n 63 above). See also Anyidoho in article 33(5) of the Constitution (n 64 above) 12. 67 As above. provides an avenue for provisions of 68 Human Rights Committee ‘Consideration of international human rights instruments reports submitted by States parties under article 40 of the Covenant: Ghana’ (and the practice under them) to be used (30 January 2015) CCPR/C/GHA/1 47. It where such rights are not expressly must be clarified that the Maputo Protocol came into force a decade after the adoption of 1992 Constitution of Ghana and therefore its provisions could not have been contem- plated in the drafting of the Constitution. 71 Art 1(2). This notwithstanding, many of the provi- 72 Art 40. See also Quansah (n 63 above) 41. sions of the Constitution corresponds with 73 NPP v Attorney-General [1996-97] SCGLR provisions of the Maputo Protocol. 729 761. 69 Quansah (n 63 above). 74 NPP v Inspector General of Police [1993-94] 2 70 Art 11 does not include international law as GLR 459. one of the sources of law in Ghana. 75 As above. 100 Ghana guaranteed in the Constitution.76 In ‘female idiot’ or incest; where the preg- addition, the Constitution mandates nancy would involve risk to the life or that the state ‘be guided by international health of the women; and where the human rights instruments in develop- child may suffer substantial physical ment processes’.77 abnormalities when born.81 Similarly, the repeal of criminal libel and sedition 5 Legislative reform or adoption provisions in the Criminal and Other Offences Act enhanced the enjoyment No evidence of a compatibility study of of the right to freedom of speech, espe- 82 domestic law with the African Charter cially press freedom. In terms of new or the Maputo Protocol conducted by legislation adopted, the Children’s Act, the government of Ghana prior to the 1998 criminalises underage and forced ratification of these instruments was marriages, and fixes the minimum age found. Neither has legislation been of marriage at 18, providing protection 83 adopted which explicitly mentions the for women and girls. African Charter or the Maputo Proto- col. However many legislative reforms Additionally, the Intestate Succes- have been adopted which implicitly give sion Law, 1985 protects the rights of effect to the African Charter and the spouses and children (women and the girl child were usually excluded under Maputo Protocol.78 As indicated in the customary law prior to this) to inherit a immediately preceding section, the Bill substantial share (two-thirds) of the of Rights in the Constitution corre- estate of a deceased spouse or parent sponds with many of the rights in the who dies without a will. Both male and African Charter. In addition to the Bill female children receive an equal share of Rights, many legislative amendments of the deceased parent’s estate.84 to the Criminal and Other Offences Act Simi- of 1960 have been adopted to enhance larly, the Labour Act, 2003 guarantees women equal pay for equal work on a the full enjoyment of human rights. 85 These include criminalisation of harm- non-discriminatory basis with men. ful practices such as female genital muti- The Labour Act also prohibits the assignment of pregnant employees from lation79 and customary servitude the regular place of residence after the (trokosi).80 Abortion on the other hand fourth month of pregnancy and guaran- has been decriminalised where the preg- tees a minimum of 12 weeks maternity nancy results from rape, defilement of a leave.86 The Public Order Act, 1994 76 Ghana Lotto Operators Association & Others v National Lottery Authority [2007-2008] SCGLR 1088 1096; Adjei-Ampofo v Attorney- 81 Sec 58(2) of the Criminal & Other Offences General [2003-2004] 1 SCGLR 411; NPP v Act. Attorney-General [1996-97] SCGLR 729 761. 82 Criminal Code (Repeal of criminal libel and 77 Article 37(3). seditious laws) (Amendment) Act, 2001 (Act 78 It must be highlighted that many of these 602). See also K Quashigah ‘Trends in the legislative reforms preceded Ghana’s promotion and protection of human rights ratification of the Maputo Protocol which under the 1992 Constitution of Ghana’ in may have been done in anticipation of K Boafo-Arthur (ed) Ghana: One decade of the bringing the laws into conformity with the liberal state (2007) 21. Maputo Protocol prior to ratification. On the 83 Sec 13 of the Children’s Act, 1998 (Act 560); hand, these reforms may also have been done see also African Development Fund ‘Ghana to bring the laws in conformity with Country Gender Profile’ (2008) vi. CEDAW which Ghana had earlier ratified. 84 Interstate Succession Law, 1985 (PNDCL 79 Sec 69A of the Criminal & Other Offences 111). Act, 1960 (Act 29). 85 Secs 10(b) & 68 of the Labour Act, 2003 (Act 80 Sec 314A of the Criminal & Other Offences 651). Act. 86 Sec 57 of the Labour Act. Impact of the African Charter and the Maputo Protocol in selected African states 101 facilitates the enjoyment of the right to which protects all persons, especially assembly and peaceful protest by remov- women and girls (usually the victims of ing the erstwhile requirement of police domestic violence) from all forms of permit (this has been replaced with noti- violence especially within the domestic fication) to demonstrate and also guar- setting;91 and the National Peace Coun- antees the right of protesters to police cil Act, 2011 (Act 818) which establishes protection.87 The National Health the National Peace Council with a core Insurance Act, 2003 (Act 650) which mandate to prevent, manage and resolve established the national insurance conflict and build sustainable peace.92 scheme to provide affordable health Other bills currently in the process of insurance has improved access to health being enacted to further enhance the care.88 The Legal Aid Scheme Act, 1997 enjoyment of human rights include the (Act 542), provides legal aid in the form Property Rights of Spouses Bill 2013 – of ‘representation by a lawyer, including to ensure equitable distribution of prop- all such assistance as is given by a erty acquired during marriage;93 the lawyer’ to indigent persons who earn Right to Information Bill, 2013 – to less than the government minimum facilitate the enjoyment of the right to wage, to enable access to justice.89 The information;94 and the Affirmative Patient’s Charter spells out extensively Action Bill – to ensure women’s equali- the rights of patients including protec- ty and participation in the public tion from non-discrimination, the right service.95 The government of Ghana has to quality health care and the right to also accepted a proposal by the Consti- information regarding treatment.90 tutional Review Commission to amend the Constitution ‘to provide that all Other promising legislative interven- tions include the Human Trafficking Act, 2005 (Act 694) which was passed 91 A-G Abdulai ‘Political context study-Ghana’ (2009) Human rights, power and civic action to combat the growing menace of research project, Universities of Oslo, Leeds and human trafficking (of mostly women Ghana 5. 92 National Peace Council Act, 2011 (Act 818). and children); the Disability Act, 2006 See also National Peace Council, ‘Five-year (Act 715) to promote and protect the Strategic Plan for the National Peace Council 2013-2017)’ (2013) 9; and Ministry rights of persons with disabilities; the of Gender, Children and Social Protection (n Domestic Violence Act, 2007(Act 732) 50 above) 25. 93 GAS Evelyn & Women in Law and Development Africa (WILDAF-Ghana) ‘Property rights of spouses in relation to 87 Secs 1 & 2 of the Public Order Act, 1994 (Act economic violence against women in Ghana’ 491). See also Anyidoho (n 64 above) 9; (2013) https://www.researchgate.net/publi OSIWA & IDEG (n 64 above). cation/264051209_Property_Rights_of_Spo 88 NJ Blanchet, G Fink & I Osei-Akoto ‘The uses_in_Relation_to_Economic_Violence_A effects of Ghana’s National Health Insurance gainst_Women_in_Ghana (accessed Scheme on health care utilisation’ (2012) 46 20 August 2015). Ghana Medical Journal 76 http:// 94 Commonwealth Human Rights Initiative www.ncbi.nlm.nih.gov/pmc/articles/ ‘The Right to Information Bill 2013 of PMC3426378/ (accessed 16 August 2015); Ghana: A critique and recommendation for PA Dalinjong & AS Laar ‘The national improvement’ (2013) http://www.human health insurance scheme: Perceptions and rightsinitiative.org/postoftheday/2013/Dec experiences of health care providers and /GhanaRTIBill2013_CHRI_Critique_ATI_ clients in two districts of Ghana’ (2012) 2 Team_Dec13.pdf (accessed 17 August 2015); Health Economics Review http://www. KK Adu ‘Ghana’s Right to Information Bill: healtheconomicsreview.com/content/2/1/ An opportunity for the implementation of 13 (accessed 16 August 2015). digital preservation structure’ (2014) 4 89 Sec 2 of the Legal Aid Scheme Act, 1997 Journal of Emerging Trends in Computing and (Act 542). Information Sciences 795. 90 Sixth Schedule of the Public Health Act, 95 Government of Ghana ‘Gender Ministry, 2012 (Act 851). stakeholders speak on Affirmative Action 102 Ghana public institutions must be composed of mentions the African Charter and at least thirty per cent [30%] of each Maputo Protocol amongst the instru- gender’,96 in a bid to increase the partic- ments which the policy seeks to imple- ipation of women in public institutions ment.99 The goal of the policy is to which are currently dominated by men. improve access to health care for both men and women by giving due attention 6 Policy reform or formulation to gender consideration in health care delivery in order to promote equity and 100 Although Ghana has not adopted a equality between men and women. specific policy framework explicitly giving effect to the African Charter and In implicit terms, the Ghana Shared the Maputo Protocol in totality, many Growth and Development Agenda, government policies contain human 2010-2013 (GSGDA) set out amongst rights commitments which are in line its objectives promotion of fundamental with the provisions of the African Char- human rights and enforcement of rati- fied regional and international human ter and the Maputo Protocol. A few 101 government policies explicitly mention rights instruments. It also committed the African Charter and the Maputo to ensuring protection of the rights of Protocol as instruments which influ- vulnerable groups such as children, enced the policy objectives. For persons with disabilities and women; improving access to justice; and improv- Instance, the National HIV and AIDS, 102 STI Policy mentions amongst others the ing human safety and security. Other African Charter – on the right to highest human rights commitments in the attainable standard of health ‒ as one of GSGDA include enhancing the partici- the international human rights instru- pation of local communities in environ- ments ratified by Ghana to which the mental and natural resource management;103 policy seeks to align its objectives.97 The improving human objectives of the policy include eliminat- settlement development through improved access to housing and slum ing mother to child transmission, 104 improving access to treatment, alleviat- upgrading; ‘increasing equitable ing the socio-economic effects of HIV access to and participation in quality and AIDS, ensuring that HIV and AIDS prevention and control are pursued in a 99 Ministry of Health ‘Health Sector Gender gender sensitive manner and ensuring Policy’ (2009) 5 http://www.moh-ghana. org/UploadFiles/Publications/Gender%20 that the basic human rights of persons policy091221104951120330053957.pdf living with HIV and AIDS or other STIs (accessed 10 October 2015). 98 100 Ministry of Health (n 99 above) 21. are ‘respected, protected and upheld’. 101 Government of Ghana, National Develop- The Health Sector Gender Policy also ment Planning Commission ‘Medium term national development police framework: Ghana Shared Growth and Development Agenda (GSGDA), 2010-2013’ (2010) 158 95 Bill’ http://www.ghana.gov.gh/index.php/ https://s3.amazonaws.com/ndpc-static/pub media-center/news/1802-gender-ministry- ication/%28GSGDA%29+2010-2013_Dece stakeholders-speak-on-affirmative-action-bill mber+2010.pdf (assessed 15 August 2015). (accessed 28 August 2015) 102 Government of Ghana, National Develop- 96 Government of Ghana ‘White paper on the ment Planning Commission (n 101 above) Report of the Constitution Review Commis- 159-62. sion of Enquiry’ (2012) 14. 103 Government of Ghana, National Develop- 97 Ghana Aids Commission ‘National HIV and ment Planning Commission (n 101 above) AIDS, STI Policy’ (2013) 5 http://www. 60-61. healthpolicyproject.com/pubs/153_Policyfi 104 Government of Ghana, National Develop- nal.pdf (accessed 22 August 2015) ment Planning Commission (n 101 above) 98 Ghana Aids Commission (n 97 above) 7. 84-86. Impact of the African Charter and the Maputo Protocol in selected African states 103 education at all levels’;105 and bridging targeted communities.113 The National the gender gap in access to educa- Gender and Child Policy of 2004 had tion,106 amongst others. These commit- amongst its objectives redressing gender ments are reiterated and renewed in the inequalities, strengthening women’s role Ghana Shared Growth and Develop- in economic development and promot- ment Agenda 2014-2017 (GSGDA ing ‘women’s equal access to and II).107 control of economically significant resources and benefits’.114 In addition, the Education Strategic Plan 2010-2020 in line with the Consti- The government has recently tution commits to amongst other things approved a new National Gender Policy providing free universal basic education which aims at mainstreaming gender (including providing free meals for equality concerns into the national learners in the most impoverished areas development process’ and empower to ensure retention of learners);108 bridg- marginalised groups such as women, ing the gender gap in access to educa- children and persons with special needs. tion;109 and improving access and The broad policy objectives of the policy quality of education for persons with include ‘women empowerment and live- disabilities.110 Ghana also introduced lihoods; women rights and access to gender responsive budgeting in 2007 to justice; women leadership and account- ensure women’s rights issues are proper- able government; economic opportuni- ly taken account of in the budget.111 ties for women and gender roles and The National Social Protection Strategy relations’.115 (NSPS)112 provides the framework for the Livelihood and Empowerment Under the Affirmative Action Poli- against Poverty (LEAP), a social protec- cy guidelines of 1998, government tion programme of the Ministry of committed itself to ensuring 40 per cent Gender, Children and Social Protection representation of women at all levels of which aims to reduce food insecurity, governance, on Public Boards, Commis- malnutrition and extreme poverty in sions, Councils, Committees and Offi- cial Boards including Cabinet and the Council of State.116 105 Government of Ghana, National Develop- ment Planning Commission (n 101 above) 94. 106 Government of Ghana, National Develop- ment Planning Commission (n 101 above) 96-97. 107 Government of Ghana, National Develop- 113 National Development Planning Commis- ment Planning Commission ‘Medium-term sion/Government of Ghana & United national development police framework: Nations Development Programme (UNDP) Ghana Shared Growth and Development Ghana ‘Ghana millennium development Agenda (GSGDA) II, 2014-2017’ (2014) goals report’ (2010) 9; S Handa et al ‘Liveli- https://s3.amazonaws.com/ndpc-static/pub hood empowerment against poverty impact ication/GSGDA+II+2014-2017.pdf evaluation’ (2013) Carolina Population (accessed 15 August 2015). Center, University of North Carolina. 108 Government of Ghana, Ministry of Educa- 114 Ministry of Women and Children’s Affairs tion ‘Education Strategic Plan 2010-2020’ ‘National Gender and Children Policy’ (2010) 15 http://www.moe.gov.gh/assets/ (2004) http://www.hsph.harvard.edu/popu media/docs/ESP2010-2020Vol1Final.pdf lation/womenrights/ghana.gender.04.pdf (accessed 15 August 2015). (assessed 20 September 2015). 109 As above. 115 Government of Ghana ‘Gov’t approves 110 As above. national gender policy’ http://www.ghana. 111 African Development Fund ‘Ghana country gov.gh/index.php/media-center/news/1822 gender profile’ (2008) 5. -govt-approves-national-gender-policy 112 Government of Ghana ‘National Social (accessed 30 September 2015). Protection Strategy’ (2007). 116 Human Rights Committee (n 68 above) 28. 104 Ghana
7 Court judgments Charter means that the Charter cannot be relied upon. On the contrary, article 21 of our Constitution, 1992 has recognised the As indicated above, there is no direct right of assembly mentioned in article 11 of constitutional provision on the use of the African Charter. international law in litigation before the courts.117 Consequently, the courts in The Court then proceeded to find that Ghana have not adjudicated on many the requirement of obtaining a permit to cases in which international human exercise the right to demonstrate not rights instruments and especially the only violates the Constitution of Ghana African Charter and Maputo Protocol but also article 11 of the African Char- 120 are invoked as the primary bases of liti- ter. gation. The Courts have, however, had the opportunity in a number of instances This position was reiterated by the Supreme Court in Ocansey and Others v to find violations of the African Charter 121 or at least use its provisions and the The Electoral Commission and Another, decisions of the African Commission as in which applicants challenged the an interpretative guide. constitutional validity of sections of the Representation of The People Law of 122 In New Patriotic Party v Inspector – 1992 which disqualified prisoners General of Police,118 the applicants chal- from voting. Even though the Court did lenged provisions of the Public Order not find a substantive violation of the Decree of 1972 which provided that African Charter in this case, it cited arti- processions and public demonstrations cle 5 of the African Charter in its discus- could only be undertaken pursuant to a sion of the right to dignity guaranteed in 123 permit granted by the police. The appli- the Constitution. The Court also cant’s contention was that these provi- mentioned that the African Commission sions were in contravention to the right ‘has often based its findings of breach of to freedom of assembly and association Article 5 on torture and cruel practices guaranteed in the Constitution of relating to imprisonment’; even though Ghana. The Supreme Court in uphold- no specific jurisprudence or soft law of ing the case of the applicant relied on the African Commission was refer- 124 amongst others provisions of the Afri- enced. can Charter holding that non-domestica- In Asare & Others v Ga West District tion of the African Charter does not 125 prevent the court from relying on it. In Assembly & Another, the applicants the words of Chief Justice Archer:119 challenged the demolition of their
Ghana is a signatory to this African 120 As above. Charter and member states of the OAU 121 Ocansey and Others v The Electoral Commission and parties to the Charter are expected to and Another (2010) 26 http://www.chr.up. recognise the rights, duties and freedoms ac.za/images/files/documents/africancases enshrined in the Charter and to undertake /country/ghana/ocansey_others_electoral_ commission_2010.pdf (accessed 17 Septem- to adopt legislative and other measures to ber 2015). give effect to the rights and duties. I do not 122 Representation of the People Law, 1992 (P N think the fact that Ghana has not passed D C L 284). specific legislation to give effect to the 123 Representation of the People Law 40. 124 As above. 125 Asare and Others v GA West District Assembly & Another (2009) AHRLR 343 (GhHC 2009) 117 Quansah (n 63 above) 42. http://opil.ouplaw.com/view/10.1093/law: 118 [1993-94] 2 GLR 459. ildc/1488gh08.case.1/law-ildc-1488gh08 119 New Patriotic Party 466. (accessed 20 August 2015). Impact of the African Charter and the Maputo Protocol in selected African states 105 homes as a violation of their rights to 8 Awareness and use by civil life and property. The first respondent society (the Ga West District Assembly) had earmarked the applicants’ houses for There is a substantial presence of civil demolition because they were built society organisations in Ghana. Civil across water courses, leading to heavy society in Ghana has evolved over the flooding during heavy rains. The High past few decades to increasingly playing Court cited article 4 of the African quite a dominant role in public policy Charter and the African Commission’s making in Ghana. This is as a result of 126 decision in Aminu v Nigeria in its the rather liberal and conducive envi- discussion of the right to life guaranteed ronment created by the Constitution,131 127 in the Constitution. On the right to which encourages right-based activism 128 property, the Court further cited arti- by guaranteeing ‘the enjoyment of rights cle 14 of the African Charter as well as of effective participation in development the African Commission’s decision in processes including rights of people to the Constitutional Rights Project and Others form their own associations free from 129 v Nigeria. The Court concluded that state interference ...’132 NGOs, thus, article 14 of the African Charter allowed actively engage with government and a limitation of the right to property increasingly influence government poli- where such limitation is in the general cy.133 Abdulai illustrates this with the interest of the community. Consequent- example of a coalition on women’s ly, since the location of the applicants’ rights which in 2005 initiated a national homes was not in the general interest of discussion on the menace of domestic the community, their demolition was in violence in Ghana ‒ eventually leading line with the provision of article 14 of to the enactment of the Domestic 130 the African Charter. Violence Act in 2007 (the initial bill was drafted by the NGO coalition).134 No evidence was found of the use of the resolutions or general comments of A cursory review of the programmes the African Commission or the Maputo and advocacy work of NGOs in Ghana Protocol by or in the courts. The exam- indicates quite extensive use of the Afri- ples above, however, indicate prepared- can Charter and to a greater extent the ness of the courts to rely on the African Maputo Protocol, especially by Charter, Maputo Protocol and other soft women’s rights NGOs which are some law instruments and decisions of the of the most visible civil society organisa- African Commission. The courts use of tions in Ghana. Several NGOs have these instruments would be largely influ- observer status before the African enced by the frequency with which liti- Commission.135 Records of shadow gants and their lawyers cite them in reports submitted by NGOs on Ghana’s their arguments before the courts. state reports to the African Commission could not be obtained – likely attributa- ble to the fact that Ghana has not
126 Aminu v Nigeria (2000) AHRLR 258 131 Abdulai (n 91 above) 16. (ACHPR 2000). 132 Art 37(2)(a) of the 1992 Constitution. 127 Asare (n 125 above) paras 25-35. 133 Abdulai (n 91 above) 17. 128 Asare (n 125 above) para 36-46. 134 Abdulai (n 91 above) 16. 129 Constitutional Rights Project and Others v 135 For a list of these NGOs, see http://www. Nigeria (2000) AHRLR 227 (ACHPR 1999). achpr.org/states/ghana/ (accessed 23 Octo- 130 Asare (n 125 above) paras 45-46. ber 2015). 106 Ghana submitted its state reports since 2001. applicants’ homes did not constitute a NGOs, however, submit shadow reports violation of the right to property on Ghana’s reports to various UN treaty enshrined in article 18 of the Constitu- bodies. tion and article 14 of the African Char- ter since the location of the houses were 9 Awareness and use by lawyers not in the general interest of the and judicial officers community. The demolitions were thus justified in terms of the public interest As indicated below, human rights law is qualification of article 14 of the African Charter.139 The Court agreed with the taught in the majority of law faculties in 140 Ghana at the undergraduate level. The respondents. awareness of the African Charter and Specific information on awareness the Maputo Protocol amongst practicing of the African Charter and Maputo lawyers can therefore be reasonably Protocol amongst judicial officers was inferred. However, while a good not readily available. However, in 2007, number of lawyers is aware of the Afri- AfriMap, Open Society Initiatives for can Charter and the Maputo Protocol, West Africa (OSIWA) and The Institute this has not resulted in their use in litiga- for Democratic Governance (IDEG) tion before the courts. The use of the reported that ‘judges in Ghana have African Charter and the Maputo Proto- little knowledge of international human col and indeed international human rights law, and training to encourage the rights instruments in litigation generally application of international law princi- is rather abysmal. ples in national courts should be 141 As indicated above, the African expanded’. This call was reiterated by Justice SK Date-Bah (then Justice of Charter has been utilised in litigation 142 before the courts in at least three cases. the Supreme Court) in 2008. In the It was, however, not clear from the course of the study, the researcher came judgments whether the reference made across reports of human rights training of judges and other judicial officers to the African Charter by the courts in 143 all three judgements was as a result of often under the auspices of NGOs. their use in arguments of lawyers before Evidence was also not available on the courts. The use of the provisions of whether the Judicial Training Institute the African Charter in arguments of which is responsible for training new lawyers before the courts was only and promoted judges has incorporated discernible in one of the cases. international human rights law into its curriculum. A specialised ‘Human In Asare & Others v GA West District Assembly & Another,136 counsel for the 137 139 Asare (n 125 above) para 41. applicants argued that the demolition 140 Asare (n 125 above) para 146. of the applicant’s houses was in viola- 141 AfriMap, Open Society Initiatives for West Africa (OSIWA) and The Institute for tion of article 14 of the African Char- Democratic Governance (IDEG) ‘Ghana: ter.138 The second respondent, on the Justice sector and rule of law’ (2007) 4. 142 E Hanson ‘Judges asked to sharpen skills in contrary, argued that demolition of the human rights matters’ Ghanaweb 31 March 2008 http://www.ghanaweb.com/public_ agenda/article.php?ID=9713 (accessed 136 Asare (n 125 above). 30 September 2015). 137 The applicants were represented by the 143 Hanson (n 142 above). See also ‘Judges Centre for Public Interest Law. attend seminar on emerging trends of human 138 Asare (n 125 above) paras 38-40. rights’ Ghanaweb 22 September 2011. Impact of the African Charter and the Maputo Protocol in selected African states 107
Rights Division’ of the High Court has University College,148 King’s University been established to hear human rights College,149 GIMPA Law School150 and cases. However, the UN Working the University of Cape Coast.151 In Group on the issue of human rights and addition to the undergraduate transnational corporations and other programmes, the University of Ghana business enterprises reported in 2014 offers an LLM/MPhil programme in that ‘in some instances, judges of those human rights and humanitarian law of courts lack adequate training’.144 which the African Charter and Maputo Protocol form an important part.152 10 Higher education and academic writing A number of the law faculties are also regular participants of the African Human Rights Moot Court Competi- Eight universities145 in Ghana offer tion organised annually by the Centre undergraduate courses leading to the for Human Rights (University of Preto- award of a bachelor of laws degree in ria), which amongst others aims at Ghana. The African human rights creating awareness of the African system including the African Charter human rights system and instruments and Maputo Protocol is taught as part of amongst law students across the conti- international human rights law in many nent.153 It can therefore be inferred that of these faculties. In some faculties it is the African Charter and Maputo Proto- taught as a compulsory subject whilst in col are not unknown to a good number others it is an elective subject. The of law students at the undergraduate curriculum of the University of Ghana level. This is however not the case with for instance devotes two academic the Ghana School of Law where semesters to the teaching of internation- lawyers receive practical advocacy train- al human rights law, of which the Afri- ing before being called to the bar ‒ can human rights system forms an human rights law is not a part of that integral part.146 At the Faculty of Law curriculum. of Kwame Nkrumah University of Science and Technology, international human rights law is taught as an elective subject.147 This is also true of the Zenith 148 Zenith University College ‘The LLB programme’ http://www.zenithuniversity college.org/site/programmes/detail/6 144 Human Rights Council ‘Report of Working (accessed 5 September 2015). Group on the issue of human rights and 149 Kings University College ‘LLB Law: Course transnational corporations and other Handbook 2014-2015’ (2014) http://www. business enterprises – Visit to Ghana’A/ kuc.edu.gh/images/phocadownload/llb.pdf HRC/26/25/Add.5 para 25. (accessed 5 September 2015). 145 These are University of Ghana, Kwame 150 http://www.new2.gimpa.edu.gh/index.php? Nkumah University of Science and id=39 (accessed 5 September 2015). Technology (KNUST), Ghana Institute of 151 University of Cape Coast http://ucc.edu.gh/ Public Administration (GIMPA), University academics/view/5196/department/5198/pr of Cape Coast, Central University College, ogramme/5391 (accessed 5 September Mountcrest University College, Kings 2015). University College, Zenith University 152 University of Ghana – School of Law College. ‘Programmes’ http://law.ug.edu.gh/acade 146 University of Ghana, School of Law ‘Course mics/programmes (accessed 5 September descriptions’ http://law.ug.edu.gh/academi 2015). cs/course_descriptions (accessed 5 Septem- 153 Notably the University of Ghana, Kwame ber 2015). Nkrumah University of Ghana and Ghana 147 KNUST, Faculty of Law ‘Course description Institution of Management and Public in LLB programme’ http://archive.knust. Administration (GIMPA) have participated edu.gh/pages/sections.php?siteid=law&mid in the African Human Rights Moot Court =258&sid=846 (accessed 5 September 2015). Competition several occasions. 108 Ghana
Academics have quite widely mandate as national human rights insti- referred to the African Charter154 and to tution,159 ombudsman160 and anti- a lesser extent the Maputo Protocol155 corruption agency.161 The human rights mostly in highlighting the fact that mandate of CHRAJ includes monitor- Ghana has ratified these instruments as ing Ghana’s implementation of national part of its commitment to human rights. and international human rights law.162 Many of these academics have also Examinations of official policies and discussed the African Charter in terms reports indicate that CHRAJ uses of how its provisions influenced the (though not very regularly) the African Constitution of Ghana and how the Charter and Maputo Protocol in its provisions of the African Charter may programmes. CHRAJ has for instance be enforced in Ghana. Others have in its reports highlighted some of the discussed the practical implications of obligations of Ghana in terms of the the African Charter on some of the laws African Charter and Maputo Proto- of Ghana.156 Evelyn Ankumah157 and col.163 CHRAJ follows up on the Professor Kuffour158 on the other hand concluding observations and decisions have extensively discussed the African of the African Commission in addition Charter with regard to the procedures to making its own detailed recommen- and practice of the African Commis- dations to government on its obligations sion. under various human rights treaties.164 Information could not be obtained on 11 National human rights the role of CHRAJ in the preparation of institutions state reports to the African Commission given that Ghana has not submitted a The Commission on Human Rights and state report since 2001. CHRAJ has, Administrative Justice (CHRAJ) was however, been involved in the prepara- tion and submission of Ghana’s Univer- established in 1993 under Ghana’s 165 Constitution. CHRAJ has a tripartite sal Periodic Review report.
154 Abdulai (n 91 above); Kludze (n 63 above); Anyidoho (n 64 above); NKA Busia Jnr 159 Article 218(a), (c) and (f) of the Constitution ‘Ghana’ in AA An-Na'im (ed) Human rights and sec 7(1)(a), (c) & (g) of the CHRAJ Act, in African constitutions: Realizing the promise for 1993 (Act 456). ourselves (2013); Appeagyei-Atua (n 64 160 Articles 218(a), (b) of the Constitution and above); SY Binpong-Buta ‘The role of the sec 7(1)(a), (b) of the CHRAJ Act, 1993 (Act Supreme Court in the development of 456). constitutional law in Ghana’ LLD thesis, 161 Art 218(a) & (e); 284-288 of the Constitution University of South Africa, 2005; Quashigah and sec 7(1)(a), (e) & (f) of the CHRAJ Act, (n 1 above); Quashigah (n 82 above); 1993 (Act 456). Quansah (n 63 above). 162 CHRAJ http://www.chrajghana.com/?page 155 BT Torto ‘Affirmative action and women’s _id=43 (accessed 24 October 2015). empowerment in Ghana: Challenges to a 163 CHRAJ ‘State of human rights in Ghana’ growing democracy’ (2013) Conflict Trends (2009) http://www.chrajghana.com/wp-con 41; S Bawa ‘Women’s rights and culture in tent/uploads/2012/08/sohr_2009.pdf Africa: A dialogue with global patriarchal (accessed 10 September 2015); CHRAJ traditions’ (2012) 33 Canadian Journal of ‘State of human rights in Ghana’ (2010); Development Studies 90. CHRAJ ‘Gender assessment report’ (2013); 156 Dankwa (n 64 above). CHRAJ ‘State of human rights in Ghana’ 157 EA Ankumah The African Commission on (2013). Human and Peoples' Rights: Practices and 164 Email correspondence (9 October 2015) with procedures (1996). Gloria Agyeman-Duah, Principal Investiga- 158 KO Kuffour The African human rights system: tor, CHRAJ. Origin and evolution (2010). 165 As above. Impact of the African Charter and the Maputo Protocol in selected African states 109
12 State reporting Welfare of the Child and the Protocol on the establishment of the African State reporting is generally the mandate Court on Human and Peoples’ Rights; of the Ministry of Foreign Affairs which and take measures to eradicate all harm- 169 represents Ghana at international and ful practices. As discussed above, regional fora. However, the Ministry of many of the recommendations have Justice which is government’s principal been complied with through legislative legal advisor is usually involved. On and policy reforms. issues relating to specific themes, such as women’s rights under the Maputo Information could not be obtained Protocol, the Ministry of Gender, Chil- on the process of preparing state reports dren and Social Protection plays a presented to the African Commission. significant role in the compilation of The experience of Ghana’s recent report state reports as well as presentation of to the CEDAW Committee, however, reports. indicates that the process commences with a consultative meeting of Minis- Ghana has submitted two state tries, Departments and Agencies reports to the African Commission on (MDAs) and Civil Society Organisa- its obligations pursuant to the African tions (CSOs). A Drafters Committee is Charter. Its initial report upon ratifica- then constituted after which a request is tion of the African Charter was submit- made to various human rights institu- ted to the African Commission in 1993 tions and the judiciary to provide infor- and this was followed by its second peri- mation on their sectors. A Lead odic report in 2001. No other report has Consultant is then engaged to compile been submitted by Ghana since then.166 the report. The draft report is submitted This was brought to the attention of the to a validation workshop to enable Attorney General during the African MDAs, CSOs and development partners Commission’s promotional mission to to discuss and comment on the draft 170 Ghana in 2008.167 Ghana has eight report before it is finalised. overdue state reports.168 The reports were submitted by the Ministry of No evidence of dissemination of Foreign Affairs on behalf of Ghana. concluding observations was found. Information on the delegation that submitted the report could not be 13 Communications obtained. The African Commission recommended that the government of Six communications have so far been Ghana amongst others amend national brought against Ghana.171 Of these, two laws including the Constitution to bring them in line with the African Charter; 169 C Heyns & M Killander (eds) Compendium of improve the conditions of prisons; ratify key human rights documents in the African Union the African Charter on the Rights and (3rd ed, 2007) 170-171. 170 Committee on the Elimination of Discrimi- nation against Women ‘Consideration of reports submitted by state parties under arti- 166 African Commission ‘Report of the cle 18 of the Convention on the Elimination promotion visit to the Republic of Ghana’ of All Forms Discrimination against (2008) para 22. Women: Combined sixth and seventh 167 African Commission (n 166 above) para 58. reports of state parties – Ghana’ 5 February 168 African Commission on Human and 2013 CEDAW/C/GHA/6-7, para 38. Peoples’ Rights ‘State reporting’ http:// 171 Communication 6/88 Dr Kodji Kofi v Ghana; www.achpr.org/states/ (accessed 10 Septem- Communication 4/88 Coordinating Secretary ber 2015). of the Free Citizens Convention v Ghana; 110 Ghana were ruled inadmissible because Ghana application of the criminal law. He also had not yet ratified the African Charter alleged that the High Court’s failure to at the time the communications were uphold his ‘submission of no case’ after submitted;172 one was declared inadmis- the prosecution had closed its case was a sible for non-exhaustion of local reme- violation of his right to be presumed dies;173 one was withdrawn,174 and two innocent until proven guilty. Additional- have been decided on merits.175 In ly, the government had acted in such a Abubakar, the applicant had been held in manner, namely by appointing new prison custody for seven years without judges to the Supreme Court panel hear- trial. He approached the Commission ing his case, that the independence and when he escaped from custody citing impartiality of the judiciary in adjudicat- the fact that he could not return to ing his case had been compromised. Ghana because he would be subject to a This conduct, he argued, was in contra- penalty of six months to two years, vention of the Constitution of Ghana notwithstanding the unlawfulness or and articles 7(1)(b), (c), 7(2) and 26 of otherwise of the original detention. The the African Charter.178 The African applicant alleged that his rights to liber- Commission found Ghana to be in ty of person (article 6), the right to be violation of article 26 of the African tried within a reasonable time (article Charter and called on the state to desist 7(1)(d)) and the right to return to his from any measures which would under- country (article12(1)) had been violated. mine the independence of the courts. It By reason of these events, the African does not appear that these decisions Commission found Ghana in violation have been publicised within Ghana. of articles 6 and 7(1)(d) of the African Neither was information on compliance Charter.176 Louw reported partial available. This is partly because the compliance with the decision in decision in Tsikata was only adopted by 2004.177 The present status of the deci- the African Commission in May 2014. sion could not be obtained. 14 Special mechanisms ‒ In Tsikata, the applicant alleged that Promotional visits of the he had been charged with amongst African Commission others a crime which did not constitute a known offence at the time it was committed, amounting to a retroactive The African Commission undertook a promotional mission to Ghana from 1-5 September 2008.179 The mission was led 171 Communication 93/93 International PEN v by Commissioner Musa Ngary Bitaye, Ghana; Abubakar v Ghana (2000) AHRLR 124 (ACHPR 1996); Communication 221/ then Commissioner responsible for 98 Alfred B Cudjoe v Ghana; Communication human rights promotion in Ghana.180 322/06 Tsatsu Tsikata v Ghana. 172 Communication 6/88 Dr Kodji Kofi v Ghana The delegation met and consulted with and 4/88 Coordinating Secretary of the Free amongst others the Minister of Foreign Citizens Convention v Ghana. 173 Communication 221/98 Alfred B Cudjoe v Affairs, the Commission on Human Ghana. Rights and Administrative Justice, 174 Communication 93/93 International PEN v Ghana. NGOs, the Attorney General, the Chief 175 Abubakar and Tsikata. 176 Abubakar. 177 L Louw ‘An analysis of state compliance 178 Tsikate paras 95-103. with the recommendations of the African 179 African Commission ‘Report of the Commission on Human and Peoples’ Rights’ promotion visit to the Republic of Ghana’ unpublished doctoral thesis, University of (2008). Pretoria, 2004, 59. 180 As above. Impact of the African Charter and the Maputo Protocol in selected African states 111
Justice, the Law Faculty of the Universi- difficulties in exhausting local reme- ty of Ghana, Ghana Journalist Associa- dies.184 Ghana also made the declara- tion, the Ghana Police Service, and tion under article 34(6) of the Protocol Correctional Services.181 The African on the establishment of the African Commission provided an elaborate list Court in 2011.185 Beyond these, it is of recommendations including the need observed that not much has changed to domesticate the African Charter and since the African Commission made other ratified international and regional recommendations to Ghana pursuant to instruments, make the declaration under the promotional mission of 2008. article 34(6) of the Protocol on the Ghana has still not submitted any Establishment of the African Court, further periodic reports on the African submission of overdue state reports, Charter nor the Maputo Protocol. abolition of the death penalty, deconges- Neither have these instruments been tion of prisons, the need to address long domesticated. The Right to Information pre-trial detentions, improved access to Bill has been pending for over a decade; information, training of police officers prison conditions have not changed and in human rights and especially the use the police continue to resort to excessive of force and resourcing the national use of force. human rights institution.182 On women’s rights issues, the African In addition to this, the Special Commission recommended that more Rapporteur on Freedom of Expression women be appointed to senior offices and Access to Information in Africa, within the police service and testing Commissioner Pansy Tlakula, under- female convicts for pregnancy before took an advocacy visit to Ghana from 1- they are sentenced to prison custody.183 2 July 2014. The purpose of the visit was to advocate for the prompt enact- The promotional visit increased ment of the Right to Information Bill awareness about the mandate and activ- which takes into account the African ities of the African Commission, espe- Commission’s Model Law on Access to cially amongst NGOs, and generally Information in Africa, currently before enhanced the visibility of the African parliament.186 The Special Rapporteur Commission in Ghana. The delegation met with leaders of parliament and for instance used the opportunity to Ministers of various Ministries and provide responses to questions raised by received the assurance of Ghana’s NGOs during the visit, pertinent commitment to pass the Right to Infor- amongst which was around the estab- lishment of formal relationships with 184 African Commission (n 179 above) paras 48- NGOs through the granting of observer 56. status, the role of the African Commis- 185 F Viljoen International human rights law in Africa (2012) 427; Ghana’s declaration on sion in the implementation of the Mapu- article 34(6) http://dev.ihrda.org/doc/art_ to Protocol, the legal status of the 34_(6)_dec_ghana/view/ (accessed 5 Octo- ber 2015). findings of the African Commission and 186 African Commission ‘Activity report of Advocate Pansy Tlakula, Special Rapporteur of freedom of expression and access to information in Africa’ presented during the 56th ordinary session of the African Commission, Banjul, The Gambia 21 April- 07 May 2015, paras 8-10 http://www. achpr. 181 As above. org/files/sessions/56th/inter-act-reps /219/ 182 African Commission (n 179 above) para 190. 56os_intersession_report_en.pdf (accessed 183 As above. 5 October 2015). 112 Ghana mation Bill before expiration of the • The work of academics in regularly tenure of the present government’s term highlighting Ghana’s obligations under in 2016.187 Subsequent to the visit, the African Charter and Maputo Proto- col and the need to reform national Ghana’s Parliamentary Select Commit- laws to bring them in conformity with tee on Constitutional, Legal and Parlia- the provisions of these instruments also mentary Affairs recommended revisions needs to be commended in enhancing to ‘problematic’ sections of the bill their impact. based on the African Commission’s • The 41st ordinary session of the Afri- Model Law on Access to Information in can Commission took place in Ghana Africa and submissions by NGOs.188 from 16-30 May 2007. This brought awareness to the African Commission and allowed CSOs who had previously 15 Factors that may impede or complained of lack of funding to attend enhance the impact of the the Commission’s sessions in Banjul to participate. African Charter, the Maputo • Professor Emmanuel Victor Oware Protocol and the African Dankwa served as a member of the Commission African Commission from 1996-2005, serving as Vice-Chair, Chair and as The following factors have enhanced the Special Rapporteur on Prisons and Detention Centres. Prior to his mem- impact of the African Charter, the bership in the African Commission, he Maputo Protocol and the African staunchly advocated for the domestica- Commission: tion of the African Charter in the national laws of Ghana and for law • The courts, especially the Supreme reform to bring various laws in con- Court, have been progressive in their formity with the African Charter.189 application of international human He also served as a Member of the rights instruments, especially the Afri- Committee of Experts which drafted can Charter despite its non-domestica- proposals for the current Constitution tion and on occasion have relied on the of Ghana. This may account for simi- jurisprudence of the African Commis- larities between many of the provisions sion. The progressive interpretation of of the African Charter and the Consti- the ‘non-exclusion’ clause in article tution of Ghana. 33(5) of the Constitution enables use of provisions of the African Charter and On the other hand, many factors have other human rights instruments where impeded the impact of the African Char- the relevant right has not been domesti- ter, Maputo Protocol and African cated in the Constitution. Commission. These include: • Civil society (NGOs, the media, law- yers) have quite extensively used the • Non-domestication of Charter rights, African Charter and the Maputo Proto- while not completely incapacitating col in their programmes and advocacy their use, has hampered their full and activities, though less so in litigation. effective enforcement and consequently This has brought much awareness to impact, especially in human rights liti- the provisions of the African Charter gation. Even though the Supreme and Maputo Protocol as well as put Court has decided that the non-domes- pressure on government to implement tication of the African Charter and these instruments. other international human rights trea- ties does not prevent their use in litiga- 187 As above. tion on human rights and has found a 188 ‘Ghana parliamentary panel praised for violation of the African Charter in at passing RTI Bill’ freedominfo.org 11 Septem- ber 2014 http://www.freedominfo.org/ 2014/09/ghana-parliamentary-panel-praised -passing-rti-bill/ (accessed 5 October 2015). 189 See Dankwa (n 64 above). Impact of the African Charter and the Maputo Protocol in selected African states 113
least one instance, some lawyers are gation in terms of socio-economic still reluctant to use them because they rights has led to less than desired have not been domesticated.190 In impact of these instruments in respect some instances, courts have rejected of the socio-economic rights enshrined human rights claims based on interna- therein. tional human rights instruments on 191 • Limited knowledge of the African grounds of non-domestication. Charter and Maputo Protocol amongst • The uncertainty of the status of inter- judicial officers has also impeded the national law within the Constitution impact of these instruments. has also hampered the impact of inter- • Failure to submit state reports which national human rights instruments. would enable the African Commission Unlike the Constitution of South to comment on progress made and Africa which requires courts to con- loopholes through concluding observa- sider international law in interpreting tions as well as NGO alternative the Constitution, no comparable provi- reports has hampered the impact of the sion exists under the Constitution of African Charter and Maputo Protocol. Ghana. Consequently, use of the Afri- Since Ghana has not been reporting, can Charter and Maputo Protocol in the African Commission has rarely had for instance human rights adjudication the opportunity to assess Ghana’s com- would depend on the industry of the pliance with the African Charter and presiding judge(s) or in some instances Maputo Protocol. NGOs have also not where parties before the court invoke had the opportunity to submit alterna- and rely on these instruments as part of tive reports, usually done through a their case. consultative process amongst NGO • As discussed earlier, international coalitions which creates greater aware- human rights law is taught as an ness. elective subject in the majority of law • ‘Gender inequality is institutionalised faculties in Ghana, but is altogether in patriarchal traditional traditions’ absent in the curriculum of the Ghana and attitudes continue to impede the School of Law. This state of affairs effective realisation of women’s means that not all lawyers are aware of rights.194 These coupled with the rather the African Charter and Maputo ‘gentle person’ and ‘give it to God’ atti- Protocol or how to use them in tudes of the average Ghanaian means litigation. This may well be the reason that even though elaborate rights are for the rather abysmal use of the guaranteed many ‘Ghanaians still find African Charter and Maputo Protocol it difficult to demand accountability in arguments of lawyers before the and transparency from government courts. institutions’, resulting in widespread • In line with the immediately preceding tolerance and endurance of human point, the implementation of socio-eco- rights violations.195 These have nomic rights have especially suffered become frontiers of resistance which because ‘the legal profession in Ghana impede the impact of the African Char- has not developed the aptitude of fash- ter generally and more specifically, the ioning personal rights in terms of eco- Maputo Protocol. nomic, social and cultural rights’.192 The courts have therefore not devel- oped expertise in adjudicating socio- economic rights cases.193 Limited liti-
190 Anyidoho (n 64 above) 12 191 In Issa Iddi Abass & others v Accra Metropolitan Assembly and Another (unreported) argu- ments on the right to housing based on inter- national human rights instruments were rejected by the High Court. 194 Bawa (n 155 above) 102. 192 Quashigah (n 82 above) 26. 195 See Ghana’s second periodic report to the 193 Quashigah (n 82 above) 26-28. African Commission (2001) 37. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN KENYA
Saoyo Tabitha Griffith* Paul Ogendi**
1Introduction the previous Constitution where no such provisions existed.4 The Constitution of the Republic of Kenya (2010 Constitution) provides that The previous Constitution also did ‘the general rules of international law not provide for the manner of ratifica- shall form part of the laws of Kenya’1 tion of international human rights and further expressly states that, ‘any instruments. The legislature had no treaty or convention ratified by Kenya express role in regard to signing and shall form part of the laws of Kenya ratifying international treaties. In prac- under this Constitution’.2 To this end, tice, the responsibility of signing and the Kenya National Commission on ratifying international treaties fell into the hands of the executive,5 with the Human Rights (KNCHR) is now the 6 ‘principal organ of the state in ensuring Cabinet leading the process. Generally, compliance with obligations under trea- Kenya’s treaty signing and ratification ties and conventions relating to human history has been ‘haphazard’ with no rights’.3 This is a notable change from 4 Kenya adopted its first Constitution in 1963 upon independence which was then amended numerous times through Constitu- tion of Kenya (Amendment) Acts 1964-2008. See N Kamunde ‘Kenya’s constitutional his- tory’ 2014 http://www.4cmr.group.cam.ac. uk/filecab/redd-lawproject/20140821%20 BP%20Kenyas%20Constitutional%20His- tory.pdf (accessed 16 November 2015). 5 Constitution of Kenya Review Commission (CKRC) ‘The Final Report of the Constitution of Kenya Review Commission’ * LLM HRDA (Pretoria), Sexual and (Final Draft) approved for issue at the 95th Reproductive Health Rights Programme Plenary Meeting of the Constitution of Manager, Kenya Legal and Ethical Issues Kenya Review Commission held on 10 Network on HIV&AIDS, Nairobi. February 2005 (2005) 150 states that ‘The ** LLM HRDA (Pretoria), Researcher and doc- conduct of international law issues is deemed toral candidate, Centre for Human Rights, and implied to fall under the powers University of Pretoria. This work essentially accorded to the President under sec 23 of the builds on V Lando, W Kaguongo & C Bosire Constitution. In addition, the powers and ‘Kenya’ in Centre for Human Rights Impact of functions of the legislature do not expressly the African Charter and the Women’s Protocol in provide for domestication of international selected African states (2012) 65-78. law but again it is implied as one of the 1 Art 2(5). legislative powers’. 2 Art 2(6). 6 Interview with Senior State Counsel, State 3 Art 59(2). Law Office, Kenya, 26 August 2011.
115 116 Kenya clear answers as to why some treaties institutions including the National were signed or ratified and others not.7 Gender and Equality Commission and the KNCHR. Under the previous Constitution, the Office of the Attorney General was 2 Ratification of the African in charge of legal compliance with all Charter and Maputo Protocol international instruments that Kenya had signed and ratified.8 This aspect Kenya ratified the African Charter on was however clarified under the 2010 21 January 1992 and deposited the Constitution with KNCHR now taking instrument of ratification on 10 Febru- charge as the principal organ of the state ary 1992.12 Discussions before signature in ensuring compliance with obligations and ratification took place at cabinet under treaties and conventions relating meetings, records of which meetings to human rights.9 The process of signa- could not be accessed during this study. ture and ratification is guided by the Treaty Making and Ratification Act that Kenya signed the Maputo Protocol was enacted in December 2012. This on 17 December 2003 and ratified it on Act requires Parliament to debate and 13 October 2010, thereby becoming the approve treaties before Kenya ratifies 10 29th state party to the Maputo Proto- any international treaty. The 2010 col.13 Unlike the African Charter, Constitution clears doubts on the posi- parliamentary discussions took place on tion of international law in Kenya and the ratification of the Protocol. On cases discussed below show a change in 11 13 April 2005, the Minister in charge of approach by Kenyan courts. Gender Affairs stated that Kenya had delayed ratification of the Maputo It is noteworthy that as a result of Protocol despite signing it in 2003 the 2010 Constitution, civil, political, because it had certain concerns regard- economic, social and cultural rights are ing some of its provisions.14 The Minis- all enunciated in the Constitution and ter noted that while article 10(3) of the therefore justiciable pursuant to articles Protocol called on the Kenyan govern- 21(2) and 43. Women’s rights are enact- ment to significantly reduce its military ed in a wide variety of laws that prohibit budget for purposes of facilitating violations such as domestic violence, women’s development, the government sexual violence, female genital mutila- was uncomfortable with this provision tion and trafficking in persons, amongst others. Furthermore, women’s rights in Kenya are protected through a variety of 12 African Union ‘List of Countries which have signed, ratified/ acceded to the African Charter on Human and Peoples’ Rights’ 7 CKRC (n 5 above) 151. http://www.africa-union.org/root/au/Doc 8 The Attorney General is the legal advisor of uments/Treaties/List/African%20Charter% government and thus advises the government 20on%20Human%20and%20Peoples%20Ri on Kenya’s compliance with treaties that it ghts.pdf (accessed 20 September 2015). has ratified. 13 African Union ‘List of Countries which have 9 Art 59(2)(g). signed, ratified/ acceded to the Protocol to 10 Sec 8(4) of the Treaty Making and the African Charter on Human and Peoples’ Ratification Act 45 of 2012 stipulates that the Rights on the Rights of Women in Africa’ National Assembly may approve the http://www.africa-union.org/root/au/Doc ratification of a treaty with or without uments/Treaties/List/Protocol%20on%20 reservations to specific provisions of the the%20Rights%20of%20Women.pdf treaty. (accessed 20 September 2015). Correct link 11 David Njoroge Macharia v Republic Court of 14 Parliament of the Republic of Kenya Appeal at Nairobi Criminal Appeal 497 of ‘National Assembly Official Report’ 2007. (Wednesday 13 April 2005) 644-646. Impact of the African Charter and the Maputo Protocol in selected African states 117 and especially the exact meaning and with the National Gender and Equality impact of the term ‘significant’ as used Commission (NGEC), KNCHR and in the Protocol. Secondly, the Minister select civil society organisations work- noted that article 14(1)(b) of the Maputo ing on human rights issues. As a govern- Protocol gave women a choice to decide ment institution, NGEC is the focal whether or not to have children and this point for the Maputo Protocol and has had the potential of encouraging abor- the obligation of representing the state tion. Nevertheless, the government and responding to concerns raised bowed to pressure from lobby groups during state reporting to the African and ratified the Protocol on 13 October Commission, particularly on issues of 2010.15 women’s equality and freedom from discrimination.17 3 Government Focal Point 4 Domestication Article 152(1)(d) of the 2010 Constitu- tion limits the number of cabinet secre- The African Charter and the Maputo taries to 22. This is a shift from the Protocol are now part of Kenyan law previous regime which provided for a under the 2010 Constitution.18 Howev- cabinet of approximately 44 ministers.16 er, the Constitution remains the As a result, several ministries under the supreme law.19 The Constitution then 2007-2012 government were contains economic, social and cultural absorbed as departments post the 2010 rights in the Bill of Rights which are Constitution. In the circumstances, the justiciable,20 thus placing Kenya then Ministry of Justice, National Cohe- amongst the few African countries that sion and Constitutional Affairs that was have expressly recognised socio- previously responsible for legal policy, economic rights in their Bills of policy on administration of justice and Rights.21 In the case of Satrose Ayuma,22 constitutional matters was absorbed as a petitioners relied on the Bill of Rights in department under the Office of the the 2010 Constitution, the African Char- Attorney General (AG). Whereas ter and the Ogoniland case to argue KNCHR is constitutionally mandated to against the eviction of squatters living ensure compliance with obligations on land belonging to the then Kenya under treaties and conventions, the Department of Justice under the AG’s 17 Sec 8(n) of National Gender and Equality Act states the function of NGEC as office is still responsible for reporting to producing periodic reports for national, the African Commission as well as other regional and international reporting on progress in the realisation of equality and UN treaty monitoring bodies. These freedom from discrimination for these reports are generated in collaboration interest groups. 18 Art 2(6) Constitution of Kenya. 19 Art 2(3) provides that ‘the validity or legality 15 African Union (n 13 above). The ratification of this constitution is not subject to challenge of the Maputo Protocol by Kenya coincided by or before any court or other state organ’ with the ‘Africa Women’s decade’ which was making it superior to international law in the organised by the African Union and was domestic legal system of Kenya. hosted in Nairobi. FIDH ‘Kenya: Concrete 20 Art 43(1) provides for the right to health, steps required to demonstrate government’s housing, food, social security and education. will to respect women’s rights’ 11 October 21 South Africa and Ghana remain some of the 2010 http://www.fidh.org/Kenya-Concrete- few countries that recognise socio-economic steps-required-to-demonstrate (accessed rights within their constitutions. See 14 August 2011). JC Mubanguzi ‘Constitutional protection of 16 http://www.businessdailyafrica.com/-/539 socio-economic rights’ (2006) 2 African 546/1751972/-/qng29b/-/index.html Journal of Legal Studies 1. (accessed 24 September 2015). 22 Constitutional Petition 65 of 2010. 118 Kenya
Railways enterprise without proper rights contained in the African Charter guidelines and alternative areas of settle- and the Maputo Protocol.29 ment.23 Similarly, in the ongoing case of KELIN & Others v Médecins Sans Fron- Today, the African Charter and the tières and Others, the petitioners have Maputo Protocol continue to influence cited the provisions of article 43(1)(a) of domestic legislation, including the the Constitution, the International recently enacted Marriage Act 2014, Covenant on Economic, Social and Matrimonial Property Act 2014, Kenya Cultural Rights, the African Charter and National Commission of Human Rights the Maputo Protocol to argue against Act 2011, National Commission on the forced and coerced sterilisation of Gender and Equality Act 2011 and the women living with HIV.24 Protection against Domestic Violence Act 2015, which borrow from provi- The adoption of the 2010 Constitu- sions of the African Charter, the Mapu- tion ended more than two decades of to Protocol and the Convention on the struggle for constitutional reform. The Elimination of all forms of Discrimina- African Charter and other human rights tion against Women (CEDAW).30 instruments formed a basis for demands 25 for political and constitutional reform. 5 Legislative reform or adoption In the process, important amendments to the previous Constitution were made, Under the previous Constitution, the some of which implemented the African cabinet led the process of implementa- Charter provisions. These include intro- tion of international treaties. A compati- 26 duction of multi-party politics in 1992, bility study would be carried out and gender considerations in nominating discussed in cabinet,31 and the relevant 27 members of parliament, and the addi- ministry would initiate drafting of the tion of ‘sex’ as one of the grounds for relevant legislation. In the constitution 28 prohibition of discrimination. Subse- review process, the African Charter quently, even as the country was in featured prominently in discussions on search of a new constitutional dispensa- the Bill of Rights; for example, article 29 tion, much legislation was enacted that of the African Charter was highlighted directly or indirectly recognised the as an important provision in regard to the need to preserve family cultural values such as respect for parents.32
23 The matter was determined by the Court which held that the First Respondent had violated the Petitioners’ right to accessible and adequate housing contrary to art 43 of the Constitution. See http://kenyalaw.org/ 29 Statutes such as the Childrens Act make caselaw/cases/view/90359/ (accessed 25 direct reference to the UN Convention on the September 2015). Rights of the Child. Sec 7(2) of the Act 24 Constitutional Petition 605 of 2014. See also provides that: ‘Every child shall be entitled to Muigai vs John Bosco Kariuki & another (2014) free basic education which shall be where the Court of Appeal relied on compulsory in accordance with Art 28 of the international instruments that prohibit United Nations Convention on the Rights of discrimination against women to wit, the the Child’. UDHR, CESCR, CEDAW and ICCPR. 30 The Protection against Domestic Violence 25 GK Kuria ‘The rule of law in Kenya and Act 2 of 2015 https://ke.boell.org/sites/def status of human rights’ (1991) 16 Yale Journal ault/files/uploads/2015/08/protectionagain of International Law 217. stdomesticviolenceact_2015_1.pdf (accessed 26 Sec 1A of the former Constitution (Act 5 of 25 September 2015). 1969). 31 See interview with Senior State Council (n 6 27 Sec 33(3) of the former Constitution. above). 28 Sec 82(3) of the former Constitution. 32 CKRC (n 5 above) 91. Impact of the African Charter and the Maputo Protocol in selected African states 119
Legislative reform has typically of persons living with HIV/ AIDS.40 taken the form of either piece-meal With regard to the right to a clean envi- changes to national legislation through ronment, the Environmental Co-ordina- amendments33 or the adoption of new tion and Management Act (EMCA) legislation. The African Charter was which was enacted in 199941 was an used as the basis for repealing the provi- important step for economic, social and sion on corporal punishment from the cultural development.42 The Act Kenyan Penal Code in 2003.34 Many allowed wide access to courts for the pieces of legislation that cover a wide enforcement of environmental rights spectrum of rights have been adopted which was initially restricted and over the years. These include the Sexual narrowly construed. Offences Act, 2006 which aims at improving the protection of victims of Additionally, other recently enacted sexual offences.35 Amongst the new pieces of legislation that have been measures introduced was the compre- adopted to give effect to various articles hensive definition of the offence of rape of the African Charter and the Maputo and simplification of several rules of Protocol include the Protection Against evidence to better protect victims.36 Domestic Violence Act 2015, the Coun- ter Trafficking in Persons Act 2010 43 Kenya also established KNCHR in and the Prohibition of Female Genital 2003 for more effective realisation of Mutilation 201144 which speak to arti- human rights.37 While Kenya only rati- cles 4(2)(a), (g) and 5(b) of the Maputo fied the Maputo Protocol in 2010, it had Protocol. already established the National Commission on Gender and Develop- 6 Policy reform or formulation ment in 2003, meant to support the mainstreaming of gender in issues of As with legislative reform, a number of 38 national development. In 2006, Parlia- policies have been adopted which ment also enacted the HIV and AIDS impact on different rights covered by the 39 Prevention and Control Act which African Charter and the Maputo Proto- provides for a number of safeguards and col. Kenya has formulated a host of measures aimed at protecting the rights policies on a wide variety of issues that implicitly and explicitly touch on both
33 For instance, the Penal Code has been amended many times to delete provisions 40 TO Ojienda ‘HIV/AIDS and the labour that go against international human rights sector: Examining the role of law in standards. protecting the HIV positive worker in Kenya’ 34 Parliament of the Republic of Kenya Unpublished thesis, University of South ‘National Assembly Official Report’ (1 April Africa, 2010 128-132. 2003) 709. 41 Act 8 of 1999. 35 Act 3 of 2006. 42 Preamble to the EMCA. 36 Sec 3 of the Sexual Offences Act. 43 Counter-Trafficiking in Persons Act8 of 2010 37 Act 9 of 2002. Art 59(4) of the Constitution http://kenyalaw.org/kl/fileadmin/pdfdown of Kenya transformed the KNCHR into a loads/Acts/Counter-TraffickinginPersons constitutional body with an enhanced Act_No8of2010.pdf (accessed 24 September human rights mandate. See www.knchr.org 2015). for more information on the activities of the 44 Prohibition of Female Genital Mutilation Kenya National Commission on Human Act 32 of 2011 http://kenyalaw.org/kl/file Rights. admin/pdfdownloads/Acts/Prohibitionof 38 Sec 6(2)(j). FemaleGenitalMutilationAct_No32of2011.p 39 Act 13 of 2006. df (accessed 24 September 2015). 120 Kenya the African Charter and the Maputo provision of adequate, affordable and Protocol.45 quality housing in sustainable human settlements. There is also, currently, a There is the National Policy for the Draft National Prevention of Slums Prevention and Control of HIV/AIDS Upgrading Policy which provides for and Sexually Transmitted Infections better housing particularly for youth and 46 (STI) which seeks to implement most women.49 Moreover, there are several of the matters covered under the HIV government policies that have been Prevention and Control Act of 2006. adopted to implicitly give effect to the Further, Kenya adopted a Land Reform provisions of the Maputo Protocol. Policy in 2007. This Policy seeks to These include the National Guidelines address critical issues such as communal on the Management of Sexual Violence, land ownership schemes like those prac- 2014 and the Adolescent Reproductive tised by most indigenous communi- Health and Development Policy, 2015. 47 ties. The latter aims to enhance the sexual and reproductive health and rights Additionally, in a creative move, status of adolescents in Kenya and the Ministry of Public Health and Sani- contributes towards realisation of their tation used the report of the African full potential in national development. Commission’s Working Group on Indigenous Populations and Communi- In addition to the above, there is 48 ties to develop strategies for public also the Kenya Health Policy (2012- health needs to marginalised and vulner- 2030) which aims at ‘attaining the high- able groups in Kenya. In pursuit of this est possible health standards in a policy, the Ministry set aside funds manner responsive to the population (Health Sector Services Funds) to needs’. The Policy seeks to achieve this support community health projects in through supporting provision of equita- arid and semi-arid areas where some of ble, affordable and quality health and the groups identified by the African related services at the highest attainable Commission Working Group are found. standards to all Kenyans.
In line with the African Charter, 7 Court judgments Kenya has also enacted a National Housing Policy which facilitates the Kenyan courts were initially reluctant to apply international law instruments 45 Key amongst the Policies include: the 50 National Plan of Action against Sexual directly to relevant domestic matters. Exploitation of Children in Kenya 2013- However, even under the previous 2017; the Kenya National Health Policy and Guidelines; the Child Survival Development constitutional regime that was strongly Strategy; the National Reproductive Health dualist, courts gradually softened their Policy; the National Disability Policy; the Draft Special Needs Education Policy; the approach and are increasingly making Draft National Social Protection Policy; and direct reference to international and the Draft National Policy on National Values and principles of Governance, amongst regional human rights instruments to many others. which Kenya is party.51 For instance, in 46 See http://nascop.or.ke/is/ (accessed 14 August 2011). 47 Ministry of Lands ‘National Land Policy’ (Land Policy Secretariat) (May 2007). 49 Kenya’s Combined 8t-11th Periodic Report 48 African Commission ‘Report of the African under the African Charter November 2014, Commission on Human and Peoples’ Rights para 117. Working Group of Experts on Indigenous 50 Okunda v Republic [1970] EA 453. Populations/Communities’. 51 (2005) AHRLR 107 (KeCA 2005). Impact of the African Charter and the Maputo Protocol in selected African states 121 the celebrated case of Rono v Rono, the The Court of Appeal has noted that Court of Appeal stated that African while Kenya has had a strong dualist customary succession laws that disinher- past, the position may have changed ited women contravened article 18 of with the passing of the 2010 Constitu- the African Charter which Kenya volun- tion.60 In the case of David Macharia v R, tarily ratified without any reservation.52 the court noted the fact that the African The judge noted that Kenyan domestic Charter has been ratified by 53 African law was insufficient in regard to this states, which strengthens its place and aspect of discrimination of women and legitimacy in domestic legal systems of thus international human rights instru- states party to this Charter.61 The court ments that Kenya had ratified were also made reference to the guidelines on necessary.53 In a later case, Re Andrew fair trial adopted by the African Musyoka (Deceased)54 the judge referred Commission62 and indicated that they to the precedent that was set in Rono v were an authoritative interpretation of Rono and used the African Charter and Kenya’s obligations under the African other human rights instruments to Charter.63 protect the rights of daughters to inherit their father’s property and held that Post the enactment of the 2010 disinheriting daughters is contrary to Constitution, Kenyan courts have made article 18 of the African Charter and a series of declarations, rulings and other human rights instruments that judgments that have both explicitly and Kenya has ratified that protect and implicitly referred to the provisions of guard women’s rights.55 the Maputo Protocol. Indeed, the courts have pronounced themselves on a wide In Waweru v Republic,56 the court array of rights including the appoint- invoked article 24 of the African Charter ment of women to public office under and stated that the ministries in charge the Two-Thirds Gender Rule,64 protec- of local government and water affairs tion against violence, property inher- were obligated to construct a sewerage itance and the prohibition against treatment plant to prevent environmen- tal pollution.57 In Martha Karua v Radio Africa Ltd,58 the court noted that articles 11 and 12(2) of the African Charter do not allow derogation from the right to freedom of expression whereas the then 60 David Njoroge Macharia v Republic Court of Appeal at Nairobi Criminal Appeal 497 of Constitution of Kenya allowed for dero- 2007. gation. The court noted that any new 61 As above. 62 African Commission on Human and constitutional dispensation should take Peoples' Rights ‘Principles and guidelines on into account the non-derogable nature the rights to a fair trial and legal assistance in 59 Africa’ http://www.achpr.org/instruments/ of this freedom. principles-guidelines-right-fair-trial/ (accessed 10 October 2011). 63 As above. 64 The Constitution espouses the rights of 52 As above. women as being equal in law to men, and 53 Rono (n 51 above). entitled to enjoy equal opportunities. Article 54 eKLR (2005). 27 of the Constitution obligates the 55 As above. government to develop laws, including 56 (2007) AHRLR 149 (KeHC 2006). affirmative action programmes and policies 57 As above. to address the past discrimination that 58 High Court at Nairobi (Nairobi Law Courts) women have faced by ensuring that, not Civil Suit 288 of 2004. more than two-thirds of elective or 59 As above. appointive positions shall be of the same sex. 122 Kenya discrimination on the basis on HIV.65 pay hospital fees and who were subject- ed to physical, mental, and verbal The recent case of MNN v Attorney abuse.67 In its decision, the Court noted General of Kenya, brought on behalf of a that the two women were unlawfully woman who was mistreated in a private detained and suffered numerous human Kenyan hospital brought to light the rights violations, including their rights severity of the harm suffered by women to liberty and dignity. The ruling also in Kenyan health facilities. MNN’s acknowledged that they were discrimi- story revealed the weaknesses of the nated against on the basis of their socio- accountability mechanisms that are economic status and gender. The Court meant to protect women from such has ordered the Nairobi County govern- abuse as well as provide remedies when ment to pay reparations to both women rights violations occur. The MNN case is and all legal fees.68 one of the first reproductive rights cases to be brought before the Kenyan High In Richard Muasya v AG, the peti- Court and highlights the state’s failure tioner relied on the non-discrimination to live up to its legal obligations under provisions of the African Charter to both domestic law and regional and fortify the argument that the constitu- international human rights standards. tional provisions on non-discrimination With this case, the High Court has an were also applicable to intersex persons opportunity to demand stronger legal in Kenya.69 Therefore, by and large, the standards on female genital mutilation, new constitutional dispensation has to address the systemic accountability shown signs of embracing the applica- issues that underlie rights violations in tion of international human rights healthcare facilities and to affirm instruments in the resolution of disputes Kenya’s obligation to implement inter- otherwise classified as national to which national human rights law.66 domestic laws should exclusively apply. Besides the African Charter, key Similarly, in September 2015, the amongst the international instruments High Court of Kenya ordered the Minis- frequently cited by the courts include try of Health to end the discrimination the ICCPR, ICESCR and the Universal and abuse experienced by women in Declaration of Human Rights. public maternity hospitals and provide financial compensation for two women who were illegally detained at Pumwani Maternity Hospital for their inability to
67 http://www.reproductiverights.org/pressroo 65 See also FIDA Kenya & 5 Others v The Attorney m/crr-case-on-unlawful-detention-of-women General and the Judicial Service Commission -in-maternity-hospitals-in-the-high-court-of- Petition 102 of 2011; VMK v CUEA (2013) kenya (accessed on 28 September 2015) eKLR; and CK and 11 Others v The Correct link Commissioner of Police/Inspector General of the 68 The Center for Reproductive Rights filed this National Police Service and 2 Others Petition 10 case in December 2012 to hold the Ministry of 2012. of Health accountable for allowing rampant 66 This case had been instituted by the detention and abuse of women in health care Federation of Women Lawyers (Kenya), settings. with the Centre for Reproductive Health 69 High Court Petition 705 of 2007. The Court applying to be enjoined as Amicus Curiae. held that the petitioner had been subjected to To date, the matter is yet to proceed. Center inhuman and degrading treatment under the for Reproductive Rights ‘MNN v Attorney Constitution and article 5 of the UDHR and General of Kenya’ http://www.reproductive awarded damages of 500 000 Kenyan rights.org/node/2435 (accessed 28 Septem- Shillings for the inhuman and degrading ber 2015). treatment he endured. Impact of the African Charter and the Maputo Protocol in selected African states 123
8 Awareness and use by civil become increasingly aware of the Proto- 71 society col as a litigation tool. Currently, there are 20 NGOs that Most national human rights NGOs are have observer status with the African aware of the African Charter and use it Commission in Kenya alone.72 in their work alongside other interna- tional and regional human rights instru- ments and domestic law. Depending on 9 Incorporation in law school their exact thematic focus, these NGOs education and use by lawyers73 will use the African Charter in advoca- cy, public education, policy review and There are about 13 law schools in 70 litigation. However, it is important to Kenya.74 Human rights law is taught in note that in most cases, the first point of law schools at different levels. At the reference is the 2010 Constitution. undergraduate level, human rights law Other international and regional instru- is taught as part of the Constitutional ments are used to augment their consti- Law Module with a specific focus on tution-based arguments. It is only in the Bill of Rights. In the upper years of instances where the Constitution is defi- undergraduate study, specifically the cient that direct reference is made to the third and fourth years of study, human African Charter and other international rights law is taught as an elective unit instruments. However, taking cogni- for one semester. It is also taught as part sance of article 2(5) of the 2010 Consti- of Public International Law but not in tution, it is clear that the African considerable depth. In Jomo Kenyatta Charter now forms part of Kenyan law. University of Agriculture and Technolo- It is, therefore, important to ensure that gy, international human rights law is there is increased awareness of the new still taught together with international status of the African Charter as part of humanitarian law. In Moi University, Kenyan law and the need to refer to it in international human rights law is taught the same manner as one would refer to in the gender studies module offered in any domestic legislation. It is notewor- the third year. This course serves as an thy that human rights institutions such introduction to the basic concepts of as Equality Now have endeavoured international human rights. At this over the years to continuously engage stage, the main areas of focus are the the bar and the bench on use of the Maputo Protocol and have aggressively 71 SOAWR ‘Protocol watch’ http://www. led a coalition known as Solidarity for soawr.org/content/protocol-watch (accessed 28 September 2015). African Women’s Rights (SOAWR) 72 African Commission on Human and that has tasked African governments not Peoples’ Rights ‘NGOs with observer status’ http://www.achpr.org/network/ngo/ only to ratify but also to implement the (accessed 16 November 2015). Protocol. Through such sensitisation, 73 Interviews with Lecturers at Catholic University, Moi University, University of more civil society organisations have Nairobi, Riara Law School, Kabarak University Law School. 74 These include three campuses in Nairobi, Kisumu and Mombasa for the University of Nairobi, Kenyatta University, Strathmore University, Riara University, Kisii University College, Jomo Kenyatta University of Agriculture and Technology, Mount Kenya 70 Interview with Davis Malombe, Deputy University, Catholic University of East executive Director, Kenya Human Rights Africa, African Nazarene University, Commission (KHRC), 12 September 2011. Egerton University and Kabarak University. 124 Kenya
UN and the African human rights 10 National human rights systems. Other regional systems such as institutions (NHRIs) the Inter-American and European 75 systems are not delved into in detail. KNCHR is an independent and autono- However, students at this level are well mous institution created under article 59 able to appreciate the concept of human of the Constitution and the Kenya rights and the available structures and National Commission on Human mechanisms for the protection and Rights Act, 2011 to promote and protect promotion of human rights at the human rights in Kenya. KNCHR takes domestic, regional and international the view that human rights are universal levels. It is probably at the post-graduate and indivisible and hence seeks to advo- level that human rights law is most cate human rights principles in line with extensively taught and in more detail. international and regional standards in all aspects of its work on transitional At the University of Nairobi, a justice, political accountability, public centre for human rights and peace stud- education on human rights, compliance ies was established in September 2012 with international obligations, minori- to, amongst other things, teach a multi- ties and marginalised groups, culture disciplinary course in human rights and human rights, business and human particularly at the postgraduate level. rights and legal services. Public interest lawyers are generally Under its compliance and interna- aware of the African Charter provisions tional obligation work, and in line with and use it to advance their human rights its functions as provided for under arti- arguments. However, even lawyers who cle 8(f) of the KNCHR Act, 2011, do engage in human rights legal practice KNCHR specifically: works in partner- rarely interact with the African Charter ship with government to ensure timely and would thus not use it in their legal reporting and dissemination of conclud- arguments.76 However, in the Satrose ing observations by the various commit- ,77 the petitioners’ advocates Ayuma tee bodies; builds the capacity of relied on the African Charter and the Kenyan civil society to conduct their case to argue against the evic- Ogoni land own monitoring and prepare shadow tion of squatters living in land belonging reports; and prepares and submits alter- to the former Kenya Railways without native reports to guide the work of trea- proper eviction guidelines and the provi- ty body committees. Also, KNCHR’s sion of alternative areas of settlement. Strategic Plan for the years 2015-2018 integrates both international and region- al human rights law throughout the 75 From the consultations of different lecturers work of the KNCHR.78 In this regard, and author’s own experience as a former student of law in Kenya, it appears that the African Charter and to some extent, besides what is provided for under the syllabus, there is a wide discretion for them to define the scope of their teaching in this area. In this regard, some teachers will focus on Maputo Protocol specifically and others may mention it in passing. 76 See interview with John Chigiti, Advocate and Public Interest Lawyer, 26 August 2011. 77 Satrose Ayuma and 11 Others v The Registered 78 See the KNCHR ‘Strategic Plan 2015-2018’ Trustees of the Kenya Railways Staff Retirement http://www.knchr.org/Portals/0/Strategic Scheme and 2 Others Constitutional Petition Reports/Strategic%20Plan%202015-2018. 65 of 2010 pdf (accessed 14 September 2015). Impact of the African Charter and the Maputo Protocol in selected African states 125 the Maputo Protocol79 are useful refer- 11 Academic writing on the ence points in the activities of the African Charter and Maputo 80 KNCHR. Protocol KNCHR also plays a leading role A survey of writing by Kenyan academ- collaborating with regional human ics leads to the conclusion that there is rights institutions including the African not much reference to the African Char- Commission and the African Court. ter or the Maputo Protocol. This may be KNCHR applied for and was granted attributed to the relatively limited affiliate status in 2004. In June 2013, it academic writing compared to say a accepted an invitation from the African country like South Africa which has Commission to serve as a focal point to many well-respected legal journals. the Working Group on Indigenous Kenya lacks long-standing legal Populations/Communities in Africa. academic journals even from the more Similarly, in July 2013, it hosted a dele- established faculties of law such as the gation from the African Court at its University of Nairobi. Nevertheless, a premises. few academics have discussed continen- Equally important in this category is tal human rights instruments in depth, NGEC, which is established pursuant to but those have presented a positive article 59 of the Constitution and the perception of its usefulness in alleviating National Gender and Equality Commis- the human rights problems faced by sion Act, 2011.81 It derives its mandate Kenya. under articles 59, 27, 43 and Chapter 15 Muthoni Wanyeki, writing in the of the Constitution of Kenya as well as East African newspaper, expresses section 8 of the NGEC Act. Article 8(c) disappointment that Kenya withdrew its provides that the NGEC shall act offer to host the 50th ordinary session of as the principal organ of the state in the African Commission celebrating 30 ensuring compliance with all treaties and years of the African Charter in October conventions ratified by Kenya relating to 2011.82 She describes the African Char- issues of equality and freedom from ter as ‘a seminal instrument for Africa as discrimination and relating to special a whole’ that has dispelled the notion interest groups including minorities and marginalised persons, women, persons that human rights are culturally relative with disabilities and children. not universal, that human rights are divisible, and that human rights can only be claimed by individuals rather than collectives. She lauds the use of the African Charter by the African Commis- sion for amongst other things ensuring that the AU does not block the referral of the Darfur situation by the UN Secu- 79 The main reason could be that issues relating rity Council to the International Crimi- to women are dealt with primarily at the National Gender and Equality Commission (NGEC) from mainly an equality and freedom from discrimination perspective. 82 ‘Kenya won’t host human rights summit – 80 Interview with KNCHR Officers, 17 August What a pity’ The East African 14 August 2011 2011. See also the KNCHR website http://www.theeastafrican.co.ke/OpEd/co www.knchr.org (accessed 14 September mment/Kenya+wont+host+human+rights 2015). +summit+what+a+pity/-/434750/1218724 81 Cap 15 Laws of Kenya. /-/12aw2hs/-/ (accessed 15 August 2011). 126 Kenya nal Court. She also considers it a to contest for office, and safeguarding positive aspect being the African other rights that support the exercise of Commission’s numerous responses to democracy, rule of law and good individual complaints, the fact that governance.86 The failure in protecting states have generally not implemented this right has been suggested as a factor the recommendations notwithstanding. which led to the violence experienced in On the whole, she expresses positive Kenya in the aftermath of the 2007 elec- views about the African Charter and the tions. Maputo Protocol, although states’ compliance record with the instruments In recent publications, more views has been wanting. are being proffered with regards to the African Charter and the Maputo Proto- The African Charter has been col. Orago, for instance, argues that in invoked as a source of inspiration for order for Kenya to be accountable for its African leadership as leaders seek to human rights obligations under interna- find a solution to the prevailing drought tional law, domestic laws should be in the Horn of Africa region.83 In light subordinate to international law.87 The of the post-election violence experienced international law in this part also in Kenya in 2007-2008, the right to includes the African Charter. participate in the government of one’s country provided in the African Charter The right to housing under the Afri- has been examined.84 Mbondenyi’s can Charter was also revisited in a analysis of this right in the African recent publication by Juma. According Charter highlights a gap in the scope of to the publication, the articulation of the the provision as enshrined in this Char- right to housing, which is not expressly ter in that the right is recognised in a in the Charter, in SERAC v Nigeria, was superficial way that does not expressly only possible as a result of the notion of 88 guarantee the holding of periodic and the interdependence of human rights. genuine elections, a striking omission For him, the express provision in the given the plague of poor governance Maputo Protocol of the right to housing that afflicts many states on the conti- means that it is more critical for the nent.85 The survey of the African protection of vulnerable groups includ- 89 Commission’s jurisprudence on the ing women. What is not clear howev- right illustrates that simply holding elec- er is whether the implied right under the tions is not enough, the right to partici- African Charter and the express provi- pation in governance involves the sions under the Maputo Protocol means conduct of elections without exclusion- different obligations for the state, with ary bars often intended to prevent politi- vulnerable groups being expressly cal opponents from exercising their right favoured.
83 ‘East Africa’s drought response – Union members must arise’ Pambazuka News 86 Mbondenyi (n 84 above) 190. 4 August 2011 http://www.pambazuka.org/ 87 NS Orago ‘The 2010 Kenyan Constitution en/category/comment/75413 (accessed 15 and the hierarchical place of international August 2011). law in Kenyan domestic legal system: A 84 MK Mbondenyi ‘The right to participate in comparative perspective’ (2013) 13 African the government of one’s country: An Human Rights Law Journal 415 440. analysis of article 13 of the African Charter 88 L Juma ‘Nothing but a mass of debris: Urban on Human and Peoples’ Rights in light of evictions and the right of access to adequate Kenya’s 2007 political crisis’ (2009) 9 African housing in Kenya’ (2012) 12 African Human Human Rights Law Journal 183. Rights Law Journal 470 480. 85 Mbondenyi (n 84 above) 187. 89 Juma (n 88 above) 483. Impact of the African Charter and the Maputo Protocol in selected African states 127
On the issue of derogation, Ambani 12 State reporting and Mbondenyi have observed that the Kenyan Constitution may be incompati- The Treaty Making and Ratification ble with international law and specifical- Act94 provides in section 16: ly the African Charter, which do not recognise derogation in any situation Where a treaty provides for the submission including emergency cases.90 In the of periodic reports as part of its monitoring opinion of the two authors, this may mechanisms the Cabinet Secretary shall, in conjunction with the Attorney General pose a challenge in terms of the review and the relevant State Department process by treaty bodies and during liti- facilitate the preparation and submission of gation under the Bill of Rights.91 These such report within the prescribed period. views are particularly important taking into account that international law now The Cabinet Secretary referred to in this provision is the one responsible for forms part of the Kenyan law pursuant 95 to article 2(6) of the Constitution. foreign affairs. The relevant State Department presumably refers to the On political participation, Ogendi department responsible for the subject observes that the standard set under arti- matter of the treaty. cle 13(1) of the African Charter did not impose upon its members the require- Currently, the Office of the Attor- ment of a free and fair election and as ney General is charged with the leader- such, it was necessary to remedy this ship role in the preparation of state situation by the adoption of the Charter reports on human rights treaties. Where- on Democracy, Elections and Good as KNCHR is constitutionally mandat- Governance.92 ed to ensure compliance with obligations under treaties and conven- Lastly, Aura, while giving several tions, this mandate is however restricted examples about the situation of women to a watch-dog role of developing alter- in Kenya, is of the view that ratification native reports. The Department of by Kenya of CEDAW in 1984 and the Justice under the AG’s office is thus Maputo Protocol in 2010 has not ‘fully’ responsible for reporting to the African benefited Kenyan women as it should Commission as well as other UN treaty 96 have.93 Monitoring bodies. Section 5(1)(d) of the Office of the Attorney General Act97 provides that in addition to the func- tions of the Office of the Attorney General under article 156 of the Consti- tution, the Office is also responsible for 90 JO Ambani & MK Mbondenyi ‘A new era in human rights protection in Kenya? An amongst others: ‘coordinating reporting analysis of the salient features of the 2010 obligations to international human Constitution’s Bill of Rights’ in MK Mbondenyi et al Human rights and rights treaty bodies to which Kenya is a democratic governance in Kenya: A post-2007 appraisal (2015) 29. 91 Ambani & Mbondenyi (n 90 above) 30. 92 P Ogendi ‘Political parties and “free and 94 Act 45 of 2012. fair” nominations in Kenya’ in MK 95 Sec 2(1) of the Treaty Making and Mbondenyi et al (n 90 above) 161. Ratifications Act. 93 R Aura 'Judicial responses to women’s rights 96 These Reports are generated in collaboration violations in Kenya in the post-2007 context' with NGEC, KNCHR and select civil in MK Mbondenyi et al Human rights and society organisations working on human democratic governance in Kenya: A post-2007 rights issues. appraisal (2015) 364. 97 Act 49 of 2012. 128 Kenya member or on any matter which 13 Communications member states are required to report.’ Several communications have been The process of preparing the report lodged before the African Commission includes obtaining input from govern- against Kenya. The latest, the Endorois ment ministries as well as state bodies case, was decided in November 2009.101 such as independent national human Kenya was found to be in violation of rights institutions and civil society the Endorois peoples’ rights to freedom organisations. Nevertheless, this process of religion, property, cultural life, wealth has been faulted for not including the and natural resources and development. wider Kenyan public, and also for not The African Commission recommended measuring progress as against bench- that the state should recognise rights of marks or even with reference to ownership to the Endorois and restore concluding observations previously 98 Endorois’ ancestral land. It also found issued. With regards to the latter criti- that the state must ensure that the cism, Kenya recently submitted its Endorois community has unrestricted Combined 8th to 11th periodic report to access to Lake Bogoria and surrounding the African Commission with a section sites for religious and cultural rites and containing information on the 2007 for grazing their cattle. The African concluding observations of the African 99 Commission further recommended that Commission. Kenya pays adequate compensation to the community for all the loss suffered, The 2010 Constitution provides that pay royalties to the Endorois from exist- every year the President of the Republic ing economic activities and ensure that shall submit a report for debate to the they benefit from employment possibili- National Assembly on how the govern- ties within the Reserve. Furthermore, it ment is meeting its obligations with was recommended that the state should regard to international treaties.100 This grant registration to the Endorois provision holds the promise of account- Welfare Committee and engage in ability in terms of what the government dialogue with the complainants for the is doing to give effect to concluding effective implementation of these observations. Unlike before, the recommendations. Finally, as a follow- KNCHR is currently working in part- up mechanism, the African Commission nership with government to ensure time- recommended that Kenya should report ly reporting and dissemination of on the implementation of these recom- concluding observations by the various mendations within three months from committee bodies. the date of notification.
On 18 January 2011, and in response to a question in Parliament on the status of implementation of the 98 OHCHR ‘Taking these rights seriously: Civil society organisations’ parallel report to the above recommendations, the Minister of initial state report of the Republic of Kenya Lands indicated that he had requested on the implementation of the International Covenant on Economic, Social and Cultural and was still waiting for a certified copy Rights’ (2008) 8 http://www2.ohchr.org/ of the decision from Kenya’s Mission to english/bodies/cescr/docs/ngos/K-HURI NET_Kenya_CESCR41_report.pdf (accessed 15 August 2011). 99 n 51 above, 67-72. 101 (2009) AHRLR 75 (ACHPR 2009) (27th 100 Art 132(1)(c)(iii). Activity Report) (Endorois case). Impact of the African Charter and the Maputo Protocol in selected African states 129 the AU in Addis Ababa.102 He never- On its part, KNCHR is not able to theless indicated that there were already profile all communications due to limit- steps that the government had undertak- ed resources and other competing needs. en, even though not specifically in Consequently, it gives exposure only in response to the communication, that specific matters that are of broad public would resolve some of these issues. He interest, for example, the Endorois case noted that the 2010 Constitution ruling and its significance to the rights protected community land,103 directed of indigenous communities and land the state to take measures, including the rights in Kenya. In such cases, KNCHR enactment of legislation, to revise, engages with relevant stakeholders to consolidate, rationalise existing land ensure that the findings are widely laws and revise sectoral land use laws in disseminated. accordance with principles of equitable access to land and security of land rights In the Endorois case, KNCHR amongst other principles.104 In relation convened CSO stakeholders to mobilise to the environment and natural resourc- the public through television and print es, the 2010 Constitution provides that media and through grassroots work- the state shall ensure the sustainable shops with the Endorois community on exploitation, utilisation, management the recommendations’ significance to and conservation of the environment, their rights as indigenous people. Steps public participation in these goals and have also been taken to engage with utilisation of the environment and natu- Parliament and with the Minister ral resources for the benefit of the people responsible for land affairs to pursue the of Kenya, to name a few obligations.105 implementation of the decision as part Other provisions relate to the enforce- of the wider realisation of the communi- ment of environmental rights and the ty land framework under the current regulation of agreements relating to the Constitution. As a follow up, CSOs and exploitation of natural resources.106 KNCHR will undertake a strategic plan- ning process to identify key resources The Minister further pointed out and formulate means of mainstreaming that the Ministry of Lands had drafted a the Endorois decision implementation National Lands Policy and was within their core programme areas. The involved in the drafting of a National convening role of KNCHR remains Land Commission Bill and a Lands Bill. important.107 Indeed, today, KNCHR The Policy had received input from has in place minorities and marginalised pastoral and minority groups. He said groups programmes focusing on, that the emphasis of the Ministry was amongst others, indigenous groups. on developing a framework on equitable access to land for use rather than owner- Also, recent decisions against ship. Kenya from the African Commission have not gone beyond the preliminary stages. In February 2013, Communica- tion 407/11 Artur Margaryan and Artur 102 National Assembly Official Report (18 Sargasyan v Kenya was struck out for lack January 2011), Questions by private notice ‘Property rights for pastoralists/marginalised of diligent prosecution. Similarly, groups’ 17-22. 103 Art 63. 104 Art 68. 107 Interview with Senior KNCHR Staff in 105 Art 69. charge of Minorities in the ECOSOC 106 Arts 70-71. Department, 17 August 2011. 130 Kenya
Communication 464/14 Uhuru Kenyatta took place from 24 to 28 August and William Ruto (represented by Innocence 2015.111 Project Africa) v Kenya was also rejected at seizure stage during the 15th extraor- 15 Factors that may impede or dinary session of the African Commis- enhance the impact of the sion in Banjul, The Gambia. African Charter, the Maputo Protocol and the African 14 Special mechanisms and Commission promotional visits by the African Commission The 2010 Constitution has provided a much needed breath of fresh air in the In 2003, then member of the African articulation and advocacy of human Commission responsible for Kenya, rights principles in Kenya. In particular, Commissioner Vera Chirwa, decried the article 2(5) thereof provides that all trea- apathy towards requests for promotional ties ratified by Kenya shall form part of visits which went unanswered and unac- the laws of Kenya. The import of this is knowledged, and the then dismal state that all human rights treaties that Kenya reporting status on the African Char- has ratified (including the African Char- 108 ter. Notwithstanding this general ter), now constitute part of Kenyan law. concern, in 1998, Kenya hosted one promotional mission by the Special Moreover, the Bill of Rights Rapporteur on Prisons, Conditions of contains a raft of provisions that are Detention and Policing in Africa.109 modelled on international and regional The Working Group on indigenous standards for the promotion and protec- populations/communities in Africa tion of human rights. It is anticipated conducted a research and information that this, together with a vibrant civil visit to the Republic of Kenya from 1-19 society, fairly independent media and March 2010.110 Lastly, at the invitation effective watchdog agencies such as the of the KNCHR, working together with a KNCHR, will enhance the human rights group of civil society organisations, the discourse in Kenya and thus the impact Special Rapporteur on Freedom of of the African Charter and the Maputo Expression and Access to Information Protocol of the African Commission conducted a five day advocacy visit in Kenya, which In terms of government led process- es, the reform process in Kenya has seen matters of human rights come to the fore and be included in every discussion on law and policy. Furthermore, adop- tion of the proposed National Action 108 East African Human Rights Report - Kenya Plan and Policy on Human Rights and (2003) 1 The East African Journal of Human Rights and Democracy 1 26. the Performance Contracting Process in 109 Adopted during the 24th ordinary session government with human rights indica- held from 22-31 October 1998 in Banjul, The Gambia, http://www.achpr.org/states/ken ya/missions/promo-1998/ (accessed 5 December 2015). 111 See the press statement here: http://knchr. 110 Adopted during the 50th ordinary session org/Portals/0/PressStatements/Press%20 held from 24 November 2010 in Banjul, The Statement-Advocacy%20Visit%20by%20Sp Gambia, http://www.achpr.org/states/ken ecial%20Rapporteur%20and%20Freedom% ya/missions/indigenous-2010-kenya/ 20of%20Expression.pdf (accessed 21 Sep- (accessed 5 December 2015). tember 2015). Impact of the African Charter and the Maputo Protocol in selected African states 131 tors will ultimately result in the main- laws and its impact on human rights in streaming of human rights in all aspects Kenya. of service delivery by government. In addition, there is the perception Kenya was, under the previous that UN Mechanisms are more effec- Constitution, a dualist state. This meant tive, and they thus enjoy more publicity that international instruments had force than the African mechanisms. For of law only when domesticated, and instance, the former UN Special undomesticated treaties were only Rapporteur on Extra-Judicial Execu- persuasive in terms of human rights tions, Professor Philip Alston took advocacy and litigation. Coupled with a government to task over alleged extra lack of judicial activism, this effectively judicial killings by the Kenyan police hampered the impact of the African and military in 2008 whereas little was Charter, notwithstanding that the Char- heard from the AU and African ter was adopted in Nairobi. Myriad Commission on this. Furthermore, the governance challenges and a hostile AU’s political stand in matters relating political environment for human rights to the International Criminal Court defenders suffocated the human rights process in Kenya and other African discourse in general including the Afri- states has served to cast all AU affiliated can Charter and the Maputo Protocol. mechanisms, including those established The enhanced democratic space and a by the African Charter, in a negative more vibrant human rights discourse light within the domestic realm. For this after 2003 has generally improved pros- reason, it is suggested that the African pects for positive impact of the Charter Commission undertakes a promotional and the Protocol in Kenya. visit to Kenya to engage with CSOs and other human rights actors and the gener- A significant challenge, however, is al populace in an effort to create new the lack of awareness and use of the partnerships and strengthen existing African Charter and the Maputo Proto- ones. col by CSOs, legal practitioners and government bodies. In most cases, Additionally, the main challenge lawyers and activists rely on the provi- today for human rights in Kenya is the sions of international treaties such as the fight against terrorism particularly in the ICCPR, and other UN instruments. wake of the WestGate Mall and Garissa Recourse is only had to the African University attacks. The Kenyan govern- Charter in cases before the East African ment has responded by applying meas- Court of Justice whose constitutive ures that sometimes violate human instrument makes explicit reference to rights norms. There should be a clear the Charter as a source of law.112 response by the African Commission to Kenyans are quick to engage with the ensure that human rights are not UN mechanisms to the detriment of the ignored during the implementation of regional framework. There is thus the counter-terrorism measures. This is need for enhanced awareness on the because as discussed above, and in line African Charter, and its relation to our with the African Commission’s jurispru- dence, the African Charter does not recognise derogation of human rights even in emergency situations. 112 For instance IMLU v Attorney General of Kenya and 4 others EACJ Ref No 3 of 2010. 132 Kenya
With specific focus on the Maputo Protocol, it is evident that there are still a number of negative cultural practices that continue to subjugate women and impede the full realisation of their rights. Practices such as early marriages, wife inheritance, female genital mutila- tion and preference for the boy-child still need to be addressed in order to enhance the impact of the Maputo Protocol.
State parties to the Maputo Protocol have also not fully embraced its spirit. There is, therefore, a dire need for more sensitisation on the gains that the Mapu- to Protocol offers to the African people ‒ both men and women, in terms of accelerated development due to the great untapped potential of African women in all spheres of life.
Kenyan national Lawrence Mute has been a member of the African Commission since 2013. This is a unique opportunity for Kenya to ensure better realisation of human rights in the country.
Additionally, Kenya hosted the 18th extraordinary session of the African Commission in Nairobi from 29 July to 7 August 2015, signalling an improving relationship in human rights coopera- tion. THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN LESOTHO
Sizakele Hlatshwayo*
1 Introduction systems cannot be applied simultaneous- ly in a given situation.3 Lesotho gained independence in 1966 from the British government and inherit- The 1993 Constitution of Lesotho ed a Westminster type constitution provides a framework for the promotion which provided for a Constitutional and protection of human and peoples’ Monarch as the head of state and a rights. Section 18(4)(c) of the Constitu- prime minister, who was the leader of tion entrenches freedom from discrimi- the majority party, and exercised execu- nation and stipulates that no law may tive power as the head of government. A make a provision that is discriminatory new Constitution was drafted and came and that public officials, whilst perform- into effect on 2 April 1993. Ironically, ing their duties in terms of any law, may not treat any person in a discriminatory the new Constitution was a replica of 4 the Independence Constitution.1 Section manner. The Constitution defines 45 of the 1993 Constitution of Lesotho discrimination as affording different provides that the King is designated by treatment to different persons on the the College of Chiefs in accordance with basis of race, colour, gender, language, the Customary Law of Lesotho if his religion, political or other opinion, national or social origin, property, birth predecessor dies or if there is a vacancy 5 in the Office of the King. Lesotho has a or other status. Nevertheless, it is dual legal system, Roman Dutch Law important to note that the principle of (Common Law) and Basotho customs non-discrimination does not apply to (Customary Law).2 These two systems certain aspects of life which fall within the ambit of customary law and person- of law have equal validity with the provi- 6 so that in cases of inconsistency, statuto- al law. Institutions of protection, such ry law prevails. However, the two as the courts and the Ombudsman, have
3As above. * LLM HRDA (Pretoria). 4 Shale (n 1 above). 1 I Shale ‘The law and legal research in 5 M Pholo ‘Lesotho: Justice sector and the Lesotho’ (update) (2014) Globalex http:// rule of law’ (2013) Afrimap. www.nyulawglobal.org/globalexLesotho. 6 The areas include adoption, marriage, htm (accessed 24 August 2015). divorce, burial, devolution of property, death 2 Lesotho State Report on CEDAW, submitted or other matters which fall within the to the UN CEDAW Committee on July 2010 provisions of personal law. See section (CEDAW /C/LSO/1-4). 18(4)(c) Constitution of Lesotho.
133 134 Lesotho been established to give practical effect Be that as it may, Lesotho has over to these rights. However, there are the years made great strides to circum- several social, cultural and economic vent the situation of women’s minority rights (contained in Chapter III of the status in many ways, including through Constitution) which cannot be contested the enactment of laws aimed at protect- or enforced through the courts, but are ing the rights of women. For instance, promoted through the policies of the married women in Lesotho gained state.7 equality to men in 2006 under the Legal Capacity of Married Persons Act. Legal- As Lesotho is a patriarchal society, ly, any woman can now own land, gender roles and stereotypes and socio- receive inheritance, and make her own cultural norms are prejudiced by patriar- decisions. In 2003, women's rights were chy, a system which is embedded on an protected through passage of the Sexual ideology which supports and justifies Offenses Act which officially defines all the subordination of women by men, forms of unwanted sexual penetration as regulates relations between them and rape, not just vaginal penetration as was allows men to control women in all the case prior to this Act. The law also spheres of life, including in private and gives legal rights and validity to men public life. The negative stereotypes who are raped.9 Other key pieces of about women are unfortunately perpe- legislation include the Labour Code trated by the honour of the Basotho Order 1992, which defines discrimina- culture which has deep-seated harmful tion in the work place as any exclusion norms, practices and traditions (patriar- or preference made on the basis of sex, chal attitudes) regarding the roles, marital status or religion; the Labour responsibilities and identities of women Code Wages (Amendment) Act 2009, and men. For instance, polygamy and which provides for paid maternity leave bride price (Bohali) are key customs and for workers in clothing, textile and practices that perpetuate discrimination leather manufacturing sectors;10 the and unequal status against women and Education Act (2010) which provides girls in the fields of education, public for free and compulsory education; the life, decision-making and exacerbate the Anti-Trafficking in Persons Act (2011) 8 persistence of violence against women. which criminalises all forms of slavery Although women and men enjoy equal and provides for harsh penalties for rights in civil and criminal courts, inher- perpetrators; and the Children’s Protec- itance rights are an exception. Civil law tion and Welfare Act (2011). A Law does not address the issue, and custom- Reform Commission was also estab- ary law discriminates against women lished on 16 December 1993 with the and girls as it pertains to inheritance. mandate of reviewing discriminatory Customary law limits inheritance to laws.11 In 2003, Lesotho adopted a male heirs only; it does not permit Gender and Development Policy (2003) women or girls to inherit property. which commits the state to ensuring that all sectors of development address gender inequalities that permeate all sectors of society. The Policy further 7As above. 8 C Balch ‘Discovering the mountain kingdom: Women in Lesotho – Gender inequality’ http://pcbalch.blogspot.co.za/20 9As above 08/07/women-in-lesotho-gender-inequality. 10 See n 2 above. html (accessed 22 June 2015). 11 Law Reform Commission Act 5 of 1993. Impact of the African Charter and the Maputo Protocol in selected African states 135 addresses inequalities cutting across ties. In Britain, at the time, the power to social, racial, legal, cultural, economic ratify international treaties resided with and political spheres.12 the executive rather than the legisla- ture.16 According to one author, However, the country has continued commenting on the position in Botswa- to hold on to cultural principles in some na, which is almost identical to the aspects which members of the public are Lesotho position, the legislature plays not comfortable to abandon. Although no role in the treaty ratification the Constitution prohibits discrimina- process.17 It is arguable that this is also tion of any kind and unfair treatment, it the position in Lesotho given a similar contains exceptions to the principle of historical context. Lesotho ratified the non-discrimination (as stated above) in African Charter on 10 February 1992 matters relating to adoption, marriage, and the Maputo Protocol on 26 October divorce, burial, devolution of property, 2004.18 True to the tradition of execu- death or other matters that fall within tive-led ratification, the process in both provisions of personal law, or where instances seems to have been led by the customary law is applicable. This is in executive to the exclusion of parlia- 13 contravention of the Maputo Protocol. ment.19 The Kingdom has been called by treaty bodies including the CEDAW Commit- The Ministry of Justice is responsi- tee,14 to amend provisions of the Consti- ble for coordinating implementation of tution which are discriminatory as they Lesotho’s obligations under the African constitute claw-back clauses which give Charter, while the Ministry of Gender rights on one hand and take away the and Women’s Affairs is responsible for rights on the other. Worse still, Lesotho obligations in respect of the Maputo has continued to protect the issue of Protocol. In 2002, the government shuf- succession to the throne and chieftain- fled ministries, and as a result, the ship, despite a world-wide, widely publi- Ministry of Gender and Youth, Sports cised litigation strategy by women’s and Recreation (MGYSR), amongst rights and gender activists in the Senate others, was established. Its functions are Masupha chieftaincy case.15 to drive and direct the country’s initia- tives to promote and protect the rights 2 Ratification of African Charter of women. Several initiatives have been and the Maputo Protocol implemented as a result of the establish- ment of this coordinating Ministry.20 One of the legal traditions that Lesotho They are therefore responsible for liais- imported from the British Common ing and communicating with the Afri- Law is in the realm of international trea- can Commission on the Maputo
16 BT Onkemetse ‘Giving effect to treaties in 12 As above. the domestic law of Botswana’ (1997) 10 13 See n 11 above. Lesotho Law Journal 205, 209 cited in 14 CEDAW Committee Concluding Recom- T Thabane & I Shale Impact of the African mendations to the Lesotho State Report Charter and Maputo Protocol (2012). October, 2011. 17 As above. 15 Senate Masupha v Senior Resident Magistrate of 18 See ‘Chart of ratifications: AU human rights the Subordinate Court of Berea District and treaties’ in C Heyns (ed) Compendium of key Others 2014 LSCA CofA Civ. All the courts human rights documents of the African Union including the upper court of the land, upheld (2005) 261-264. the discriminatory provision. This was a 19 T Thabane & I Shale Impact of the African blow not only to the Basotho women, but to Charter and Maputo Protocol (2012). all women in the African region. 20 CEDAW Report (n 2 above). 136 Lesotho
Protocol. The Ministry of Justice, Although the Constitution is, for the Human Rights and Correctional Servic- most part, consistent with the norms es is charged with the dispensation and laid down by international agreements administration of justice, protection and to which Lesotho is a party, such promotion of human rights and the consistency is limited by adherence to rehabilitation of offenders. In fulfilling customary law. Whilst the Constitution its mandate, the Ministry pursues the is progressive in some areas, its guaran- efficient delivery of Justice through tee of non-discrimination does not apply improved and more effective use of to the customary law pertaining to correctional resources and the provision persons who are subject to such law.22 of skills; ensuring a culture of zero toler- Pholo23 in analysing the situation noted ance to corruption, and committing that ‘this claw-back provision has the Lesotho to the promotion and protec- effect of perpetuating the application of tion of human rights of disadvantaged customary law, including those of its people such as children, the vulnerable, aspects which legitimise gender-based people with disabilities and those infect- discrimination’.24 She argues that there ed and affected by HIV and AIDS.21 is no constitutional provision which obliges the government to domesticate 3 Domestication or incorporation all human rights instruments or that provides for a systematic process for Lesotho, just like a number of countries domesticating international human in the African region, practices the dual- rights treaties once they are ratified or ist approach to domestication and acceded to. In order to enable the people enforceability of international instru- of Lesotho to benefit fully from the ments. This means that international protection of human rights, the Consti- instruments are not enforceable in tution must be amended to include national courts of law, unless they have provisions that make domestication of 25 been incorporated into national laws by ratified treaties obligatory for the state. an Act of Parliament. The monist approach, on the other hand is such that There has been an attempt to once a country has ratified an instru- domesticate some provisions of the ment, it becomes an integral part of Maputo Protocol, through the Legal national laws and is enforceable. Capacity of Married Persons Act 2006.26 The rights enshrined in the Afri- Notwithstanding ratification of the can Charter, albeit not all, are explicitly 27 African Charter and the Maputo Proto- provided for in the Bill of Rights. In col, there has not been any deliberate particular, the following rights are 28 move to domesticate either of the two provided for: the right to life, the right 29 instruments, thus limiting enjoyment of to personal liberty, freedom of move- 30 human rights for the people of Lesotho ment, freedom from inhumane treat- as envisaged in the instruments. Worse still, Lesotho has continued to enact 22 Sec 14(c) of the Constitution. laws that contravene its obligations 23 Pholo (n 5 above). 24 As above. under both the African Charter and the 25 As above. Maputo protocol. 26 Legal Capacity of Married Persons Act 9 of 2006. 27 See Chap 2 of the Constitution. 28 Sec 5 of the Constitution. 21 Lesotho government portal http://www. 29 Sec 6 of the Constitution. gov.ls (accessed 25 August 2015). 30 Sec 7 of the Constitution. Impact of the African Charter and the Maputo Protocol in selected African states 137 ment,31 freedom from slavery and and political rights.48 They are regarded forced labour,32 freedom from arbitrary as principles of state policy and as such search or entry,33 the right to respect for are not enforceable in any court. These private and family life,34 the right to a rights are also subject to the limits of the fair trial,35 freedom of conscience,36 economic capacity and development of freedom of expression,37 freedom of Lesotho. They are meant to guide the peaceful assembly,38 freedom of associa- authorities and agencies in the perfor- tion,39 freedom from arbitrary seizure of mance of their duties with a view to property,40 freedom from discrimina- progressively realising them.49 They tion,41 the right to equality before the include the protection of health,50 provi- law and the equal protection of the sion for education,51 and the opportuni- law,42 and the right to participate in ty to work.52 government.43 Interestingly, the Leso- tho Constitution has an equality provi- 4 Legislative and policy reforms sion which enjoins the state to take affirmative action measures to promote Notwithstanding the lack of direct the rights of disadvantaged groups, but domestication of human rights treaties, this is under principles of state policy Lesotho has made great strides in legis- 44 and thus not justiciable. lative reform, as noted in several 53 45 government documents. There exist a Shale and Thabane observe that plethora of legislation and policies some of the rights in the African Charter which incorporate rights provided for in have not found their way into the 1993 the African Charter and the Maputo Constitution, at least explicitly. They, Protocol. These include: the Legal however, noted that the 1993 Constitu- Capacity of Married Persons Act (2006), tion proscribes undignified practices like the Sexual Offenses Act (2003), the slavery and inhumane treatment, but Labour Code Order 1992), the Labour does not, like the African Charter, Code Wages (2009), the Anti-Traffick- explicitly provide for the right to human ing in Persons Act (2011), the Chil- dignity as an independent right.46 It also 47 dren’s Protection and Welfare Act lacks the right to receive information. (2011), and the Gender and Develop- ment Policy (2003). Socio-economic rights are provided for in a separate chapter of the 1993 Some important government poli- Constitution from the traditional civil cies implicitly give effect to both the African Charter and the Maputo Proto- col. For example, the Gender and 31 Sec 8 of the Constitution. 32 Sec 9 of the Constitution. Development Policy strives to address 33 Sec 10 of the Constitution. gender inequality and the vulnerability 34 Sec 11 of the Constitution. 35 Sec 12 of the Constitution. 36 Sec 13 of the Constitution. 37 Sec 14 of the Constitution. 48 See Chap 3 of the Constitution. 38 Sec 15 of the Constitution. 49 See sec 25 of the Constitution on application 39 Sec 16 of the Constitution. of the principles of state policy. 40 Sec 17 of the Constitution. 50 Sec 27 of the Constitution. 41 Sec 18 of the Constitution. 51 Sec 28 of the Constitution. 42 Sec 19 of the Constitution. 52 Sec 29 of the Constitution. 43 Sec 20 of the Constitution. 53 For example, Lesotho Poverty Reduction 44 Sec 26 of the Constitution. Strategy (2004/2005-2006/2007); National 45 Thabane & Shale (n 19 above). Gender Policy, Lesotho Report to the 46 Art 5 of the African Charter. CEDAW (2010); Lesotho SADC Protocol 47 Art 9 of the African Charter. Gender Barometer 2014. 138 Lesotho of women to HIV/AIDS.54 It calls for strategic plan.56 The National HIV and non-discrimination towards women, AIDS Strategic Plan 2007/2011, which men, girls and boys in the following ten was launched in 2007, identifies domes- priority areas: gender and poverty and tic violence as one of the factors fuelling economic empowerment; gender and HIV and AIDS in Lesotho and commits education and training; gender and the state to addressing it in collaboration youth; gender and power, gender and with partners through implementing the politics and decision making; gender Behaviour Change Strategy. The coun- and health; gender-based violence; try also developed a National Action gender and civil society organisations; Plan on Gender-based Violence in 2007, gender and the media; gender and the set up a One Stop Centre to support environment; and gender and science survivors of abuse as anticipated by the and technology. The above rights are Maputo Protocol and established a dedi- also encapsulated in the Maputo Proto- cated Unit for Children (Child and col. The policy serves as a guiding tool Gender Protection Unit (CGPU)), to the government of Lesotho in its recognising that children, although by effort to achieve gender equality and extension are provided for under protect the interests of vulnerable groups women’s rights issues have specific such as women. It is also used as a needs that need special attention. guide in gender mainstreaming process- es for all government ministries, which The Lesotho Law Reform Commis- could serve to address gender concerns sion (LLRC) is mandated to review laws in a wide spectrum of developmental of Lesotho and consider proposals with issues.55 Subsequent to the formulation a view to ensuring that the laws and of the Gender and Development Policy, proposals are consistent with the protec- an Implementation Plan 2008/10 was tion of fundamental human rights and developed for mainstreaming gender freedoms specified in Chapter II of the concerns in policies and programmes of Constitution. different sectors. Concurrently, institu- tional strengthening was undertaken for 5 Court judgments effective implementation of the plan, by establishing Gender Focal Points According to Thabane and Shale,57 the (GFPs), the Gender Technical Commit- African Charter and the Maputo Proto- tee (GTC) and an Expanded Thematic col are seldom used in judgments. Group on Gender and Reproductive However it would seem that the Leso- Health (later renamed the Gender tho courts are in fact ready and willing Forum) to effectively implement the to rely on these international instru- plan. ments when these are relevant and persuasive in any given circumstances – Other policies that have favourably for example those that deal with issues considered the African Charter and such as the independence and impartial- Maputo Protocol include the Lesotho Correctional Service HIV and AIDS policy and the National HIV/AIDS 56 Thabane & Shale (n 19 above). These are available on the National AIDS Commission website at http://www.nas.org.ls/docu ments/default.php (accessed 12 September 54 Thabane & Shale (n 19 above). 2011). 55 Lesotho Report on CEDAW (n 2 above). 57 As above. Impact of the African Charter and the Maputo Protocol in selected African states 139 ity of the courts, free and fair elections, activities of the executive and the 61 human rights and freedoms.58 legislature.
The courts began, in Joe Molefi v However, in interpreting the right to legal representation in DPP v Sole and government of Lesotho, with a strict 62 approach to dualism where they another, the Court made reference to demanded that ratified international several international human rights instruments including article 7(1) of the instruments be incorporated into the 63 domestic law before they can regard African Charter. Later, in the celebrat- their provisions enforceable.59 In Baso- ed case of Molefi Ts’epe v The Independent tho National Party and Another v govern- Electoral Commission and Others, the high- ment of Lesotho and Others,60 the est court in the land confirmed the applicants, inter alia, sought an order emerging acceptance and reliance on directing the government of Lesotho to international human rights instruments take necessary steps, in accordance with by referring to several ratified, but undo- its constitutional processes, to adopt mesticated instruments including the such legislative and other measures African Charter, CEDAW, the SADC necessary to give effect to the rights Declaration on Gender and Equality, and the International Covenant on Civil recognised in international conventions 64 such as the African Charter. The Court and Political Rights (ICCPR). The explicitly stated that ‘these Conventions appellant had challenged the constitu- cannot form part of our law until and tionality of a law that reserved one third unless they are incorporated into munic- of local government seats for women. ipal law by legislative enactment.’ The He contended that the law was discrimi- Court stressed that: natory on the basis of sex. Interestingly, he also argued that the international the court cannot usurp the functions obligations that the respondent sought assigned the executive and the legislature to bring to the fore were actually in under the Constitution and it cannot even conflict with the domestic laws of Leso- indirectly require the executive to tho. The court dismissed his arguments indirectly introduce a particular legislation or the legislature to pass it or assume itself and found that Lesotho was bound by a supervisory function over the law-making its international obligations. It specifi- cally referred to article 18(4) of the Afri- can Charter despite the fact that this Charter is not domesticated. In an 58 SN Peete ‘Influential constitutional justice – unprecedented move, the Court also Its influence of society and on developing a global human rights jurisprudence: A referred to, but did not apply, the Mapu- Lesotho perspective’ http://www.venice. to Protocol, which Lesotho had already coe.int/WCCJ/Papers/LES_Justice_Peete_ E.pdf (accessed 25 August 2015). 59 Joe Molefi v government of Lesotho 1967-70 LLR 237. See also K Mohau ‘Protection and 61 The Court quoted Bhagwati J in State of redress for victims of crime and human rights Huniachal Pradesh v Student 1 Parent (1986) violations: Adequacy and efficacy of LRC 208 (Supreme Court of India). institutions and laws’ in Lesotho Justice 62 [2001] LSHC 101 (unreported). Sector Conference Report (26-30 July 2004) 63 See also Judicial Officers Association of Lesotho v 96 where the author makes reference to this The Prime Minister [2006] LSHC in which the decision. Court referred to arts 7 and 26 of the African 60 Basotho National Party and Another v govern- Charter and stated that Lesotho is a state ment of Lesotho and Others (Constitutional party to the African Charter which imposes Case No 5/2002) [2003] LSHC 6 (1 January on it, the duty to guarantee independence of 2003) (unreported) and Moosa and others v the courts. Magistrate - His Worship Mr Ntlhakana and oth- 64 Lesotho ratified the ICCPR in 1992 and ers [2007] LSHC. CEDAW in 1995. 140 Lesotho ratified at that stage, but which had not Maputo Protocol. In the case of Security yet come into force due to the fact that Lesotho v Moepa,68 the court cited inter- there were inadequate ratifications.65 national human rights instruments, including article 26 of the African Char- Regarding the utility of the African ter. Also in Rex v Malefetsane Mohlomi Charter and the Maputo Protocol, in an and Others,69 the court referred to the 66 interview with Shale and Habana, African Charter on the Rights and four of the 11 Judges of the High Court Welfare of the Child. It should be noted of Lesotho indicated that minimal use of however that the list of cases mentioned these instruments is attributed to above is not exhaustive as access to the amongst other things: lack of awareness recent cases by the researcher had limi- by the courts as to the existence of the tations. two instruments and whether Lesotho is party thereto; lack of awareness and However, the case of Senate access to the decisions of the African Masupha v the Kingdom of Lesotho70 was Commission; failure of legal practition- found to have gone an extra mile in rely- ers to refer to the two instruments and ing on the two instruments as a basis for the lack of enabling legislation that their arguments: domesticates the African Charter and the Maputo Protocol. Pholo in her anal- On May 16, the Constitutional Court dis- ysis in 201367 went a step further and missed the gender discrimination case of Senate Masupha, who challenged the consti- asserted that the absence of enabling tutionality of the Chieftainship Act, which legislation for the domestication of the denies women the right to succeed to chief- international human rights instruments tainship based on the tradition of male pri- is the key reason for their minimal use. mogeniture. Masupha sought to succeed It would seem that the courts in Lesotho her late father as principal chief of Ha Mamathe in Berea District and to inherit have not allowed themselves to be his estate. The court ruled no discrimina- proactive enough in their judgments so tion had taken place and noted that even if as to play an advocacy role. In instances the law discriminated based on gender, where instruments have not been such discrimination would be justifiable domesticated, the Courts play a major because the constitution enshrines patriar- chal customary law. Masupha appealed the role in enforcing provisions of those decision; the Court of Appeal in March instruments through judicial activism. 2014, also upheld the decision of the subor- However, it is critical that law practi- dinate court. tioners, in their submissions, persuade the bench in that direction as well. Subsequent to exhausting local reme- dies, on 9 September 2014, Senate Recently, there has been an attempt Masupha, the Federation of Women for cases to cite the African Charter and Lawyers (FIDA-Lesotho) and the Southern Africa Litigation Centre (SALC) submitted a complaint to the
65 For a comprehensive discussion of the case, 68 Constitutional Case No 12 of 2014. see F Viljoen & M Nsibirwa ‘Political 69 Review case No 06/2013 CR. NO.10/2013/ participation of women in Lesotho: The case Review Order No 1/20. of Molefi Ts’epe v The Independent Electoral 70 Senate Gabashane Masupha v Senior Resident Commission and Others, Judgment of 30 June Magistrate of the Subordinate Court of Berea 2005’ (2006) 39 Comparative and International District and Others (2013) LSHC 9 CC; Senate Law Journal of Southern Africa 351. Gabashane Masupha v Senior Resident 66 Thabane & Shale (n 19 above) Magistrate of the Subordinate Court of Berea 67 n 2 above. District and Others (2014) LSCA CofA Civ. Impact of the African Charter and the Maputo Protocol in selected African states 141
African Commission challenging Leso- mation on the use of these instruments tho’s law that provides for male-only before national courts and to encourage succession to chieftainship. The prayer lobbying of the government to enact of the complainants was that the Afri- enabling legislation.73 They also provide can Commission declare (i) section 10 legal services for women and occasion- of the Chieftaincy Act 22 of 1968 inva- ally take on pro-bono cases for lid to the extent that it excludes all first orphaned children, particularly girls, in born daughters from succeeding their cases of property grabbing and dispos- fathers as chiefs and (ii) the Constitution session. GEMSA monitors the media of Lesotho invalid as far as it permits for equal and positive representation of discrimination in violation of articles 1, women.74 The Lesotho Christian Coun- 2, 3, 5, 13, 14, 16, 17, and 18(3) of the cil (LCC) educates the community on African Charter; and articles 2, 3, 5, their rights contained in all international 8(f), 9, 13,14, 17 and 21(3) of the Mapu- treaties. to Protocol.71 The Transformation Resource 6 Awareness and use by civil Centre (TRC) has a human rights unit society which in many instances uses the Afri- can Charter in its human rights campaigns, in its moot court competi- There is a reasonable presence of civil tions which it holds for law students and society organisations and NGOs operat- also in lobbying for domestication of the ing at the national level in Lesotho. The African Charter, so as to give effect to work that each organisation is engaged the rights provided therein, including in in indicates awareness and a level of particular socio-economic rights which incorporation of the two instruments are still not justiciable in the country.75 into their everyday work. They include: Civil society in Lesotho plays a major Women and Law in Southern Africa role in raising awareness on human (WLSA), Federation of Women rights issues including through being Lawyers (FIDA), the Lesotho Council involved in strategic litigation on perti- of NGOs (LCN), Lesotho Planned nent issues. The Federation of Women Parenthood Association (LPPA), Lawyers for instance collaborated with PHELA Health and Development the Southern Africa Litigation Centre Communications, as well as Gender (SALC) to bring the Chieftaincy case and the Media in Southern Africa before the African Commission. TRC is (GEMSA). WLSA runs a free legal the only NGO in Lesotho that has advice centre for women, empowerment observer status before the African programmes for women in leadership Commission, though it has collaborated positions, and awareness campaigns on with other local NGOs to send human property and inheritance rights.72 FIDA rights cases to the African Commission. trains paralegals in communities across However, Lesotho civil society has not Lesotho to give legal advice and infor- submitted any shadow reports to the African Commission on the two instru- 71 Sec 10 of the Chieftaincy Act violates arts 1, 2 3, 5, 13, 14, 16, 17 and 18 of the African ments under review. Charter; sec 10 of the Chieftaincy Act violates arts 2, 3, 5, 8, 9, 13, 14, 17 and 21 of the Maputo Protocol. 72 ‘Women and Law in Southern Africa – 73 As above. Lesotho’ http://www.womenandlaw.org.Is 74 Lesotho Report on CEDAW (n 3 above). (accessed 22 June 2014). 75 Thabane & Shale (n 19 above). 142 Lesotho
7 Awareness and use by lawyers general, though without necessarily and judicial officers singling out the Charter and the Maputo Protocol. In general, there is some level of aware- ness and recognition of the African 8 Higher education and academic Charter and the Maputo Protocol in writing Lesotho, particularly with government officials and civil society. The two The Faculty of Law at the National instruments have been used as a basis University of Lesotho has included two for development of key national docu- courses relating to the African Charter ments like the Poverty Reduction Strate- and the Maputo Protocol: Human gy; cited in judgments of the High Court Rights and Humanitarian Law as well of Lesotho and also used as a basis for as Gender and the Law. Human Rights advocacy work by civil society, calling and Humanitarian Law has been one of upon government to adhere to its obliga- the law courses at the university since its tions and commitments under the two inception, and topics relating to the instruments. African Charter have been taught as far back as 1981. Developments in terms of The level of awareness however resolutions and decisions of the African does not translate to practical usage of Commission on communications either the African Charter or the Mapu- submitted to it are also included in this to Protocol. It is in very few cases that course. Specific topics dealing with the lawyers in Lesotho have resorted to the provisions of the African Charter and its African Charter in their arguments. implementation mechanisms are also Most lawyers are of the opinion that part of the course. It also discusses the since the African Charter and the Mapu- African Commission and the procedures to Protocol have not been domesticated for bringing communications before it, into national law, they cannot be used as well as establishment of the African for either interpretation purposes or to Court of Justice. In Gender and the 76 persuade the courts. Law, which was recently reintroduced and made part of the curriculum within For those who make reference to the faculty of law, students are exposed regional human rights instruments, to the rights of women as enunciated in resort is made mostly to the European the Maputo Protocol and other instru- Court of Human Rights’ judgments and ments.78 the Canadian Charter on Human Rights. Exact reasons for this pattern The African Charter and the Mapu- could not be ascertained although one to Protocol have been referred to and at may conclude that the influence may be times critiqued in various articles in the from some of the Court of Appeal judg- Lesotho Law Journal which is produced ments in which cases from the Europe- and edited by the Faculty of Law at the an Court of Human Rights were quoted National University of Lesotho. These 77 with approval. There have been a articles focus on a range of issues, from number of trainings organised by the the rights of women in the African Law Society on human rights law in
76 As above. 77 As above. 78 As above. Impact of the African Charter and the Maputo Protocol in selected African states 143
Charter,79 human rights, democracy expression under the African Charter,84 and development aid in Africa,80 the racial discrimination,85 human rights right to legal representation in Africa,81 and democracy in Africa,86 the content independence of the judiciary,82 the of civil and political rights in the African concept of peoples’ rights,83 freedom of Charter,87 and culture and human rights.88
It is evident from the foregoing that 79 K Acheampong ‘The African Charter and academics in Lesotho have engaged equalisation of human rights’ (1991) 7 Leso- tho Law Journal 21; O Tshosa ‘Judicial pro- tection of the rights of women under the 84 K Acheampong ‘Freedom of expression constitutions of southern African countries including freedom of the press under the with particular reference to non-discrimina- African Charter’ (1997) 10 Lesotho Law tion’ (2008-2009) 18 Lesotho Law Journal 99. Journal 57. This article determines the extent In this article, the Charter and Protocol are and the nature of the right to freedom of quoted with approval as some of the interna- expression including that of the press under tional human rights instruments that prohibit the Charter. It argues that arts 27 and 28 discrimination on the basis of sex; N stipulate the parameters within which the Aniekwu ‘Customary law impacts on right may be interfered with or limited by women’s rights issues: Reconciling the ten- governments in accordance with the words sions in Nigeria’ (2008-2009) 18 Lesotho Law ‘within the law’ in art 9. The author, Journal 85 where the Charter and the Proto- however, notes that such limitations must be col are quoted as other sources or legal basis reasonably justifiable or necessary in a for women’s rights in Nigeria. The author democratic society in which alone this right notes with concern that although the Charter and other rights thrive. has become part of Nigerian Law, it has how- 85 ZS Gondwe ‘Prohibition against all forms of ever not been a basis for vindication of racial discrimination: Policy, law and reality’ women’s rights in Nigeria. She makes an (1996) Lesotho Law Journal 13. In discussing example of Mojekwu v Mojekwu in which a international and regional instruments that certain Nigerian custom was declared dis- prohibit discrimination, this article refers to criminatory but without reference to the arts 2 and 28 of the Charter. The author Charter or Protocol as the basis for such a criticises these provisions on the ground that holding. the Charter is concerned more with the 80 K Acheampong ‘Human rights, democracy promotion by way of superimposition of and development aid to Africa’ (1992) 8 human rights than with the identification Lesotho Law Journal 17. Here the author while and elimination of the root causes of racism. discussing the link between human rights, 86 K Acheampong ‘Africa and the vicissitudes democracy and developmental aid, refers to of the human rights principle of the will of art 22(1) of the Charter which imposes upon the people as the basis of the authority of state parties, the primary duty of facilitating government’ (1998) 11 Lesotho Law Journal the exercise of the right to development. He 87. The author refers to art 13(1) of the argues that though this article, unlike art 1(1) Charter and argues that it is a standard upon of the UN Declaration on Development does which all national constitutions should be not include the word ‘political’, and that is based and which if adhered to would lead to no sign that the Charter has revisited the democracy. ideological battlefield of the issue of 87 M Mbondenyi ‘Improving the substance and prioritisation of human rights. He bases this the content of civil and political rights under assertion on the fact that although the the African Human Rights System’ (2007) 17 Charter has not in the past, paid particular Lesotho Law Journal 37. This article attention to the right to development, it does commends the Charter for having all human make some reference to it in its preamble. rights provided in one instrument without 81 J Hatchard ‘The right to legal representation there being generalisation of rights. It also in Africa: The Zimbabwean experience’ identifies some shortcomings of the Charter (1988) 4 Lesotho Law Journal 135. that deal with civil and political rights and 82 PKA Amoah ‘Independence of the judiciary suggests how such may be improved. in Lesotho: A tribute to Justice Mofokeng’ 88 P Letete ‘The notion of culture and equality (1987) 3 Lesotho Law Journal. In discussing in international law: Conflict of laws in independence of the judiciary in Lesotho, the Lesotho’ (1998) 11 Lesotho Law Journal 159. author comments that although the Charter The author makes a point that art 18(3) of and other instruments seem to be in the Charter protects culture whilst at the agreement that judicial independence is a same time safeguards the equality of all sine qua non for protection of basic human human beings. The author laments that rights, they do not, however, provide despite being a party to the Charter, Lesotho comprehensive definition of the concept. has ‘ignored’ incorporating its provisions in 83 M Fanana ‘The peoples’ rights under the municipal law and thereby making protective African charter on human and peoples’ principles enunciated in the Charter and the rights’ (1997) 10 Lesotho Law Journal 37. Protocol useless. 144 Lesotho with the African Charter in their writing structure. The second part contains a from as early as the 1980s. It is, howev- description of the implementation of the er, worrying that the lawyers they train obligations under the Charter, listed arti- do not seem to see the value in using the cle by article. It concludes with a list of African Charter and other African the statutes and legal instruments instruments when they begin legal prac- referred to in the report.92 However, tise.89 Lesotho has not been able to meet the requirement of submitting periodic 9 State reporting and reports to the Commission; according to communications the 2012 Promotion Mission to Lesotho, five reports are now outstanding. Leso- State reporting is the domain of an tho has similarly not yet submitted any Inter-sectoral Committee for Human reports on the Maputo Protocol. Rights (ICHR) comprised of representa- There has been a slow increase in tives of different government ministries the number of communications submit- and civil society. The composition of ted to the African Commission against this body makes it ideal to deliver on Lesotho, following the first communica- state reporting as different government tion in 1989. Ironically, this was submit- ministries and civil society organisations ted before Lesotho became a party to are represented in it. It has been faced the African Charter and as such it was with a huge backlog of overdue reports declared inadmissible.93 It had emerged to different treaty bodies. It admitted to during the African Commission’s the promotional mission of the African promotional mission to Lesotho in 2006 Commission in 2006 that it prioritised that a prisoner tried to access the Afri- reporting to United Nations treaty can Commission through a letter bodies.90 It also acknowledged that it complaining about torture in Lesotho has capacity challenges. The govern- prisons, but his letter was short of a ment, therefore, ought to ensure that it formal communication.94 is resourced and able to deliver on its 91 mandate. Recently, three cases have been submitted to the African Commission Lesotho submitted an initial report against Lesotho. The Commission is yet on the African Charter in August 2000 to make its decision on the case of which covered the period from 1991 to 2000. It provided information on legisla- tive, judicial and administrative proce- 92 Lesotho: 1st Peripodic Report 1991-2000, dures, actions and interventions available at http://www.achpr.org/states/ intended to give effect to the African lesotho/reports/1st-1991-2000/ (accessed 10 September 2015). Charter. The first part of the report 93 See Simon B Nkata v Lesotho 33/89 http:// provides general information about the www1.umn.edu/humanrts/africa/comcases /33-89.html (accessed 9 September 2011). country and its legal and institutional Lesotho became a party to the African Charter on 10 February 1992 and this matter was declared inadmissible at the 89 Thabane & Shale (n 19 above). Commission’s 4th Ordinary Session held 90 See ACHPR ‘Report of the promotional from 17-26 October 1988. A prisoner also mission to the Kingdom of Lesotho’ (2006) tried to access the commission recently paras 129-136 http://www.achpr.org/files/ through a letter complaining about torture in sessions/40th/mission-reports/promo-lesot prisons but this was short of a formal ho-2006/misrep_promo_lesotho_2006_eng. communication. pdf (accessed 9 September 2011). 94 See Report of the promotional mission to the 91 Thabane & Shale (n 19 above). Kingdom of Lesotho (n 90 above) para 166. Impact of the African Charter and the Maputo Protocol in selected African states 145
Senate Masupha Chieftaincy. The Commissioner Mumba Malila Commission declared Asemie v Lesotho95 addressed a symposium on strengthen- inadmissible. And lastly, in Munyandu ing the independence of the judiciary in and Freeth v Angola and Others,96 a case 2010.101 This engagement with the dealing with the suspension of the country’s judiciary was a step in the SADC Tribunal submitted against all right direction, given the 2006 recom- SADC member states, the Commission mendations made by the African found that there was no violation of the Commission’s promotional mandate on Charter. issues of judicial independence in the country. 10 Special mechanisms and promotional visits of the A second promotion mission was undertaken from 3 to 7 September 2012. African Commission The mission was premised on the gener- al situation in Lesotho, thematic issues The African Commission undertook a related to freedom of expression and promotional mission to Lesotho from access to information, as well as prisons 3-7 April 2006.97 The mission was led and conditions of detentions.102 by Commissioner Mmasenono Mona- geng and her terms of reference were, The terms of reference for the inter alia, to raise awareness and visibili- mission included amongst other objec- ty of the African Commission; to tives; to promote the Charter, and delib- encourage Lesotho to establish a nation- erate on how to improve the enjoyment al human rights institution; and to of human rights in the country; to raise submit its first periodic report in accord- awareness on the importance of the ance with article 62 of the African Char- right to freedom of expression and 98 ter. After consultations with various access to information; hold discussions stakeholders, the mission made two with prison administrative officials and important observations, namely that other stakeholders on detention issues, civil society was weak and law reform assess conditions of prisons, follow up 99 was very slow. It also made recom- on recommendations arising from the mendations ranging from the speedy concluding observations adopted by the establishment of a national human Commission following its examination rights institution; abolition of the death of Lesotho’s initial report in 2000; and penalty; and measures to ensure the to encourage Lesotho to be up to date integrity and preservation of judicial independence.100 101 The Commissioner delivered a paper at the symposium on ‘Strengthening the independ- ence, impartiality and accountability of the judiciary in the context of Lesotho’ organ- 95 Communication 435/12 – Eyob B Asemie v the ised by the International Commission of Kingdom of Lesotho. Jurists in conjunction with the Judiciary of 96 Communication 409/12 – Luke Munyandu Lesotho 4-5 March 2010, Maseru, Lesotho Tembani and Benjamin John Freeth (represented titled ‘The independence of the judiciary by Norman Tjombe) v Angola and Thirteen through the eyes of the African Commission Others. on Human and Peoples’ Rights’ http:// 97 See Report of the promotional mission to the www.icj.org/dwn/database/Malila-SC-Judi- Kingdom of Lesotho (n 90 above) paras 129- cialIndependencethroughtheeyesoftheACH 136. PR.pdf (accessed 12 September 2011). 98 As above. 102 See ACHPR ‘Report of the promotional 99 As above, paras 184 and 185. mission to the Kingdom of Lesotho’ (2012) 100 See recommendations to various paras 7 8 www.achpr.org/states/lesotho/mis stakeholders from paras 186-217 of the sions/promo-2012 (accessed 13 November Report (n 90 above). 2015). 146 Lesotho with its periodic reports in accordance 11 Factors that may impede or 103 with article 62 of the African Charter. enhance the impact of the The mission comprised of Commission- African Charter, the Maputo er Pansy Tlakula, Commissioner Med Protocol and the African SK Kaggwa, and Ms Irene Desiree Commission Mbengue Eleke, Legal Officer at the Secretariat of the Commission, who Lesotho witnessed its first peaceful assisted the Commissioners. The transfer of power in June 2012 when mission met with various stakeholders Prime Minister Motsoahae Thomas at the high level in government, civil Thabane took office.106 Domestic and society organisations and other actors international observers described the who are involved in the protection and election as peaceful, credible and trans- promotion of human rights in Lesotho. parent. Also, for the first time, political The mission also visited the Central party leaders signed a declaration Prison of Maseru and the Correctional accepting election results.107 However, Centre of Maseru.104 just when the country was being cele- Following the visit, the Commis- brated for being democratic, 2014 saw sioners made a number of observations the country plunge into political unrest including commending peaceful elec- yet again. The current political situation tions, drafting of a media policy, ratifi- is therefore uncertain and may impede cation of African human rights the impact of the African Charter and instruments on children’s rights, the Maputo Protocol. women’s rights, democracy, elections Civil society and the media are and governance, and the African Court. major players in exposing human rights It noted with concern, amongst other violations and holding states and non- issues, Lesotho’s non-compliance with state actors accountable. The African her reporting obligation under article 62 Commission’s promotional mission of of the African Charter, and called on the 2006 observed that these two players are government to submit its reports in the very weak in Lesotho. This may there- nearest future. The delegation also fore explain the limited impact the Afri- encouraged the government to involve can Charter has in the country.108 civil society in the compilation of the periodic reports and thereafter made 105 Most countries have established recommendations. The research was dedicated human rights institutions to not able to ascertain how far the govern- promote the culture of human rights. ment has gone in implementing the Lesotho, despite support from donor recommendations made by the mission. agencies, and clear recommendation from the African Commission, has still not established a human rights institu- tion. This vacuum in the promotion of human rights indirectly impedes the
106 Amnesty International 2014 Human Rights Report on Lesotho. 103 As above. 107 US Department Human Rights Report on 104 As above. Lesotho 2013. 105 As above. 108 Thabane & Shale (n 19 above). Impact of the African Charter and the Maputo Protocol in selected African states 147 impact of human rights instruments in the country.109
Although civil society is generally weak, women’s rights groups like FIDA and the Lesotho Women and Law in Southern Africa (WILSA) have been vocal on issues of women’s rights. They have participated in debates that led to the elaboration of the Maputo Protocol and the SADC Gender Protocol and have used their experiences to shape the agenda of women’s rights in the coun- try. They have also been instrumental in the law reform process, thus ensuring that provisions of the African Charter and Maputo Protocol find their way into Lesotho’s domestic law. Having led the law reform process, they have also undertaken country-wide campaigns to expose women to the new laws meant to ameliorate their condition.110
It is arguable that the famous Molefi Ts’epe case paved the way for the direct impact of the African Charter, the Maputo Protocol and other internation- al instruments in Lesotho. It is up to lawyers and judges to embrace it. Commissioner Mumba Malila’s engage- ment with the judiciary and members of the legal profession where he, amongst others, exposed them to extensive juris- prudence of the African Commission on judicial independence and talked about the value of the African Commission’s jurisprudence in the municipal jurisdic- tion is indeed a step in the right direc- tion. It is hoped that the judiciary and the legal profession will tap into the information and knowledge shared by the Commissioner.111
109 As above. 110 As above. 111 As above. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN MALAWI
Sarai Chisala-Tempelhoff* Seun Solomon Bakare**
1 Introduction where the young listen to the old and the chiefs are obeyed. This of course Malawi is a country that is burdened by built up his own unassailability as the widespread poverty, food insecurity, paramount chief of chiefs. This control corruption, HIV/AIDS and pervasive extended to the sphere of morality. gender inequality. It is also a country HKB wanted to preserve traditional that still bears the traces of its convolut- values, attitudes and ways of thought. In ed political history. Malawi attained his role as the protector of culture, he self-government in 1963 and full inde- declared himself the ‘Number 1 1 pendence in 1964 with Dr Hastings Nkhoswe’ of all Malawian women. In Kamuzu Banda (HKB) as its first Presi- this manner, he used the concept of dent. The 1964 Constitution contained a mbumba to appropriate culture and Bill of Rights. However, at the attain- create a mass-based political organisa- ment of republican status in 1966, the tion. Matrilineal groups in Malawi use Bill of Rights was expunged from the the concept of the mbumba and the Constitution. The 1966 Constitution nkhoswe to explain the special guardian- formally made Malawi a one party state, ship that an older brother or maternal with the then ruling party, the Malawi uncle (the nkhoswe) has over the women Congress Party (MCP), as the sole legal- in the family (the mbumba). As the ly recognisable political party. Number 1 Nkhoswe of Malawian women, HKB expressed his deep HKB manipulated cultural concepts concern for ensuring their modesty and to validate and consolidate his control, moral integrity through legislative meas- often speaking of the ‘good village’ ures such as the dress code. Culture was redefined to suit his political ends.2
1 P Forster ‘Culture, nationalism and the * LLM HRDA 2005; Senior Legal Researcher invention of tradition in Malawi’ (1994) 32 and the founder of EmGENDER: the The Journal of Modern African studies 477; Malawi Gender Justice Network. J Power Political culture and nationalism in ** LLM HRDA (Pretoria); Legal Assistant at Malawi: Building kwacha (2010); L Semu the African Commission on Human and ‘Kamuzu's Mbumba: Malawi women's Peoples’ Rights, Banjul, The Gambia; and embeddedness to culture in the face of Visiting Professional at the International international political pressure and internal Criminal Court (ICC) in The Hague, The legal change’ (2002) 49 Africa Today 77. Netherlands. 2 Semu (n 1 above).
149 150 Malawi
HKB soon set about regulating 14 June 1993. A staggering two-thirds personal behaviour and he did so majority voted in favour of introducing through a comprehensive code of a multiparty system of government. censorship and dress provisions. The Presidential and parliamentary elections proffered rationale for the strict censor- were held under a provisional constitu- ship was ‘protecting the national culture tion that came into full effect the follow- from pollution by immorality’.3 Some ing year. The transition to democracy provisions never came into fruition, was negotiated peacefully; with the such as a Wills and Inheritance Bill, introduction of a pluralistic constitution, better known as the ‘Kamuzu’s Mbum- democratic elections and a change of ba’s Protection Bill’, that declared illegal government in May 1994, the formal certain injustices done to women in process of democratisation was complet- matters of inheritance, illegitimate preg- ed.5 nancy, marriage, and divorce.4 A provisional constitution, drafted Others, such as the Decency in by the Constitutional Subcommittee of Dress Act of 1973 and the Censorship the National Consultative Council and Control of Entertainments Act of (NCC) between January and May 1994, 1968, became a formal part of the legal was adopted by Parliament on 16 May system. These were laws that were 1994.6 This Provisional Constitution harshly enforced at the time, perhaps no provided for a year of operation, pend- more so than by the citizens themselves. ing review by a Constitutional Commit- The women of Malawi continuously tee. Thereafter, the revised Constitution carve out their freedoms from the endur- was adopted and came into force on ing rock of patriarchy. The Mbumba of 18 May 1995. The Bill of Rights drafted the HKB years lives on, and whilst new by the NCC has remained largely legislation is largely gender-responsive untouched by subsequent constitutional and follows the international human revision. The rights and freedoms rights norms, the enduring ‘cultural’ enshrined in the Bill of Rights are all conceptualisation of Malawian women fully justiciable, no distinction is made as the Mbumba with the state taking the between the different generations of place of the Number 1 Nkhoswe prevails. rights in this aspect. Alongside recognis- Malawian women are constantly negoti- ing almost all the traditional civil and ating their lives at the intersections of political rights, it also protects a number poverty, health, [dis]ability, culture, of economic, social and cultural rights ethnicity, class, race, law and [hidden] such as the right to education, cultural sexuality. and language rights, the right to proper- ty, the right to work or to pursue a liveli- Malawi returned to multi-party hood, and rights concerning family and democracy in 1994. HKB was old, out marriage. Section 24 protects the rights of touch and unaware of his limited of women, in a comprehensive set of popularity. He succumbed to wide- provisions that touch upon some of the spread pressure for change. A referen- protections under the Maputo Protocol dum to decide upon reintroducing multiparty democracy was held on 5 H Meinhardt & N Patel Malawi's process of democratic transition: An analysis of political developments between 1990 and 2003 (2003). 3D Jones Censorship: A world encyclopedia 6 See the Constitution of the Republic of (2001). Malawi (1994). See also DM Chirwa Human 4 Semu (n 1 above) 82. Rights under the Malawian Constitution (2011). Impact of the African Charter and the Maputo Protocol in selected African states 151
‒ for example relating to fair disposition 2 Ratification of African Charter of property upon dissolution of marriage and the Maputo Protocol and by granting additional protections for gender based discrimination in Malawi ratified the African Charter on particular harmful cultural practices. 17 November 1989. The 1994 Constitu- tion was the first in the constitutional In 2015, Malawi was lauded for its history of Malawi to include a fully progressive stance on child marriage justiciable bill of rights.7 The 1994 when the Marriage Act was passed into Constitution also paved the way for the law. The Act purports to bring child ratification and domestication of several marriage to an end by setting the mini- international instruments, including the mum age for marriage at 18. However, Maputo Protocol which was ratified on under section 22 of the 1994 Constitu- 20 May 2005. The Constitution spells tion, girls and boys ages 15 to 18 may be out the process of ratification and married with parental consent. The domestication of international treaties Constitution also does not specifically and agreements. It provides that while prohibit the marriage of children under the President negotiates, signs, enters 15, but merely directs the government to into and accedes to international agree- ‘discourage’ such marriages. The new ments, he may delegate such power to marriage law also takes a very specific ministers, ambassadors and high stance on LGBTi relationships by commissioners.8 Members of the Cabi- decreeing that marriage is limited to net often assist the President in identify- persons of the opposite sex, where sex is ing and determining international further defined as the sex of the person agreements to be so concluded and rati- at birth. The Act also retains the status fied, and they hold a further duty to quo in terms of polygamy, with polyga- inform the Parliament. Any internation- my only being prohibited with respect to al agreement ratified by an Act of civil marriages. The laws criminalise Parliament shall form part of the law of harmful traditional practices ‒ but it is the Republic if so provided for in the almost impossible to find instances Act of Parliament ratifying the agree- where these laws have been enforced. ment.9 The laws prohibit harmful gender relat- ed practices but women who dare to The main government focal points bare their legs in a mini-skirt still face responsible for the implementation of all the wrath of street vendors and risk international agreements, including the being stripped and publicly humiliated. African Charter, are: the Office of the There is a strong disparity and definite President and Cabinet (OPC); the disconnect between the package of Ministry of Justice and Constitutional gender justice laws that have been Affairs; acting with the support of the promulgated (particularly in an effort to Malawi Human Rights Commission nationalise instruments such as the Afri- and the particular line Ministries work- can Charter and the Maputo Protocol) and the law as lived by the people of 7 Chirwa (n 6 above) 6. Malawi. 8 See generally art 89(f) of the Constitution of the Republic of Malawi, 1994. See also GH Flanz Constitutions of the countries of the world (2000) http://scholar.harvard.edu/files /bsimmons/files/APP_3.2_Ratification_rul es. pdf (accessed 5 September 2015). 9As above. 152 Malawi ing within that field. In the implementa- part of the law. In addition, binding tion of the Maputo Protocol, the focal international agreements entered into points are: the Ministry of Gender, Chil- before 1994 and customary international dren and Social Welfare; the Malawi law continue to form part of Malawian Human Rights Commission (MHRC) as law unless Parliament specifies other- the enforcement agency of the Gender wise.11 Equality Act 49 of 2012, and the Mala- wi Law Commission which is responsi- In respect to domestication of the ble for the review of all gender African Charter and the Maputo Proto- insensitive laws.10 col, the 1994 Constitution gave certain provisions of the Charter constitutional 3 Domestication status when it incorporated a justiciable Bill of Rights.12 Nkhata has explained the current legal position as follows: In Malawi, international law is both an indirect and a direct source of law. It is All international agreements entered into considered an indirect source of law in prior to the Constitution or after the that it aids the courts in constitutional Constitution are binding on Malawi only if interpretation. This role is prescribed they are not in conflict with any domestic under various provisions of the Consti- legislation. Thus international agreements, irrespective of when Malawi became a tution. Accordingly, the guiding princi- party to them, will be binding on Malawi ples of interpretation under section 11 as long as there is no domestic statute require the court to have regard to providing the contrary. As for customary ‘current norms of public international international law, this is binding on law’ where applicable. Section 13(k) Malawi as long as it does not contradict either the Constitution or any domestic calls upon the state to govern in accord- statutes. In applying international law in ance with the law of nations. Section 45 Malawi, courts will strive to ensure an allows derogation from the rights only interpretation that does not contradict the during a state of emergency, and only so Constitution or any domestic statutes, but far as such derogation is consistent with where this is not possible, domestic law will always prevail.13 Malawi’s obligations under internation- al law. Most notably, the Constitution Justice Redson Kapindu reiterated this stipulates that no restrictions or limita- interpretation, stipulating that: tions may be placed on the exercise of any rights and freedoms other than The position in Malawi is that where those prescribed by law, which are Malawi is a party to a treaty containing reasonable, recognised by international provisions that are relevant to the facts of a case at hand, it is peremptory that if a human rights standards and necessary in court is interpreting the Constitution, it an open and democratic society. must demonstrate that it paid due regard to that treaty. The courts, as an organ of the International law is also a direct state, will be bound not to act in a manner source of law. The Constitution stipu- that defeats the object and purpose of such lates that any international agreement a treaty in interpreting the Constitution. In cases where the treaty has been ratified by an Act of Parliament forms
11 Sec 211 of the Constitution. 10 Malawi’s initial and combined periodic state 12 Chirwa (n 6 above). report to the African Commission 71http:// 13 MJ Nkhata Malawi Country Report http:// www.achpr.org/files/sessions/56th/state-re www.icla.up.ac.za/images/country_reports/ ports/1-1995-2013/malawi_state_report_ malawi_country_report.pdf (accessed 8 Sep- eng.pdf (accessed 5 September 2015). tember 2015). Impact of the African Charter and the Maputo Protocol in selected African states 153
domesticated, it will obviously easily be the 2015 Marriage, Divorce and Family directly enforceable by the courts as part of Relations Act.16 domestic law.14
There is also the principle of interpreta- 4 Legislative and policy reform tion that obliges courts to interpret laws in such a way as to avoid creating The Malawi Law Commission has been breaches with international law or inter- engaged in several law reform projects national agreements.15 What is clear is that have a direct impact on gender that the judiciary must make every effort imbalance in the country. Within the to take judicial notice of all treaties that past decade several law reform reports are binding on Malawi. issued by the Commission have been developed into gender justice laws. Such The Constitution further establishes legislation includes the Marriage, three independent governance institu- Divorce and Family Relations Act tions to provide oversight functions and (2015), the Gender Equality Act (2013), ensure domestication of the rights and the Prevention of Domestic Violence the state’s obligations under the African Act (2006), the Trafficking in Persons Charter. These include the Law Act (2015), the Deceased Estates (Wills, Commission mandated to conduct law Inheritance and Protection) Act (2011), reform which includes systematic the Child Care, Protection and Justice review of existing legislation and devel- Act (2010), and the Disability Act opment of new legislation in accordance (2012). The Malawi Law Commission with applicable international and has pointed out that Malawi has an obli- regional instruments. The African Char- gation to meet international legal stand- ter is one of the instruments that are ards in the development of its municipal taken into account in law reform. laws. This was stated in the report on Where there are inconsistencies between the development of the Marriage, the African Charter and local legisla- Divorce and Family Relations Act of tion, it is addressed through a systematic 2015. The Commission’s report specifi- legislative and policy review approach cally cited CEDAW, the Beijing Plat- with the aim of gradually eliminating form for Action, the SADC Declaration inconsistencies. Courts also provide on Gender and Development, and the avenues for domesticating elements of Maputo Protocol as foundational to the the African Charter. Examples of legis- development of the Gender Equality lation developed through law reform Act (GEA) 2013.17 that have embraced precepts of interna- tional legal instruments include the The terms of reference for the devel- Gender Equality Act 2013 (GEA) and opment of legislation to prevent and
16 This information was sourced from Malawi delegation’s oral presentation and response 14 Paper presented at the Judicial Colloquium to the questions posed by the African on the Rights of Vulnerable Groups, held at Commission in respect of its periodic report Sunbird Nkopola Lodge, Mangochi, at the presentation of its state report during Malawi, 6 and 7 March 2014 http://www. the 56th ordinary session of the African southernafricalitigationcentre.org/1/wp-con Commission in Banjul, The Gambia. tent/uploads/2014/12/8.pdf (accessed 17 Malawi Law Commission (2006) ‘Report of 6 December 2015). the Law Commission on the review of laws 15 S Gloppen & FE Kanyongolo ‘Courts and on marriage and divorce’ http://www.law the poor in Malawi: Economic marginalisa- com.mw/docs/Report_on_the_review_of_ tion, vulnerability and the law’ (2007) 5 Inter- Marriage _and_Divorce_Act.pdf (accessed national Journal of Constitutional Law 258 259. 5 September 2015). 154 Malawi eliminate trafficking in persons included Programme 2004-2009.23 In 2005, then the Maputo Protocol as one of the inter- Chairperson of the Industrial Relations national instruments to be consulted.18 Court, Rachel Zibelu-Banda, made a In the development of the GEA, the direct connection between the ratifica- Maputo Protocol was relied upon as a tion of the African Charter and the key international instrument that has formulation of the National Aids Poli- had an impact on the government’s cy.24 However, the researchers could gender equality policy.19 Specific not find any evidence to show that sections of the GEA that reflect the government policies specifically reflect- protections under the Maputo Protocol ed the provisions of any general include the prohibition of harmful comments of the African Commission cultural practices and the clearly eluci- concerning women’s rights. dated sexual and reproductive health 20 rights. The GEA also imposes duties 5 Court judgments upon health service providers to respect the sexual and reproductive rights of According to Gloppen and Kanyongolo, service users without discrimination and the Malawian judiciary, which was to provide family planning services to marginalised during HKB's thirty years any person demanding them ‒ regard- of authoritarian rule, thereafter emerged 21 less of their marital status. Those as a surprisingly strong institution in an duties are backed up by penal sanctions otherwise weak political system.25 The ‒ a fine and three-year prison sentence ‒ two authors noted that the existing juris- for any health services officer who prudence bears little trace of the progres- 22 contravenes the provisions. sive promises contained in the letter of the law,26 pointing out the following:27 Policies and programmes have been put into place to give effect to Malawi’s As in many African constitutions, a wide international and constitutional obli- range of social rights is recognized in gations. Examples include the Malawi Malawi's Constitution as a series of princi- Growth and Development Strategy ples of national policy concerning such issues as gender equality, nutrition, health, 2006-2011, followed by the Malawi environmental rights, education, rights of Growth and Development Strategy the disabled, children, the elderly, and the 2011-2016; the National Gender Policy family. The principles are directive in 2000-2005; and the National Gender nature and not directly justiciable, but … [an] activist judiciary could thus give the directive principles significant jurispruden- tial force.
In his paper on the relevance of interna- tional law in judicial decision-making, 18 Malawi Law Commission (2011) ‘Law Commission Report No 22: Report of the Law Commission on the Development of Trafficking in Persons Legislation’ http:// 23 OHCHR ‘Committee on Elimination of www.lawcom.mw/docs/Report_on_the_De Discrimination against Women considers velopment_of_Trafficking_in_Persons_Legis report of Malawi’ http://www.ohchr.org/ lation.pdf (accessed 6 September 2015). EN/NewsEvents/Pages/DisplayNews.aspx? 19 Malawi’s initial and combined periodic state NewsID=9766&LangID=E#sthash.BLRm1 report (n 10 above). 8ma.dpuf (accessed 9 September 2015). 20 Sec 19 of the Gender Equality Act of 2013. 24 See Banda v Lekha [2005] MWIRC 44. 21 Sec 20 of the Gender Equality Act of 2013. 25 Gloppen & Kanyongolo (n 15 above). 22 Sec 20(2) of the Gender Equality Act of 26 Gloppen & Kanyongolo (n 15 above) 259. 2013. 27 As above. Impact of the African Charter and the Maputo Protocol in selected African states 155
Justice Redson Kapindu also points out ages the right to vote as a process where that:28 the will of the people is given and a citi- zen freely participates in the govern- Socio-economic rights litigation has thus ment of his country through elections far been generally confined to a narrow held by secret voting. In the matter of range of economic rights, namely, labour 32 rights, the right to work, the right to Jumbe and Another v Attorney General, economic activity and to pursue a Justice Katsala cited provisions of the livelihood and, to a very limited extent, the African Charter (and other international right to education. Many other key socio- instruments) that uphold fair trial rights: economic rights, such as access to housing, access to water, access to food, and others, Suffice to say that the right to a fair trial that could conceptually have been litigated and to be presumed innocent is recognized almost 20 years after the adoption of the almost in all civilized societies. This is Constitution, have remained judicially evidenced by its inclusion in major unexplored. international human rights documents. For example … The African Charter on While the courts have increasingly used Human and Peoples’ Rights, adopted on international law for the purposes of June 27 1981, in Article 7(1)(b) provides: interpreting constitutional rights, they Every individual shall have the right to have rarely directly used the provisions have his cause heard. This comprises: (b) of international treaties for holding the the right to be presumed innocent until 29 proved guilty by a competent court or state responsible. In the earlier case of tribunal. R v Chihana,30 the Supreme Court referred to the African Charter as being The provisions of the African Charter distinguishable from the Universal were applied directly in R v Cheuka & Declaration of Human Rights (UDHR) Others.33 In that case, Constable Joshua per Banda CJ: Cheuka and three other police officers were charged with manslaughter for Whereas the latter is part of the law of their involvement in the fatal shooting Malawi, the African Charter is not. of a lorry driver. The court applied the Malawi may well be a signatory to the Charter and as such is expected to respect provisions of the African Charter when the provisions of the Charter but until determining whether or not the use of Malawi takes legislative measures to adopt force in this particular instance it, the Charter is not part of the municipal conformed to international human law of Malawi and we doubt whether in rights standards. the absence of any local statute incorporating its provision the Charter would be enforceable in our Courts. In Malawi Telecommunications Limit- ed v Makande & Omar,34 the Malawi Post 1994, Justice Banda called upon Supreme Court of Appeal ruled that all provisions of the African Charter in international treaties required domesti- deciding the matter of Chakuamba and cation first before they could be relied Others v Attorney General and Others,31 upon as law in local courts. The court declaring that the African Charter envis- opined that in addition to the provision of the Constitution regarding domestica- 28 RE Kapindu ‘Courts and the enforcement of tion, one has to consider also the socio-economic rights in Malawi: Jurispru- language of the treaty and its provisions dential trends, challenges and opportunities’ (2013) 1 African Human Rights Law Journal 125 128. 29 Chirwa (n 6 above) 30. 32 [2005] MWHC 15. 30 [1993] MWSC 1. 33 [2009] MWHC 49. 31 [2000] MWSC 1. 34 Civil Appeal 2 of 2006 (unreported). 156 Malawi to determine whether it requires domes- case) have been complaining to the Trust, tication before it could be relied upon in and on the basis that the Trust’s research a domestic court. It was further has led to the conclusion that there is a problem, is not sufficient interest in the observed that in some cases, the provi- manner the existing authorities construe sions of treaties would not require that expression under Section 15(2) of the domestication because they are self- Constitution. We, therefore, find ourselves executing. in agreement with the observation of the Attorney General to the effect that the In Kishindo v Kishindo,35 Justice Applicant’s interest in the matter it has raised is hypothetical, moot, or academic, Dunstain Mwaungulu referred to article and that it indeed rather seeks the advisory 4 of the Maputo Protocol when distrib- opinion of the Court, than a judicial uting marital property after the dissolu- determination from it on an issue that is tion of the marriage. Mwaungulu truly in dispute. In the circumstances, we interpreted the relevant sections of the have no option but to dismiss the Applicant’s Originating Motion herein. Constitution in light of the Maputo Protocol and the UDHR.36 6 Awareness and use by civil Local courts have been called upon society to protect and promote the rights of women in innumerable other cases. An In 2014 and 2015, two civil society example is the 2009 matter of Trustees, organisations, the Centre for Human Women & Law (Malawi) Research & Rights and Rehabilitation (CHRR) and Education Trust v Attorney General37 Centre for the Development of People where the Applicant approached the (CEDEP), submitted shadow reports to Constitutional Court on a matter of the African Commission in response to public interest alleging that the existing Malawi’s Initial and Combined Periodic property law regime is inconsistent with Report. It is important to stress that the rights of equality and women’s prop- these are two of the civil society organ- erty rights as enshrined in the Constitu- isations from Malawi with observer tion. The case was dismissed for lack of status before the African Commission. legal standing. Per Justice Anaclet Chip- Two external organisations, the Centre eta: for Reproductive Rights and The Advo- cates for Human Rights also submitted In the absence of its having suffered a shadow reports to the African Commis- violation of its rights by the Court’s use or sion in respect of Malawi’s State Report. misuse of the legislation complained Despite the lack of significant against or cried for, and in the absence of a woman who has suffered this type of representation amongst those CSOs disadvantage being in the driving seat of with observer status, local organisations the intended public interest litigation, such regularly demonstrate their awareness of interest as the Applicant has claimed it has and engagement with the African for commencing this matter is all distant human rights system and these two and remote. Suing on the basis that the Trust Deed’s objectives coincide with instruments in particular. An illustration women’s rights in the Republican can be found in the 2011 Access to Constitution, and on the basis that women (not mentioned and not involved in the
35 [2014] MWHC 2. 36 As above. 37 [2014] MWHC 1. Impact of the African Charter and the Maputo Protocol in selected African states 157
Justice Report by Desmond Kaunda;38 behalf of a juvenile offender in the case or even the 2012 UNDP supported HIV of Republic v Mphembedzu.41 In response, and AIDS legal environment assessment Justice Chirwa stated as follows: which outlined the framework of rights and obligations that the African Charter Since we have the following constitutional imposes in the context of the legal provision in place, a provision which clearly requires the State to make adequate responses to the HIV/AIDS pandemic provision for its citizens coupled with the 39 in Malawi. provisions of the Prisons Act (Cap 9:02) This Court thus finds Counsel's reference to the provisions from the International 7 Awareness and use by lawyers Covenant on Economic, Social and and judges Cultural Rights (ICESCR), the African Charter on Human and Peoples' Rights The cases outlined in the previous (the African Charter) or (the Banjul sections demonstrate that there is a Charter); the United Nations Standard Minimum Rules for the Treatment of significant level of awareness of the Prisoners Principal 22(2) etc, for the African Charter and the Maputo Proto- purposes of this Application a futile col within the Malawian legal and judi- exercise. cial community. The cases also demonstrate the willingness to use Currently, the Malawi Law Society courts to address inequalities between (MLS) is about to embark on a year- men and women. Whilst Malawian long project to raise awareness about courts may be accused of not always human rights and laws especially taking full advantage of the African pertaining to addressing the needs of the Charter and the Maputo Protocol, most vulnerable groups such as children nevertheless the two instruments are and women. The activities that intricately woven into the tapestry of members are requested to be involved in Malawian jurisprudence. Even if specif- include participating in a radio ic provisions are not cited, the rights programme to discuss legislation protected under those provisions are designed to address social justice issues; well within the local legal vocabulary. contributing to a weekly column on the To cite a specific example, human rights various aspects of law that have impact trained lawyer, Mandala Mambulasa40 on social justice; and participating in sought to rely upon the African Charter mobile legal clinics in several districts especially in Zomba, Thyolo, Lilongwe, and other human rights instruments 42 when making a bail application on Mzimba and Blantyre.
38 Working paper by DM Kaunda ‘Expanding access to justice for the poor: Malawi’s search for solutions – A comparative analysis 41 [2011] MWHC 12. with other select informal justice systems’ 42 Malawi Law Society and Times Group have Research Partnership Programme, Danish entered into a partnership to launch a project Institute for Human Rights (December 2011) on human rights awareness and legal literacy. http://www.humanrights.dk/files/media/bi The project will entail popularising laws that lleder/udgivelser/desmond_report_ok.pdf impact on social justice issues, especially (accessed 9 September 2015). those that affect the vulnerable groups such 39 ‘UNDP Malawi Annual Report 2012’ http:/ as children, women and disabled persons. /www.mw.undp.org/content/malawi/en/ The project is being funded by the Open home/library/annual-reports/undp-malawi- Society Initiative of Southern Africa annual-report-2012/ (accessed 3 November (OSISA) and will be carried out by way of 2015). newspaper articles, radio programmes and 40 It should also be noted that Mandala mobile legal clinics. Tichezeza Malamulo Mambulasa also served as the president of Radio Program started on Wednesday the Malawi Law Society. 23 September 2015 on Matindi Radio 158 Malawi
Participants will focus on the Maputo Protocol is also carried out by Constitution and various pieces of social other state and non-state institutions justice legislation including the Gender such as the MHRC; the Malawi Law Equality Act, the Prevention of Domes- Commission; the National AIDS tic Violence Act, the Marriage Act, the Commission; the Malawi Law Society; Deceased Estates Act and the Traffick- Women and Law (WLSA) Malawi; the ing Act. The MLS is currently recruiting Women Lawyers Association; the Mala- and training its members for this wi Human Rights Resource Centre purpose. (MHRRC); the Council of Non-Govern- mental Organisations in Malawi 8 Higher education and academic (CONGOMA); the Malawi Economic writing Justice Network (MEJN); the Civil Liberties Committee; the Center for the There is only one certified law school in Development of People (CEDEP); the Malawi – the University of Malawi’s NGO Gender Coordination Network; Faculty of Law. The faculty covers the the Center for Human Rights and Reha- African Charter and the Maputo Proto- bilitation (CHRR); and the media to col in great detail in a number of courses mention just a few. that are offered. The Law of Human Malawian academics regularly Rights was taught as a full and separate engage with the African human rights course for the first time during the first framework in their writing and teaching. semester of the 2001-2002 academic One of the more significant works to year. Prior to this, human rights law emerge recently is Danwood Chirwa’s was taught as an integral part of Public book Human rights under the Malawian International Law. However, the Facul- Constitution, which takes stock of the ty adapted the subject into a separate human rights jurisprudence generated (and compulsory) course: ‘[D]ue to the by the new Constitution and the new rising awareness of human rights in judiciary in Malawi.44 In her paper on Malawi and elsewhere and the potential marriage and customary law, Lea contribution of human rights law to Mwambene also grappled with the role development, peace, justice and the that African human rights instruments quality of life.’43 The implementation of play in the local legal framework.45 human rights under the African Union Other authors and academics have system is tackled as a core aspect of the published on specific aspects of the Afri- course, and the course materials include can human rights system ‒ such as both the African Charter and the Mapu- Thoko Kaime’s work which focuses on to Protocol. the socio-legal aspects of the African Civic education about the protec- Charter on the Rights and Welfare of tions under the African Charter and the the Child. Other writings include books and papers by constitutional lawyer and lecturer Fidelis Edge Kanyongolo and 42 Station from 19:00-19:30; Malawi News – the works of legal experts such as Msai- Malawi Law Society News Column: ‘Legal literacy corner’ – English Column started on 3 October 2015; Chichewa Column also 44 Chirwa (n 6 above). started on the same day ‘Dziwaniza 45 L Mwambene ‘Marriage under African Malamulo’. See www.malawilawsociety.net customary law in the face of the Bill of (accessed 4 October 2015). Rights and international human rights 43 From the 2015 Syllabus: Law 340 ‒ The Law standards in Malawi’ (2010) 1 African Human of Human Rights. Rights Law Journal 78. Impact of the African Charter and the Maputo Protocol in selected African states 159 wale Chigawa, Matembo Nzunda, The MHRC was influential in the prepa- Garton Kamchedzera, Ngeyi Kanyon- ration of the state reports on the ICCPR golo, and so many others. Their publica- and the African Charter: participating in tions are relied upon to conduct training the two report compilation task forces in the Faculty of Law. Beyond academic that were set up by the Ministry of writing, these and other legal experts are Justice and Constitutional Affairs; as regularly invited to provide their exper- well as contributing the background tise in development projects across the research for the reports; and sending country; and, to provide commentary representatives as part of the team that on constitutional affairs in the media. In presented the report to the African this way, our key thinkers are participat- Commission.47 Malawi reported to the ing in educating not just our legal African Commission that officials from students, but the broader public, on the its National Human Rights Institutions relevance and content of Malawi’s inter- were some of the members of the national obligations. National Task Force which prepared its Periodic State Report. As at the time of 9 National human rights this research though, the African institutions Commission has not issued concluding observations on Malawi’s state report, The Malawi Human Rights Commis- hence our inability to assess whether sion plays a key role in monitoring the these institutions will follow up on the implementation of Malawi’s obligations implementation of such concluding under the African Charter and other observations. human rights instruments. The Consti- tutional responsibilities of the MHRC 10 State reporting include the following: At the 56th ordinary session of the Afri- To promote the harmonization of national can Commission held in April and May legislation and practices with international 2015, Malawi presented its initial and human rights instruments to which Malawi is a party and to promote and periodic state report, in accordance with monitor their effective implementation; to its obligation under article 62 of the contribute to the reports which Malawi is African Charter. In submitting a sepa- required to submit pursuant to treaty rate Part B report specific to the Maputo obligations and where necessary, express Protocol, Malawi became the first and, its opinions on the subject matter but always with due regard to its status as an to date, the only country to report sepa- independent national institution; to rately, as required by article 26 of the cooperate with agencies of the United Maputo Protocol, on progress towards Nations, the Organization of African meeting the obligations in the Maputo Unity, the Commonwealth and other Protocol. The report covers the period multilateral or regional institutions and national institutions of other countries from 1992 to 2013. The report did not which are competent in area of protection state any reason for the delay in submit- and promotion of human rights.46 ting a periodic report before 2013. Mala- wi’s Minister of Justice and a host of
46 See secs 129 to 131 of the Malawi 1994 Constitution. See also Malawi Human 47 Malawi Human Rights Commission ‘14th Rights Commission ‘About Us’ http://www. Annual Report of the Malawi Human Rights hrcmalawi.org/about.html (accessed 3 Nov- Commission’ (2013) http://www.hrcmalawi. ember 2015). org/2013ar.pdf (accessed 5 September 2015). 160 Malawi other officials including women led the African Commission in Malawi. delegation that presented the report. Malawians also face significant barriers in accessing justice ‒ even locally. This Part A of the report, which is on could also account for the low level of compliance with the African Charter, engagement with the communication ‘was prepared by a National Task Force procedure of the African Commission. chaired by the Ministry of Justice and Constitutional Affairs’.48 Part B that However, in Communication 64/ reports on compliance with the Maputo 92-68/92-78/92_8AR Krishna Achuthan Protocol was prepared while ‘Malawi (on behalf of Aleke Banda), Amnesty Inter- prepared her report under the Conven- national (on behalf of Orton and Vera Chir- tion on the Elimination of all forms of wa), Amnesty International (on behalf of Discrimination against Women Orton and Vera Chirwa) v Malawi, the (CEDAW)’.49 The composition of the African Commission reached a decision National Task Force, which prepared on the merits and declared the State of the report, includes members from Malawi in violation of articles 4, 5, 6 several government ministries and para- and 7 of the African Charter.51 Vera statals as well as representatives of civil Chirwa received compensation from the society. The report states as follows: government. The government also amended its legislation to outlaw Tradi- The Report was prepared by a National tional Courts such as the Southern Task Force chaired by the Ministry of Jus- Region Traditional Court that tried Vera tice and Constitutional Affairs. Members 52 of the Task Force included, Ministry of and Orton Chirwa. In Communica- Foreign Affairs, Office of the President and tion 64/92-68/92-78/92_7AR Krishna Cabinet, Ministry of Finance, Ministry of Achuthan (on behalf of Aleke Banda), Information, Ministry of Education, Min- Amnesty International (on behalf of Orton istry of Lands, Ministry of Internal Secu- and Vera Chirwa), Amnesty International rity, the National Assembly, the Judiciary, the Law Commission, the Human Rights (on behalf of Orton and Vera Chirwa) v Commission, the Ombudsman, Malawi Malawi, the African Commission not Police Service, Malawi Prison Service, the only found that there were violations of Anti-Corruption Bureau and National Sta- the provisions of the African Charter, it tistics Office. Civil Society organizations further referred the matter to the Assem- were also represented on the Task Force by the Human Rights Consultative Commit- bly of Heads of states and governments, tee, and the Public Affairs Committee.50 in line with its power under article 58 of the African Charter.53 11 Communications
Malawi is one of the state parties to the African Charter that has not had many 51 See generally ‘Merits’ http://case law. complaints submitted against it by indi- ihrda.org/doc/64.92-68.92-78.92_8ar/view/ viduals and NGOs. This reflects the en/#merits (accessed 7 September 2015). 52 L Louw ‘An analysis of state compliance generally low level of awareness about with the recommendations of the African the communication procedure of the Commission on Human and Peoples’ Rights’ unpublished LLD thesis, University of Pretoria, 2009 26. 53 See generally ‘Final decision’ http://case 48 Malawi’s initial and combined periodic state law.ihrda.org/doc/64.92-68.92-78.92_7ar/ report (n 10 above). view/en/#holding (accessed 6 December 49 As above. 2015); http://caselaw.ihrda.org/doc/64.92- 50 Malawi’s initial and combined periodic state 68.92-78.92_7ar/ (accessed 7 September report (n 10 above) 2. 2015). Impact of the African Charter and the Maputo Protocol in selected African states 161
Available records further show that [P]romote the African Charter and to a few other communications against exchange views and information on the Malawi were declared inadmissible.54 implementation of the African Charter by the Republic of Malawi. Furthermore, the These include Communication 42/90 Mission was intended to raise awareness International PEN v Malawi and Commu- and visibility of the African Commission nication 19/88 International PEN v Mala- and its functions among the relevant wi and three Others.55 government departments and institutions and in the civil society, and generally to encourage a closer relationship between 12 Promotional visits the African Commission and the government and between the African 57 Dr Vera Mlangazuwa Chirwa, then the Commission and civil society in Malawi. African Commission’s Special Rappor- The delegation met with members of teur on Prisons and Conditions of key democratic institutions across the Detention in Africa, carried out a country including the dean of the only Mission on Prisons and Conditions of accredited law school at the University Detention in Malawi in 2001. Dr Chir- of Malawi in Zomba. The delegation wa and her team visited places of deten- noted that: tion in Malawi from 17 to 28 June 56 2001. The objective of the visit was to The efforts that Malawi is making in assess and document the conditions of fighting corruption and all the steps in the detention in Malawi. This visit is a direction of realising for its people, the particularly poetic one since Dr Chirwa rights enshrined in the African Charter on Human and Peoples’ Rights. The spent 12 years as a political prisoner democratic space created by the under HKB. On Christmas Eve 1981, introduction of multiparty politics, the she and her husband were arrested and creation of institutions of good governance charged with attempting to overthrow such as the Malawi Human Rights the government. The Chirwas were Commission, the Anti-Corruption Bureau, the Malawi Electoral Commission and a sentenced to death in 1984 and she free and vibrant press are all pointers in the remained in prison until 24 January right direction and the government should 1993 when the country was caught up in be encouraged to strengthen these the political transition to multiparty institutions.58 democracy and HKB ordered her release on humanitarian grounds. 13 Factors that may impede or enhance the impact of the A promotional visit of the African African Charter, Maputo Commission to Malawi was conducted Protocol and African on 7 April 2008. The purpose of the Commission Mission was to As noted above, Dr Vera Chirwa was a member of the African Commission 54 See ‘Malawi’ http://caselaw.ihrda.org/ (November 1999-November 2005) and country/malawi/ (accessed on 7 September 2015). formerly Special Rapporteur on Prisons 55 As above. 56 African Commission on Human and Peoples’ Rights ‘Malawi: Missions on 57 African Commission on Human and Prisons and Conditions of Detention, 2001: Peoples’ Rights ‘Press Release on the Prisons in Malawi’ http://www.achpr.org/ Promotional Mission to Malawi’ http:// files/sessions/30th/mission-reports/Malawi www.achpr.org/press/2008/04/d59/ /achpr30_misrep_specmec_priso_malawi_ (accessed 3 November 2015). 2001_eng.pdf (accessed 9 September 2015). 58 As above. 162 Malawi and Conditions of Detention in Africa. ested and wanted to help was that whilst She occupies a powerful space in Mala- they were aware of both instruments, wi's history, particularly as a woman ‒ they simply did not know enough about she is the first female lawyer in Malawi. the African Charter or the Maputo She was instrumental in Malawi’s inde- Protocol to feel comfortable about pendence story; and she was imprisoned answering the questions.60 for fighting for democracy. She estab- lished one of the oldest gender justice All but one of the respondents was organisations in the country ‒ Malawi college educated; 11 identified as Centre for Advice, Research and Educa- female, and four as male. Four of the tion on Rights (Malawi CARER) and respondents had never seen any infor- she wrote a book about her incredible mation about either the African Charter life. Dr Chirwa continues to be celebrat- or the Maputo Protocol. Most notably, ed as a freedom fighter and an ardent the majority of the respondents felt that advocate of gender equality. It is almost the African Charter and the Maputo impossible to quantify the role that Dr Protocol have had little to no impact in Chirwa’s presence on the African Malawi. Several respondents cited the Commission has played on the impact prevailing context of gender inequalities of the African Charter in Malawi. That as an obstacle to the implementation of being said, she is very present in the both the African Charter and the Mapu- memory and imagination of the coun- to Protocol. Respondents also pointed try. She fought the tyrannies of colonial- out that there was a general and wide- ism and dictatorship ‒ political systems spread lack of awareness amongst that tread upon the freedoms embodied Malawians: in the African Charter and the Maputo Protocol. [T]he conventions are impeded by a lack of publicity and general public awareness. More awareness would enable people to The authors conducted an anony- know their rights and demand them. The mous self-administered survey with a impact of the conventions are enhanced by cross-section of Malawians to gauge a willingness on the part of judges and law their awareness and impressions of the makers to accept and apply the provisions African Charter and the Maputo Proto- of the charter. It is also enhanced by the emergence of prominent women in col. The electronic survey was widely organizations such as the AU, whose disseminated online through a web link presence generally bring issues of equality posted on social media and targeted to the fore of conversations on rights.61 individual emails sent to networks. The Facebook metrics show that the survey The results of the survey, even the reached 19 231 people in Malawi and general unwillingness of people to that 128 people followed the link.59 engage with the questions, lend support After three weeks, only 15 people to a position that the authors hold: that completed the survey. Personal commu- the existence and impact of these instru- nications from people who were inter- ments is predominantly evident to those who work on social justice issues. Whilst most provisions have been given 59 The surveymonkey.com link was publicised through targeted Facebook advertising. The legal effect through the Constitution, parameters were that the audience may: be of legislation and policies, their effect on any sex; be in Malawi; be aged over 18; and that they are interested in the African Union, human rights and a long list of directly 60 The survey had ten questions. related topics. 61 Respondent #10 (2 September 2015). Impact of the African Charter and the Maputo Protocol in selected African states 163 people’s lived realities is still mythical. The barriers and challenges that the majority of Malawians face in accessing justice keep the promises of the African Charter and the Maputo Protocol beyond reach.
The authors believe that there is hope though. The enduring human rights challenges across Malawi exist within a very particular context: a coun- try that is generally free and a populace that jealously guards its political free- dom; the shifting demographics of Malawi; the borderless ‘digiverse’ where information that matters must be 140 characters or less; and the widespread connectivity of all Malawians – rural and urban – via mobile phones and particularly social media applications such as Facebook, WhatsApp and Twit- ter. The authors suggest that the coinci- dence of these social realities can radically shift the way that the region is connected and regional agreements like the African Charter and the Maputo Protocol are consumed. Perhaps one day soon the #AfricanCharter and #MaputoProtocol will be trending. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN MAURITIUS
Meskerem Geset Techane* Roopanand Mahadew**
4 1 Introduction model, was adopted upon independ- ence. Despite a number of amendments, After a long period of French and Brit- the 1968 Constitution has subsisted over ish colonial rule respectively, Mauritius the years and the fundamentals have attained its independence in 1968 while remained unchanged since independ- the British Monarchial regime under the ence, with the exception of a 1992 Queen of England was maintained. A major amendment establishing the Republic was established in 1992. The Republic, which revoked the British Republic of Mauritius is a parliamentary monarchial regime. Having evolved multi-party democracy with the Presi- under both colonial systems, the legal dent as the head of the state and the system of Mauritius manifests a cross- Prime Minister as the Head of Govern- breed of laws with French and British 5 ment.1 The National Assembly is a origin. Substantial laws concerning unicameral legislative body encompass- society were of French inspiration while ing members democratically elected the procedure and court systems that every five years.2 applied those laws are based on the English legal system, thus illuminating The supreme law of the land,3 the the hybrid nature of Mauritian law.6 first written and comprehensive Consti- tution based on the Westminster Mauritius has entrenched a justi- ciable Bill of Rights under Chapter II of the Constitution in terms of which all the fundamental rights and freedoms of * LLM HRDA (Pretoria); doctoral candidate, individuals, which derive substantial Human Rights Center, University of Padova; inspiration from the European Conven- and formerly Deputy Executive Director of the Institute for Human Rights and tion of Human Rights (ECHR), have Development in Africa (IHRDA). ** LLM HRDA (Pretoria); doctoral candidate, Faculty of Law, University of Western Cape; full time academic at the Department of Law, 4 PR Domingue ‘Legal method and Mauritian University of Mauritius; and former legal legal systems’ unpublished paper, University researcher with the African Committee of of Mauritius, 2011 34. Experts on the Rights and Welfare of the 5 Domingue (n 4 above). Child. 6 V Glover ‘Legislative drafting in Mauritius: 1 See secs 28, 59 & 61 of the Constitution of A developing discipline’ (2011) 21 http:// the Republic of Mauritius (the Constitution). www.opc.gov.au/calc/docs/Loophole_pape 2 Sec 31 of the Constitution. rs/Glover_Aug2011.pdf (accessed 8 August 3Sec 2 of the Constitution. 2015).
165 166 Mauritius been inscribed.7 Courts are bestowed is also acclaimed for its democratic insti- with the mandate to interpret and tutions and independent judiciary.13 enforce provisions of the Constitution Elections are generally free and fair,14 and constitutional questions of a and security forces are under the substantial nature are to be settled by command of the authority rendering the the Supreme Court, the highest judicial country politically stable and peaceful.15 authority in the country,8 save for the constitutional right of appeal to the Nevertheless, such a noteworthy Privy Council of the United Kingdom.9 record is not without flaws. Arbitrary The broader legal system in Mauritius arrests and detention, abuse of suspects also embodies an array of other laws for and detainees by the police force and the protection and enforcement of breach of fair trial safeguards are fundamental rights and freedoms. amongst prevalent cases in Mauritius. It Mauritius is a party to notable inter- is reported that police have been detain- national human rights instruments and ing people on mere suspicion and that reports to and cooperates with treaty many high profile cases have been bodies.10 Encompassing other reporting submitted for prosecution based on 16 obligations under international treaties, erratic confessions. Those confessions Mauritius has successfully fulfilled its have, in some cases, been attained by submission for both the African Peer way of violence and duress resulting, for Review Mechanism (APRM) and the instance, in the unfortunate deaths of 17 Universal Periodic Review (UPR).11 It some detainees. Despite relatively was highlighted by the APRM Panel improved conditions of detention, the that Mauritius has made laudable efforts problem of drug abuse in Mauritius' in the areas of health, education, corpo- prisons still loiters as a crucial cause for rate and social governance.12 Mauritius concern. Recent visits by local stake- holders such as the press, the Mauritian National Human Rights Commission (NHRC) as well as the United Nations Office of Drugs and Crime have gener- ally ruled out prison conditions as being 7 Sec 17 of the Constitution provides remedy by the Supreme Court where any individual alleges infringement of her/his rights enshrined in the Bill of Rights. 8 Sec 84 of the Constitution. 9 Sec 81 of the Constitution. 10 Mauritius ratified the ICCPR, ICESCR, CERD, CEDAW, CAT, CRC, ACRWC (1992), ACHPR (1998) and the African 13 See R Kasenally ‘Chapter 8: Mauritius’ in Court’s Protocol (2003). See Ministry of D Kadima & S Booysen (eds) Compendium of Foreign Affairs ‘List of treaties and Elections in Southern Africa 1989-2009 (2009). conventions’ http://foreign.govmu.org/Eng 14 M Singh ‘Election and democracy: Lessons lish/conventons/Pages/List-of-Conventions- to be learnt from Mauritius’ (2012) 1 https:/ and-Treaties.aspx (accessed 3 September /www.academia.edu/7792959/Election_an 2015). d_Democracy_Lessons_to_be_learnt_from_ 11 See African Peer Review Mechanism Country Mauritius_A_reporton_the_backdrop_of_ve Review Report No 13 (2010) http://www. xatious_election_of_Manipur_India_ aprm-au.org/admin/pdfFiles/CRR_No13- (accessed 8 August 2015). Mauritius_EN.pdf (accessed 23 August 15 As above. 2015); see UPR Info http:www.upr-info.org 16 US Department of State ‘Country report on (accessed 20 September 2011). human practices for 2014’ (2014) 6 http:// 12 See ‘African Union Peer Review Report photos.state.gov/libraries/mauritius/882940 lauds Mauritius for best practices’ Africa /hrr_2015/mauritius_2014_human_rights_ Money http://africamoney.info/african-uni report.pdf (accessed 8 August 2015). on-peer-review-report-lauds-mauritius-for- 17 ‘The very controversial Mr Raddhooa’ best-practices/ (accessed 18 August 2015). lexpress 24 January 2006 8. Impact of the African Charter and the Maputo Protocol in selected African states 167 decent.18 Freedom of the press is also children.23 The issue of rape has not fully implemented or respected, become another subject of serious especially by political leaders.19 The concern. Despite criminal laws which country has also recently been struck by criminalise rape with stiff sentences,24 it some corruption cases, such as the Brit- is contended that rape is rampant but ish American Insurance Scandal and the not always reported to the police for fear corruption cases involving the former of social stigmatisation.25 It must be Prime Minister.20 There are rampant noted however that spousal rape is yet cases of violence and discrimination to be criminalised. The Protection from against women, sexual abuse of children Domestic Violence Act of 1997 provides and discrimination against people living for various protective measures, despite with HIV/AIDS.21 The Ministry of alleged ineffective implementation of Gender, Child Development and Fami- them.26 On the progressive side, Mauri- ly Planning (Ministry of Gender) in tius has recently legalised abortion in Mauritius reported that women and specific circumstances (such as rape, children in the country continue to be incest, and danger to the life of the baby vulnerable to violations and underlined, or the mother).27 in particular, that the frequency of domestic violence is disquieting.22 The There is no defined structure or African Commission has also echoed government institution or office respon- concern over the pervasiveness of sible for coordinating Mauritius’ violence against, and discrimination of, responses and reporting obligations to international human rights bodies. The Attorney General’s office, the National 18 United Nations Office of Drugs and Crimes Human Rights Commission (NHRC) ‘Counter piracy programme: Support to the trial and related treatment of piracy suspects’ and relevant ministries will normally (2013) 6 https://www.unodc.org/documents contribute. For instance, the Attorney /easternafrica/piracy/UNODC_Brochure_ Issue_11_wv.pdf (accessed 8 August 2015). General’s office has a division called 19 For example, the popular case of Nitin Chin- International Affairs and Mutual Legal ien, a journalist from the Mauritius Broad- casting Corporation was arrested and Assistance Division which provides accused of violating the Information and legal advice to the government and its Technologies Authority Act and threatening the former Prime Minister Navin Ram- agencies on all aspects relating to inter- goolam until the Director of Public Prosecu- national law. There is also the Multilat- tions dropped all the charges against him due to a lack of evidence. See ‘Nitin Chinien appears in court: His lawyer “not informed”’ Business Mega (2013) http://business. 23 African Commission’s Concluding Obser- mega.mu/2013/11/21/nitin-chinien-appear- vations and Recommendations on the 2nd, court-his-lawyer-not-informed/ (accessed 3rd, 4th and 5th periodic reports of the 8 August 2015). Republic of Mauritius (Concluding 20 ‘Changing fortunes of Mauritius’ ousted Observations) (2009), para 43 & 46 http:// leaders’ Aljazeera 17 March 2015 http:// www.achpr.org (assessed 15 August 2011). www.aljazeera.com/indepth/features/2015 24 A term of imprisonment up to 20 years and a /03/changing-fortunes-mauritius-ousted-lea fine not exceeding MUR 200,000 (Criminal ders-150309095143234.html (accessed Code, art 249). 8 August 2015). 25 K Kinnear Women in developing countries: A 21 US Department of State (n 16 above) 4. reference handbook (2011) 210. 22 See ‘A study of the extent, nature and costs 26 Such as the Protection Order, the of domestic violence in Mauritian economy’ Occupation Order and the Tenancy Order. (2010) & ‘A situational analysis of women Section 8 of the Act also provides for a fine and children in the Republic of Mauritius’ which is double upon a second conviction (2003) in MG Techane ‘Where is the African under the Act. Charter? Assessing the impact of the African 27 RA Mahadew ‘Mauritius decriminalizes Charter on Human and Peoples’ Rights in abortion in certain circumstances – Lessons Mauritius’ unpublished LLM dissertation, from the travaux preparatoires’ (2015) 36 University of Pretoria, 2011 20. Statute Law Review 160. 168 Mauritius eral Political Directorate of the Ministry consultation with the Attorney Gener- of Foreign Affairs which is responsible al’s Office and other stakeholders. The for bilateral and multilateral discussions Attorney General’s Office then carries and negotiations with international out a compatibility review whereby the governmental organisations on a range implications of the specific treaty will be of issues including human rights. Final- assessed in the light of domestic poli- ly, the Human Rights Unit under the cies, laws, and Mauritius’ international Prime Minister’s Office is charged by obligations.30 The Cabinet will thor- Cabinet with inter-ministerial monitor- oughly deliberate upon the request and ing and coordination of human rights may pass it to Parliament for approv- related activities, which by default al.31 Once the request for ratification is include preparation of periodic reports endorsed by Parliament, the Ministry of under international treaties.28 Foreign Affairs will deposit the instru- ment of ratification with the relevant 32 2 Ratification of the African international body. Charter and the Maputo A study conducted in 2011 attempt- Protocol ed to explore the ratification history of the African Charter but had little The African Charter was signed by success in accessing primary sourc- Mauritius on 27 February 1992 and rati- es.33 In spite of such impedi- fied on 19 June 1992. Mauritius signed ments, government officials share a the Maputo Protocol on 29 January firm opinion that ratification of the Afri- 2005. However, more than ten years can Charter was galvanised by the senti- after becoming a signatory, Mauritius ment to reinforce the state’s has still not ratified the Protocol. commitment to human rights, bearing Ratification of international instru- in mind that Mauritius already had in ments in Mauritius is the responsibility place a democratic Constitution that fully recognises several fundamental of the executive and Parliament. This 34 study found no specific laws or regula- rights and freedoms. tions in place that clearly define the Reports show that ratification of the roles and responsibilities of these two Maputo Protocol is underway,35 organs of government in the ratification though it is difficult to note any tangi- process. International instruments can ble progress on ratification over the only have significance in Mauritius if they are endorsed by Parliament upon 29 the request of relevant ministries. 30 Interview with G Chitto, Principal State Accordingly, initial considerations are Counsel, Attorney General’s Office, 18 August 2015. made by the concerned ministry in 31 See interview with Cader (n 28 above). 32 Interviews with NP Ponnisamy, Second Secretary, Ministry of Foreign Affairs, 28 A Cabinet decision adopted in 2008. See 18 August 2015. interview with BR Cader, Acting Principal 33 MG Techane ‘The impact of the African Assistant, Prime Minister’s Office, Charter and the Women’s Protocol in 5 September 2011, cited in Techane (n 22 Mauritius’ in The Impact of the African Charter above) 45. and the Women’s Protocol in selected African 29 Multilateral Political Directorate of the states (2012) 92. Ministry of Foreign Affairs http://foreign. 34 Interviews (n 30 & 32 above). govmu.org/English/AboutUs/foreign/Pag 35 See Mauritius Country Report on the AU es/Multilateral-Political-Directorate-(Multil Solemn Declaration on Gender Equality in ateral-Organisations).aspx (accessed Africa, Comment 9: Implementation of the 18 August 2015). Solemn Declaration on Gender Equality In Impact of the African Charter and the Maputo Protocol in selected African states 169 years. Notwithstanding assertions from 3 Domestication of the African government authorities as to the Charter and the Maputo absence of any obstacles to ratifica- Protocol tion,36 the long delay begs critical questions. The African Commission The Constitution i s s i l e n t o n the has also highlighted its concern that status of international treaties signed Mauritius has still not ratified the 37 and ratified by the government, except Maputo Protocol. Yet, the question by providing for the supremacy of the of ratification has not been tabled Constitution, with the effect that any before cabinet. inconsistent law shall be null and void.40 It logically follows that the Mauritius could presumably be provisions of the African Charter and playing the card of ‘compliance without the Maputo Protocol are applicable only ratification rather than ratification with- to the extent that they are consistent out compliance’.38 As a state party to with the Constitution.41 CEDAW, Mauritius arguably does provide for a decent and internationally The African Charter has not been acceptable set of legal rights and protec- incorporated into the domestic laws of tion to women, thus breeding a tenden- Mauritius either by explicit embodi- cy of reluctance towards ratifying the ment in the Constitution or by an Act of Maputo Protocol. No doubt, such a Parliament. As is the norm in any dual- stand is against empirical evidence ist state,42 international human rights showing that ratification of legal instru- treaties are not enforceable by national ments breeds more positive effects on 39 courts in Mauritius unless incorporated human rights. into domestic law.43
The civil and political rights enshrined in the Constitution to a large extent tally with the African Charter provisions notwithstanding a few omis- sions or deviations. On the contrary, the 35 Africa: First report by all AU member states particular norms of the Maputo Proto- for consideration at the January 2007 summit to be held in Addis Ababa, Ethiopia http://www.africaunion.org/root/au/confer 40 Sec 2 of the Constitution. ences/past/2006/October/WG/doc.htm 41 M Killander & H Adjolohoun ‘International (accessed 4 September 2011). See also law and domestic human rights litigation in NHRC Report (2006) para 189 in Techane Africa: An Introduction’ in M Killander (ed) (n 33 above) 93. International law and domestic human rights 36 Interviews with senior officials of the litigation in Africa (2010) 14. Ministry of Gender, inTechane (n 33 above) 42 The dualist theory provides that 93. It was also reported that the Attorney international law and domestic law are General’s Office advised the absence of separate legal systems; thus, international any impeding legal considerations to norms require a process of incorporation to ratify the Maputo Protocol (See Mauritius form part of domestic law and have a force of Country Report n 35 above). law municipally. See G Gaja ‘Dualism – A 37 African Commission’s Concluding Observa- review’ in J Nijman & A Nollkaemper New tions (n 23 above) para 47. perspectives on the divide between national & 38 Resonates the position of the United States international law (2007) 52 cited in Killander when it comes to the ratification of the (n 41 above) 11; see also F Viljoen CEDAW; see W Schulz The future of human International human rights law in Africa (2007) rights: The US Policy for a new era (2008) 109. 535-536 & J Dugard International law: A 39 OHCHR ‘International Human Rights South African perspective (2005) 61. Laws’ http://www.ohchr.org/EN/Profes 43 R Lallah ‘The domestic application of sionalInterest/Pages/InternationalLaw.aspx international human rights norms’ (1988) 2 (accessed 8 August 2015). Mauritius Law Review 216. 170 Mauritius col are generally absent in the Constitu- respectively, the Bill of Rights falls short tion. Though the relevance of the of expressly recognising the right to existing positive ordinary laws cannot integrity and security of the person as be dismissed,44 Mauritius’ commitment an autonomous right. Most critical is under the African Charter to ensure the that judicially sanctioned punishments elimination of all forms of discrimina- for criminal offence constitute justified tion against women and to confer exceptions to the protection of the right special protection to women and chil- to life.49 The African Commission dren is not constitutionally rooted. This recommended amendment of the provi- may be inconsistent with the African sions of the Constitution that license the Charter.45 death penalty;50 though this recommen- dation has not been complied with so Despite the entrenchment of the far. Despite outlawing torture, inhu- principles of equality and non-discrimi- mane and degrading punishment and nation in sections 3 and 16 of the treatment, the Bill of Rights provides Constitution, the grounds for discrimi- dangerous exceptions in cases of nation are provided exhaustively and punishment authorised by law, contrary Mauritian courts have also attached to the absolute protection under the 46 strict adherence to these grounds. African Charter. Except for the implicit However, the Equal Opportunities Act element of dignity in relation to the (2008) has expanded the grounds of prohibition of degrading treatment and non-discrimination, by adding two new punishment, the right to dignity is also grounds, namely sexual orientation and blatantly absent from the Constitution impairment. Further, section 16 of the as a self-standing right. Constitution, which deals with the right to non-discrimination, does not The right to the recognition of one’s cover laws concerning foreigners and legal status, a very important right personal status which may license expressly provided for both in the Afri- personal status laws that discriminate can Charter and the Maputo Protocol, is women and children in contradiction to not protected under the Constitution of the Maputo Protocol.47 This limitation Mauritius.51 The Bill of Rights also has to section 16 may also justify the lack of no provisions conforming with article adequate protection for migrant workers 13 of the African Charter on the right as well as the absence of law on granting to participate in government, and the asylum or refugee status.48 right of equal access to public property and service. It is noted that the sections While guaranteeing the rights to life of the Constitution dealing with the and liberty under sections 4 and 5 election of members of the National Assembly provide for the rights to be 52 44 For example, the Equal Opportunities Act 42 elected and to vote, confining political of 2008. participation to the National Assembly 45 Techane (n 22 above) 20. 46 See for example Jeekahrajee v Registrar Co- which is a rather restrictive scope of operatives (1978) MR 215 and Société United political participation. Docks v government of Mauritius (1976) MR 81. 47 This is contrary to arts 6, 7 and 21 of the Maputo Protocol which provides states’ duty to 49 See sec 4(1) of the Constitution. ensure the equality and non- discrimination 50 See Concluding Observations (n 23 above) of women in marriage, separation, divorce para 59. and annulment of marriage and inheritance. 51 See arts 5 and 3 of the African Charter and 48 See Concluding Observations (n 23 above) the Maputo Protocol respectively. para 40-41. 52 See sec 33 and 44 of the Constitution. Impact of the African Charter and the Maputo Protocol in selected African states 171
The economic, social and cultural During the examination of periodic rights guaranteed in the African Charter reports to the United Nations Commit- have not been enshrined under the tee on Economic, Social and Cultural Constitution of Mauritius. A range of Rights (CESCR), however, Mauritius fundamental rights, such as the rights to was questioned as to when it intends to work, health, education, family and enshrine socio-economic rights in its culture, amongst others, do not enjoy Constitution.55 Irrespective of such a any constitutional protection. I n a d d i - legislative framework, socio-economic tion to the exclusion of the rights of rights should be guaranteed as justicia- women and children, the aged and the ble constitutional rights, rather than disabled are not given special constitu- legislative prerogatives, as required by tional protection. Such critical omis- the African Charter. sion is attributable to the Bill of Rights’ background of direct inspiration The distinct and intrinsic compo- by the ECHR which does not have nent of the African Charter, ‘peoples’ 56 comparable provisions dealing with rights’, are not recognised in the socio-economic and cultural rights. Mauritian Bill of Rights. Without over- This fact notwithstanding, ratification emphasising the significance of the prin- of the African Charter should have ciple of ‘equality of all peoples’ to the stimulated constitutional amendments multi-cultural society of Mauritius, towards incorporation of justiciable the African Charter also emphasises the socio-economic rights. essentiality of the right to development; the right to economic, social and cultur- It is worth mentioning that there is al development and the right to a satis- existing domestic legislation that factory environment, amongst others. provides legal protection for socio- These rights are very important to the economic rights.53 This legislation, Mauritian population and should be coupled with Mauritius’ welfare state incorporated into the Constitution. system, may simply imply that there is ample protection of socio-economic and 4 Legislative and policy reforms cultural rights and in effect, explain the lack of enthusiasm towards entrenching A number of new laws and legal 54 them as constitutional guarantees. reforms, including several constitutional
53 For example, (a) on the right to work: Employment Rights Act 33 of 2008, the Equal Opportunities Act 42 of 2008, Occupational Health and Safety Act 28 of 54 incorporation of socio-economic rights in the 2005, Training and Employment of Disabled Bill of Rights; yet to be considered by the Persons Act 9 of 1996, National Pensions government. See Techane (n 33 above) 93. Act 44 of 1976; (b) on the right to health: 55 See CESCR ‘Examination of the second, Public Health Act Cap 277 of 1925, Public third and fourth periodic reports’ (2010) 44th Health Amendment Bill 30 of 2006, the HIV Session of the CESCR (7 May 2010) http:// and AIDS Act 31 of 2006; National Council tbinternet.ohchr.org/Treaties/CESCR/Shar for the Rehabilitation of Disabled Act 37 of ed%20Documents/MUS/INT_CESCR_ST 1986; (c) on the right to education: The A_MUS_44_11146E.pdf (accessed Education Act (RL2/6031957) & The 23 August 2015). Education (Amendment) Act 33 of 1977; 56 Arts19-24 cover a range of peoples’ rights (d) on social welfare: Social Aid Act 2 of including the right to development, the right 1983. to existence, to self-determination, to freely 54 It should be noted that the Law Reform dispose of their wealth and natural resources, Commission (LRC) and National Human the right to national and international peace Rights Commission (NHRC) eventually and security, and the right to a general submitted recommendations for the satisfactory environment. 172 Mauritius amendments,57 have come into effect in jurisdictions.61 Similarly, LRC’s Mauritius since ratification of the Afri- proposed reforms on criminal law as can Charter. A few examples include well as property rights have not inte- the Protection from Domestic Violence grated relevant provisions of the African Act (amendments) (2004, 2007, Charter or instruments of the African 2011), Equal Opportunities Act Commission.62 (2012), Combating of Trafficking in Persons Act (2009), Revision of the Notwithstanding the African 63 Civil Code (2011), and the Criminal Commission’s resolution that urges Code Amendment (2012). Notwith- states to take steps for the integration of standing that the adoption or revision of provisions of the African Charter in these laws derived inspiration from rele- their national laws, there is not much vant international human rights instru- deliberate effort shown by Mauritius to ments, none has shown a clear influence accomplish this. of the African Charter or the Maputo Protocol.58 There is hardly any evidence show- ing that the African Charter and the Compatibility reviews are Maputo Protocol have influenced the commonly conducted by the Attorney formulation or reform of specific poli- General’s Office when a new bill is cies in Mauritius. The Gender Policy proposed, with the view to verify a bill's (2008) refers to the Maputo Protocol as conformity with the Constitution, inter- one of the guiding principles of the poli- national treaties, domestic laws and cy framework, though CEDAW is Concluding Observations of treaty given a position of primacy as the bodies.59 The African Charter and the main instrument that inspired the poli- 64 Concluding Observations of the African cy. This may be plausible considering Commission, amongst others, reportedly the fact that the Maputo Protocol is not constitute imperative considerations in yet ratified. The National Human such reviews. Rights Action Plan (NHRAP 2008) makes no reference to the African Char- The Law Reform Commission ter or the Maputo Protocol. None of the (LRC) is seen to only make use of legal programmes in the NHRAP, including instruments from the United Nations or its recent revision, incorporated specific the European regional system and none components for the promotion and from the African system.60 For exam- implementation of the African Charter ple, constitutional amendments seeking to include socio-economic rights in the Bill of Rights proposed by the LRC 61 The LRC proposal derived major inspiration from the Constitution of South Africa, and were not inspired by the African Charter the Draft 2006 Constitution of Trinidad and but by international treaties from other Tobago. See LRC Issue Paper (2010)4-5; Techane (n 22 above) 29. 62 See LRC ‘Issue Paper – Droit des biens’ http://lrc.govmu.org/English/Documents/ Reports%20and%20Papers/34%20reform- codes.pdf (accessed 3 September 2015). 63 African Commission Resolution on the 57 For example, secs 5(3), 8,10 & 16 of the Integration of the Provisions of the African Constitution. Charter on Human and Peoples’ Rights into 58 Techane (n 22 above) 28. National laws (1989). 59 Interview with Chitto (n 30 above). 64 See National Gender Policy Framework 60 LRC of Activity Reports (1997-2011); (2008). It is noted that the Maputo Protocol Issue Papers & Newsletters (2007-20011) is merely listed amongst other several reviewed in Techane (n 22 above) 29. relevant documents. Impact of the African Charter and the Maputo Protocol in selected African states 173 or the Maputo Protocol. The same can Previous studies based on a system- be asserted concerning the National atic review of judgments delivered after Action Plan to End Gender-Based ratification of the African Charter, Violence (2012-2015), that is currently corroborated with personal statements being implemented, and the National from judges, counsel as well as court Action Plan on Family, that was imple- officers69 suggest that interpretive guid- mented in 2015, and the National ance is taken mainly from French legal Action Plan to Combat Domestic doctrines and English case-law. The Violence, as inspired by CEDAW, ECHR and case law of the Euro- which also resulted in the creation of the pean Court stands as the most Victim Empowerment and Abuser frequently referenced human rights trea- Rehabilitation Policy.65 ty and human rights case law. In the same vein, it is common to come 5 Court judgments across cases that make similar reference either directly or by reference to the International law may enjoy judicial Privy Council’s decisions which are also application in domestic courts either by highly influenced by the European 70 way of direct enforcement or reference Court’s jurisprudence. Some deci- as an interpretive guide.66 The question sions have also made reference to the of direct application will not have much International Covenant on Civil and relevance to the dualist legal system of Political Rights in interpreting constitu- 71 Mauritius.67 There is no express provi- tional provisions. However, none sion in the Constitution empowering were found that referred to the African national courts to use international Charter, case law of the African human rights instruments as interpretive Commission or any instruments from guides. Likewise, the Mauritian rule of the African human rights system. interpretations does not provide for any Resulting from the close rela- canon to use international law as an aid tionship between the Constitution to interpretation of national law.68 In and the European Convention, a large the absence of any constitutional or body of case-law from the European legislative imperative, courts are left to Court is incorporated into domestic their own discretion to apply the Afri- jurisprudence. Thus, judges are simply can Charter and/or Maputo Protocol as an aid to interpretation. 69 See Techane (n 22 above) 22 & Techane (n 33 above) 97. The review was done through the use of an interactive online database made available by the Supreme Court of Mauritius. 65 ‘Government Programme’ (2005-2010) in See http://supremecourt.govmu.org/scourt Techane (n 22 above) 30; See ‘Family /home/welcome.do (accessed 6 December Welfare and Protection Unit’ Ministry of 2015). Gender, Child Development and Family 70 Few examples include: Dookhits S v The Welfare http://gender.govmu.org/English/ Distric Magistrate of Pamplemousses (2011) SCJ Pages/Units/Family-Welfare-and-Protection 101; Parayag RK v The Independent -Unit.aspx (accessed 15 August 2015). Commission against Corruption (2011) SCJ 66 Viljoen (n 42 above) 540. 309; Bundhun VP v State (2010) SCJ 206; 67 In the Interlocutory Judgment in Ex Parte Moodoosoodun v State (2009) SCJ 413; Oozeer Devendranath Hurnam, a Barrister-at-Law SA.S & Others v The State (2007) SCJ 307; (2007) SCJ 289, the Supreme Court asserted State v Assame HD &Another (2001) SCJ 177. that unratified and unincorporated treaties 71 For example, Bajan Mvthe State (2010) SCJ are of no direct effect in Mauritian courts. 348; Devendranath Hurnam, Toolskykamalv HH See also Techane (n 22 above) 14. The District Magistrate of Pamplemousses (2007) 68 Interpretations and General Clauses Act RL SCJ 289; Fakeemeeah Mohamed v Commissioner 3/267 of 1982. of Police and Others (2001) SCJ252. 174 Mauritius prone to refer to those.72 By contrast, 6 Awareness and use by civil judges confirm that they have not society been using the African Charter or case law of the African Commission in their The interaction between civil society in judgments and equally have not encoun- Mauritius and the African Commission tered any domestic court decisions or does not tally with the regional trend of submissions from litigants that refer to NGOs’ active participation in the work 73 the same. This explains the position of the African Commission through that the case law of the African submission of communications and Commission is not well known to other promotional activities. This study Mauritian judges. Such a glaring did not find any NGO in Mauritius absence of judicial application of the which enjoys observer status or mean- African Charter shows that Mauritian ingfully engages with the African judges fall short of the significant role Commission. In addition to the very highlighted by the African Commission limited number of NGOs engaged in towards incorporating the African Char- human rights advocacy in Mauritius, ter and the jurisprudence of the African awareness of the African Charter and 74 Commission in court decisions. the Maputo Protocol is very low among civil society. It may be far-fetched to expect courts to make reference to the Maputo Despite the human rights advocacy Protocol as an instrument given that it done by the Mauritius branch of has not been ratified. However, one Amnesty International, before its may stagger at the lack of any reference closure in 2012, its publications and to the African Charter and the case-law training and awareness raising materials of the African Commission throughout showed no reference to the African two decades, particularly given the Charter, the Maputo Protocol or any of Mauritian judiciary’s rich tradition of the documents of the African Commis- reference to international and foreign sion.75 Trainings and advocacy activi- case law and legal instruments. The ties were highly reliant on the United authors argue that the non-domestica- Nations human rights treaties and tion of the African Charter has contrib- former staff have admitted that the Afri- uted to its neglect by the judiciary and can human rights system has not been litigants. This scenario would have used properly in the work of the organi- been quite different if the African Char- sation.76 In fact, it was only in 2011 that ter was an integral part of domestic law. Amnesty International’s newspaper Needless to mention, the lack of ratifica- published an article on the African tion of the Maputo Protocol precludes Charter and that trainings on the Afri- any significant judicial attention to it. can Charter were delivered.77
75 See Techane (n 22 above) 36. 76 Interviews with former Amnesty Mauritius staff cited in Techane (n 22 above) 36. 72 Interviews with judges cited in Techane (n 22 77 See Techane (n 22 above) 36; ‘Les above) 24 & Techane (n 33 above) 97; instruments Africains des droits de l’homme’ Interview with Justice SB Domah 17 August DIME Maurice 4 October 2011 34. Also, one 2015. of the authors, MG Techane, had joined the 73 As above. Amnesty training team and covered training 74 African Commission Resolution on the Role sessions on the African Charter in the of Lawyers and Judges in the Integration of training programmes between 12 September- the African Charter (1996). 4 October 2011. Impact of the African Charter and the Maputo Protocol in selected African states 175
7 Awareness and use by lawyers rights driven groups, and have not been seen visibly engaging in local human 83 A close study of the practice of both rights initiatives. This may also state and private lawyers shows no contribute to their invisible role in the significant distinction in so far as far as African human rights system. application of the African Charter and the Maputo Protocol is concerned. The 8 Higher education and academic African Charter is not particularly popu- writing lar amongst lawyers in either group and awareness in respect of the Maputo The University of Mauritius provides 78 Protocol is almost non-existent. Only human rights courses as part of the a few state lawyers who work on state undergraduate law curriculum,84 reporting can allege notable exposure which mainly focuses on the Consti- 79 to the African Charter instruments. tution and international human rights instruments. The cursory coverage of The majority of litigation lawyers the African Charter in the curriculum tend to rely, in addition to the Constitu- leaves its occasional inclusion in tion and other relevant domestic laws, lectures to the interests of a particular on the ECHR and the case law of the lecturer.85 However, in recent years, European Court, most likely due to facilitated by collaborations with the the regard attached to the ECHR as 80 University of Pretoria, the African the source of the Bill of Rights. human rights system is gaining better There is also a relatively growing prac- attention in the University’s law tice of referring to sources from the programmes on a regular basis.86 United Nations human rights system.81 Nevertheless, Mauritian lawyers The gradually increasing number of confirmed that the practice of citing dissertations on topics related to the provisions of the African Charter or African Charter and the Maputo Proto- case law and other authoritative docu- col is also promising.87 The restricted ments of the African Commission in interest of students to write their disser- their submissions is almost non-exist- tations on related topics may be ent. This can be ascribed to their explained by the lack of proper cover- unfamiliarity with the relevant instru- ments and jurisprudence.82 83 Previous assessment done in 2011 did not find any notable human rights activities The Mauritius Bar Association and carried out or supported by the Bar its members do not stand as human Association. See Techane (n 22 above) 27. The situation remained the same to date. See n 82 above. 84 The Department of Law at the University of 78 Interviews with barristers S Calliapen and Mauritius is the one and the only with a Arvin Ramsohok (15 August 2015); see also compulsory human rights course; though the interviews with prominent barristers: P University of Central Lancashire and Patten & JC Bibi, September 2011, cited in University of Middlesex, two private Techane (n 22 above) 26. universities, also provide LLB degree 79 Interviews with state lawyers from courses. Attorney General’s Office & Office of the 85 Interviews with lecturers D Michel & Director of Public Prosecutions cited in V Jugoo, University of Mauritius (14 August Techane (n 33 above) 99. 2015). 80 Interviews with barristers and prosecutors (n 86 Interview with P Bissessur, Lecturer of Law, 79 & 80 above). University of Mauritius (5 August 2015). 81 Interviews (n 80 above). 87 For example, women’s rights in Africa, 82 Interviews with barristers cited of the sexual minorities’ rights in Africa, state African Court in Techane (n 33 above) 99. reporting mechanism in Africa, etc. 176 Mauritius age of the African system in their cours- of the NHRC.92 The human rights es, coupled with the dominance of education and advocacy activities of European system in the education the NHRC usually focus on human system. The consistent participation of rights issues under the Constitution, the University in the African Human and may cover international instru- Rights Moot Court Competition is ments. However most commonly they another encouraging aspect that is facili- do not include the African Charter tating improved visibility of the African except by occasional cursory mention in human rights system in Mauritius’ legal a few trainings and workshops.93 education.88 Nevertheless, the library Women’s rights advocacy is highly still offers negligible reference materials influenced by United Nations instru- relevant to the topic of the African ments, but not by the Maputo Protocol. Charter and the Maputo Protocol. Further, it was also observed that rele- vant officers at the NHRC not only give Preceding studies that reviewed higher regard to the UN human rights academic journals, publications and system, but also lack proper exposure to research did not find any pieces of the African system. academic work from the domestic academic community relevant to the The NHRC is normally expected to African Charter or the Maputo Proto- participate in state reporting, and to col.89 There is however encouraging submit its own report to the African progress in recent years with the Commission.94 It is also expected to increased participation of lecturers in assist, advise and monitor implementa- academic conferences during which tion of Concluding Observations in papers are presented on topics related accordance with the Paris Principles.95 the African human rights system.90 However, the NHRC has not been actively involved in the preparation of 9 National human rights state reports under the African Char- 96 institutions ter, and neither has the African Commission fulfilled its reporting In spite of the NHRC’s affiliate status obligation as required of NHRIs that with the African Commission,91 neither enjoy affiliate status with the African the African Commission’s documents Commission. nor the African Charter or the Mapu- to Protocol are represented in the work
88 Centre for Human Rights ‘Moot 2014: Top 92 The NHRC annual reports since 2004 have results’ http://www.chr.up.ac.za/index.php been closely reviewed. These reports are /moot-archives/ moot-2014/moot-2014-top- available on NHRC’s website. results.html (accessed 08 August 2015). 93 Discussions with NHRC staff cited in 89 Techane (n 22 above) 37 & Techane (n 33 Techane (n 22 above) 34. above)100-101. 94 The Resolution on Granting Observer Status 90 R Mahadew ‘Best loser system in Mauritius’ to NHRIs in Africa (1998) imposes in J de Visser (ed) Constitution-Building in obligation on NHRIs with observer status to Africa (2015) 135; R Mahadew ‘The right to submit reports to the African Commission health in Mauritius: Is the state doing every two years. enough or is the constitutional protection of 95 United Nations Principles relating to the the right to health still required?’ in E Status of National Institutions (the Paris Durojaye (ed) Litigating the right to health in Principles) (1993) A, para 3 (a-g). Africa (2015). 96 This was also duly faulted by the African 91 Granted in May 2002 at the 31st ordinary Commission. See Concluding Observations session of the African Commission. (n 23 above) para 36. Impact of the African Charter and the Maputo Protocol in selected African states 177
10 State reporting sion generally remain unpublished. Where published, the reports are not Only two periodic reports have been disseminated to the public. submitted to the African Commission by Mauritius so far. The first is the Finally, the Human Rights Unit has initial report submitted in 1996 and the responsibility to ensure that Concluding second is a combined report of the 2nd, Observations are disseminated to rele- 3rd, 4th and 5th periodic reports, vant government bodies and this should submitted in 2008. Although three be followed by necessary montitoring on implementation of the recommenda- reports became due as of 2015, there are 99 no indications that any report is under- tions. The Attorney General’s Office, way for submission.97 Relevant authori- being the principal advisory body to the ties have suggested that the delays in government, advises on the essential reporting happen with respect to all measures to be taken as per the treaties and are attributed to challenges Concluding Observations. A previous in timely information gathering from study has noted that an analysis of the various stakeholders under multiple Concluding Observations has formerly reporting obligations to several interna- been prepared and distributed to rele- tional bodies. vant government departments, direct- ing them to take necessary Presently, the Human Rights Unit measures within their mandates and of the Prime Minister’s Office is the report back to the Human Rights Unit 100 apex body and has a leadership role in on their efforts. There is, however, the preparation of state reports under no standard practice of disseminating human rights treaties. Previously, the Concluding Observations to NGOs or same task was accomplished by the the public. Minister of Justice and Human Rights (the current Attorney General’s Office). 11 Communications involving the The process of preparing reports state involves gathering inputs from relevant government ministries and state depart- Since becoming a state party to the Afri- ments and hosting thorough consulta- can Charter, only one communication tions with the Attorney General’s has been brought against Mauritius (in Office. Still, the process is faulted for conjunction with thirteen other South- the low level of engagement and lack ern African countries) in 2013 followed of consultation with all relevant stake- by a decision in 2014.101 The case holders. For instance, interdepartmen- involved an alleged violation of articles tal dialogue is infrequent and the 7 and 26 of the African Charter for deni- participation of the NHRC, civil socie- al of access to justice after 14 countries ty and the wider public is absent in the accepted the suspension of the SADC 98 reporting process. Important stake- Tribunal. Nonetheless, the African holders still remain unaware of the Commission found no violation of the reporting process and the reports submitted to the African Commis-
99 Interview with Cader (n 28 above). 97 See Techane (n 33 above) 101. 100 Techane (n 22 above) 33 indicated that the 98 See Techane (n 22 above) 32. See also document was reviewed. Concluding Observations (n 23 above) para 101 Tembani & Freeth v Angola and Thirteen Others 36. (2014) AHRLR 54 (ACHPR 2014). 178 Mauritius alleged articles of the African Charter by of fact, many relevant actors and officers the respondent states.102 are unaware of the visit and the report.
The low level of awareness regard- 13 Factors that may impede or ing the African Charter and the commu- enhance the impact of the nication procedure of the African African Charter, the Maputo Commission most probably explains why Mauritians do not resort to the Protocol and the African African Commission in the pursuit for Commission justice. It is to be noted that factors that hinder 12 Special mechanisms and or heighten the impact of the said instru- ments in Mauritius remain more or less promotional visits by the the same those found during the initial African Commission assessment under this study which were carried out in 2011.105 So far, there has been only one visit by the African Commission to Mauritius The central mandate of the Human which was held in August 2006 and Rights Unit of the Prime Minister’s covered a comprehensive review of Office, which is to coordinate all 103 human rights issues in the country. government activities pertaining to Accordingly the African Commission human rights, offers a great advantage made relevant recommendations which, for institutionalising all responsibilities amongst others, included, urging the of the state in relation to the African government to consider the abolition of Charter. As a matter of fact, such a death penalty, encouraging equal gender mandate, combined with the existence representation in politics, undertaking of important institutions such as the affirmative action in favour of marginal- NHRC and the LRC can contribute ised groups, expediting judicial process- immensely to enhancing the impact of es, ensuring the protection of people the African Charter. living with HIV/AIDS from discrimina- tion, submitting overdue reports, popu- The ongoing discourse on consti- larising the African Charter and making tutional amendments, particularly on the declaration under article 34(6) of the the incorporation of socio-economic African Court Protocol to allow direct rights in the Bill of Rights, remains a access of NGOs and individuals to the unique opportunity for the integration African Court.104 Nevertheless, it or incorporation of the norms of the remains disquieting that even if the African Charter and the Maputo Proto- mission report brought about diverse col. Likewise, the opportunity can also recommendations, no specific follow-up be seized to incorporate a constitution- measures were underlined. As a matter al imperative for judicial interpretation guided by the African Charter and 102 See Tembani & Freeth v Angola and Thirteen international human rights instru- Others (n 102 above) para 146. 103 See African Commission on Human and ments. Equally, the importance of Peoples’ Rights ‘Mission report of the domestication should also not be disre- promotional visit to Mauritius’ (August 2006) http://www.achpr.org/files/sessions/ garded. 40th/mission-reports/mauritius/misrep_pro mo_mauritius_2006_eng.pdf (accessed 4 June 2011). 105 See Techane (n 33 above) 103-104 & Techane 104 See Mission Report (n 104 above) 33-35. (n 22 above) 39-49. Impact of the African Charter and the Maputo Protocol in selected African states 179
LRC’s research can contribute The justiciable Bill of Rights, which considerably to enlightening all stake- currently only embodies civil and politi- holders about appropriate legislative cal rights, is an important opportunity amendment or adoption to guarantee for the enforcement of rights in the Afri- harmonisation with the African Charter, can Charter that could be complement- Maputo Protocol and the Concluding ed by the extensive jurisprudence of the Observations, general comments, reso- African commission. Furthermore, lutions and case law of the African without disregard to the constitutional Commission. The LRC is well posi- lacunae on socio-economic rights and tioned to commission a compatibility some aspects of civil and political rights, study that could spark the influence of the progressive legislation on a range of the African Charter on legislative action human rights positively contributes to and boost compliance by the state with the promotion and protection of rights its obligation to take legislative meas- under the African Charter and the ures to give effect to the rights in the Maputo Protocol. African Charter. The tradition of the judiciary and A statutory human rights institu- lawyers referring to international tion, the NHRC with affiliate status instruments can provide a fertile with the African Commission, offers ground for application of the African an opportunity to enrich visibility of Charter in domestic litigation and judi- the African Charter, the Maputo cial practice. However, the lack of Protocol and the work of the African awareness and limited importance Commission in the domestic human attached to the African Charter and the rights system. The NHRC should jurisprudence of the African Commis- proactively integrate the African Char- sion continues to limit such influence. ter, Maputo Protocol and resolutions, Sensitisation seminars and training general comments and Concluding programmes for judges and practicing Observations of the African Commis- lawyers are of paramount impor- sion in its works. The NHRC should tance. The roles of the Judicial and also organise targeted promotional Legal Studies Institute and the Bar activities such as awareness raising Association cannot be overemphasised workshops, trainings, publications and in this regard. media campaigns to promote the same. The presence of lecturers trained The fact that state reporting and on the African human rights system at Concluding Observations of the African the University of Mauritius,106 and its Commission are given rational consider- regular participation in the African ation is an important asset to heighten Human Rights Moot Court Competi- the impact of the African Charter even tion is an opportunity that enhances the though much remains to be done in this influence of the African Charter and the respect. The reporting process should jurisprudence of the African Commis- be regarded as an opportunity to surge sion in law school education and the impact of the African Charter by academic writing. The inadequate enhancing the participation of all coverage of the African human rights stakeholders. Publication and wider dissemination of periodic reports and 106 Including one of the authors, R Mahadew, Concluding Observations is encouraged. being a lecturer at the University of Mauritius. 180 Mauritius system in law school curricula and the ensure the integration of its provisions scarcity of reference materials on the and also other instruments of the Afri- subject still constrain the influence of can Commission in the domestic legal the African Charter, Maputo Protocol system proves to be highly relevant. The and the African Commission’s jurispru- NHRAP should provide concrete steps dence. This inadequacy needs to be in relation to human rights activities, addressed. In addition, academics in legal and policy reform, judicial train- Mauritius need to engage in active ing, higher education and other areas. human rights practice as ‘constitutional interpreters’,107 and as change agents. An empirical observation evidences the dearth of awareness about the Afri- The lack of domestication is a can Charter and the Maputo Protocol in critical factor encumbering the impact Mauritius. Many who work in relevant of the African Charter in the domes- government departments are oblivious tic system of Mauritius. While to the instruments and the work of the Mauritius has been a party to the Afri- African Commission. can Charter for more than two decades, the African Charter remains invisible in The domestic influence of the Afri- the domestic human rights practice can Charter in Mauritius is to a large mainly because it still is not declared as extent shrunk by the lack of vibrant a fundamental part of the domestic local or international human rights law. In a dualist legal system like NGOs. This is aggravated by the closure Mauritius, incorporation into domestic of Amnesty International and its law will have greater utility in litigation Human Rights Training Center which practices as well as judicial enforcement. promoted the African Charter. The defi- ciency of human rights lawyers and The non-ratification of the Maputo lawyers associations that ‘engage lead- Protocol has contributed significantly to ing institutions of the state’108 through the lack of attention given to the instru- dynamic efforts and catalyse change ment. The government must earnestly poses undesirable bearings. consider ratification of this Protocol and the Ministry of Gender should actively It is also important to observe promote the Maputo Protocol and geographic, social and political urge its ratification. contexts. The detached physical loca- tion of Mauritius from Africa mainland, The absence of a clear government its large population of Asian descents programme in the National Human with dominant Asian culture and the Rights Action Plan (NHRAP) and stable culture and the stable peace, secu- other important policies that draw atten- rity and economic situation of the coun- tion to the African Charter and the try might have created societal Maputo Protocol is a point of concern. Adoption of clear commitments to 108 A Aturu ‘The legal profession and protection promote the African Charter and to of human rights’ unpublished paper presented for the Nigerian Institute of Advanced Legal Studies, 2010 referred to in 107 Du Plessis illuminates the role of academics Meskerem, Geset Techane 'Where is the and academic institutions as ‘constitutional African Charter: Assessing the Impact of the interpreters’. See L Du Plessis ‘Legal African Charter on Human and Peoples' academics and the open community of Rights in Mauritius' http://repository.up. constitutional interpreters’ (1996) 12 South ac.za/bitstream/handle/2263/18643/Tech Africa Journal on Human Rights 214. ane_Where(2011).pdf?sequence=1 p 27. Impact of the African Charter and the Maputo Protocol in selected African states 181 perceptions of not associating with that the African Charter and the Mapu- ‘Africa’s problems’.109 In addition, to Protocol confer additional and essen- having its major foreign relations as well tial protections of human rights. It is as trade and economic partnerships tied imperative that the state show genuine to Britain, France and India,110 Mauri- political will to enshrine provisions from tius has minimal interaction with most the African human rights instruments African states. This arguably contrib- into the domestic legal frameworks. In utes to a general outlook amongst parallel, education of students, lawyers relevant actors that African instru- and judges on the African human rights ments are more relevant to an ‘African systems is mandatory. Judges particular- context’ than Mauritius. This is ly shoulder the responsibility to incorpo- compounded by the dominant influence rate provisions from African of the European human rights system instruments into their judgments and the attitude towards the UN although lawyers are also expected to human rights system as a more rele- engage in proactive litigation integrating vant supranational human rights the same into their submissions. system. Ratification and domestication of The lack of media coverage on the the concerned instruments and the work of the African Commission and reporting obligations therein, as well as Mauritius’ interactions with the African necessary legislative and policy reform, human rights system has its own awareness and capacity building contribution to impairment of public programmes should be given due atten- awareness. Major media coverage on tion. The roles of NHRIs, judicial and Africa alerts the public mainly about legal training institutes, lawyers associa- crises on the continent.111 The role of tions, government bodies, civil society the media should be boosted to give and academic institutions should be coverage of the African human rights enhanced. system, thus increasing public aware- ness.
14 Conclusion
The foregoing discussions establish that the influence of the African Charter and the Maputo Protocol on the domestic system of Mauritius is weak. There are undeniably positive dynamics that can be used to improve the status quo.
Despite a decent standard of human rights prevailing in the country, Mauri- tius needs to come to terms with the fact
109 Techane (n 22 above) 40-41. 110 H Metz (ed) Mauritius: A country study (1994), Washington GPO for the Library of Congress http://countrystudies.us/mauri tius/ (accessed 21 August 2011). 111 Techane (n 22 above) 42. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN NIGERIA
Victor Oluwasina Ayeni*
1Introduction Bill of Rights, Nigeria is currently oper- ating under its 1999 Constitution.4 The Nigeria is one of the founding state 1999 Constitution guarantees basic civil 5 parties to the African Charter as well as and political rights. In addition to the the Maputo Protocol, having ratified the constitutional guarantees, some progress Charter on 22 June 1983 and the Mapu- has been achieved in the areas of access 6 to Protocol on 16 December 2004.1 to information, domestication of inter- 7 Nigeria gained its political independ- national instruments on children, ence from British colonial rule on 1 prohibition of violence against women 8 October 1960. Its first constitution upon and girls, prohibition against trafficking 9 attaining independence was the 1960 in persons including women and girls, Independence Constitution.2 This and strengthening of laws against Constitution contains Nigeria’s first discrimination and sexual harassment in 10 constitutional guarantees of human the workplace. The incumbent Presi- rights.3 After a series of constitutional dent of Nigeria, Muhammadu Buhari, dispensations each of which embodied a has also initiated government-backed programmes for the clean-up of Ogoni- land, one of the landmark recommenda-
* LLB (Akungba-Nigeria), LLM HRDA (Pretoria) and doctoral candidate, Centre for 4 It should be noted that between 1960 and Human Rights, University of Pretoria, South 1999, Nigeria operated at least two different Africa. constitutions, namely the 1963 (Republican) 1 African Union ‘List of countries which have Constitution and the 1979 Constitution. signed, ratified/acceded to the African 5 See Chapter IV, Constitution of the Federal Charter on Human and Peoples’ Rights’ Republic of Nigeria, 1999 (Constitution). http://www.au.int/en/treaties (accessed 16 6 See the Freedom of Information Act of 2011. September 2015). 7 See the Child’s Rights Act of 2003. 2 Prior to the 1960 Independence 8 See Violence against Persons (Prohibition) Constitution, the colonial administrations in Act of 2015. Nigeria operated at least five ‘constitutional 9 See Trafficking in Persons (Prohibition) instruments’. These instruments also referred Enforcement and Administration Act of to as ‘constitutions’ were made through 2015. orders-in-council of the British monarch in 10 See Constitution of the Federal Republic of 1914, 1922, 1946, 1951 and 1954. Nigeria (Third Alteration) Act of 2011. See 3 See Chapter III, sections 17-27, also section 254(c)(2)(g) of the 1999 Independence Constitution, 1960. Constitution (as amended).
183 184 Nigeria tions of the African Commission in the have been subjected to state-sponsored case of SERAC v Nigeria.11 attacks, restrictions and profiling.
In spite of these advances, however, 2 Ratification of the African the Nigerian government has failed to Charter and the Maputo curtail human rights abuses in a number Protocol of areas. Some of the human rights abuses dominating Nigeria’s human The President of the Federal Republic of rights landscape include the indiscrimi- Nigeria is vested with power to conduct nate killing of civilians and abduction of all external relations, including negotia- women and girls by the Boko Haram tion and ratification of international sect, and the failure of government to treaties, on Nigeria’s behalf.15 This protect the lives and property of people power like other executive powers of the in North East Nigeria where Boko President may be exercised by the Presi- Haram insurgency is currently taking dent personally or through the Vice- place.12 Government security forces President, ministers or any duly desig- handling the country’s counter-insurgen- nated officer in the public service of the cy operations have also been accused of Federation.16 The National Assembly high-handedness and massive human on the other hand is empowered to rights abuses including torture, arbitrary implement or in a technical term detention and extrajudicial killing of ‘domesticate’ international treaties duly suspects.13 Sectarian and political entered into by the President.17 As the violence has continued to plague some law currently stands, the National states, especially in the Northern part of Assembly has no competence to ratify Nigeria, and the government has not treaties between Nigeria and other coun- been decisive in ensuring accountability. tries.18 The procedure for treaty making, Large-scale corruption in public and including signature and ratification of private institutions continues to impede treaties in Nigeria, is contained in the the enjoyment of socio-economic rights. Treaties (Making Procedure) Act Cap Consensual homosexual conduct T20 LFN 2004. Although the President remains criminalised across Nigeria and may notify the National Assembly of his same-sex marriage is prohibited and criminalised under a new law adopted 14 15 See Items 26 & 31 of Part I of the Second in 2015. Human rights defenders, Schedule to the Constitution. See also especially those working on sexual E Egede ‘Bringing human rights home: An examination of the domestication of human orientation and gender identity issues, rights treaties in Nigeria’ (2007) 51 Journal of African Law 249-250. See also Items 26 & 31 of Part I of the Second Schedule to the 11 Social Economic Right Action Centre (SERAC) Constitution; VO Ayeni ‘Domestic impact of and Another v Nigeria (Ogoniland case) (2001) the African Charter on Human and Peoples’ AHRLR 60 (ACHPR 2001). See ‘UNEP Rights and the Protocol on the Rights of Report: Buhari orders fast-track of Ogoni Women in Africa: A case study of Nigeria’ clean-up’ Premium Times 5 August 2015 unpublished LLM Dissertation, University http://www.premiumtimesng.com/news/to of Pretoria, 2011. p-news/187884-unep-report-buhari-orders- 16 See sec 5(a) of the Constitution. fast-track-of-ogoni-clean-up.html (accessed 17 Sec 12 of the Constitution. 24 September 2015). 18 See AG Federation v AG Abia State and 35 12 Human Rights Watch ‘World Report 2015: others [2002] 16 I Weekly Report of Nigeria 175; Nigeria’ https://www.hrw.org/world-rep A Oyebode ‘Treaty making power in ort/2015/country-chapters/nigeria Nigeria’ in A Oyebode (ed) International law (accessed 24 September 2015). and politics: An African perspective (2003) 118. 13 As above. AA Akinbuwa ‘The concept of women’s 14 See the Same Sex Marriage (Prohibition) Act rights in Nigeria’ (2009) 15 East African of 2013. Journal of Peace and Human Rights 465 474. Impact of the African Charter and the Maputo Protocol in selected African states 185 or her intention to ratify a treaty, there International Law (DCIL) of the Feder- is no obligation to do so.19 It is the al Ministry of Justice.24 The Depart- prerogative of the President acting ment also coordinates the meetings of through their vice, a minister of the the Inter-Ministerial Committee on the Federal Republic or any other duly African Charter, a committee set up to designated officer to sign and ratify ensure Nigeria complies with her obliga- international treaties. In accordance tions under the African Charter.25 A with these processes, Nigeria signed and government focal point has also been ratified the African Charter on designated for the Maputo Protocol: the 31 August 1982 and 22 June 1983 Federal Ministry of Women Affairs.26 respectively, and deposited the instru- Based specifically on the African ment of ratification on 22 July 1983.20 Commission’s recommendation, a Nigeria signed and ratified the Maputo National Working Group on Human Protocol on 16 December 2003 and 16 Rights Treaty Reporting has also been December 2004 respectively.21 The established.27 The working group is instrument of ratification of the Maputo mandated amongst other things to Protocol was deposited on 18 February ensure effective coordination and regu- 2005.22 lar consultation amongst stakeholders in line ministries, departments and agen- The Federal Ministry of Justice has cies; and also to ensure follow up action been designated as the ‘focal point’ on concluding observations and recom- responsible for coordinating Nigeria’s mendations of the African Commission response and responsibilities on the and other treaty monitoring bodies.28 African Charter.23 The actual depart- ment in charge of the ministry’s activ- 3 Domestication or incorporation ities in respect of the African Charter is the Department of Comparative and Domestication of treaties may take place at two levels: directly through incorporation or indirectly through transformation.29 According to Viljoen, incorporation is the wholesale enact- 19 Akinbuwa (n 18 above). Note however that ment of the provisions of a treaty, usual- an amendment to the Treaties (Making Procedure) Act is currently before the ly with specific reference to the treaty National Assembly. The Amendment seeks being incorporated.30 Transformation amongst other things to make consultations with the National Assembly mandatory before the executive arm of government can sign or ratify a treaty. See http://nass. 24 Nigeria’s Fourth Periodic Country Report (n gov.ng/document/bills (accessed 1 October 23 above) ii & 5; Nigeria’s Fifth Periodic 2015). Country Report (n 23 above) ii & 2; AA Yola 20 African Union (n 1 above). ‘Overview of all departments in the Federal 21 African Union (n 1 above). Ministry of Justice’ (2012) 4 Justice Journal 9. 22 As above. 25 Yola (n 24 above) 11; Nigeria’s Fourth 23 Nigeria’s Third Periodic Country Report: Periodic Country Report. 2005-2008 on the implementation of the 26 Nigeria: Initial Country Report on African Charter on Human and Peoples’ implementation of AU Solemn Declaration Rights in Nigeria to the African Commission on Gender Equality in Africa (2004-2006). (2008) 15; Nigeria’s Fourth Periodic Country 27 Nigeria’s Fourth Periodic Country Peoples’ Report: 2008-2010 on the implementation of Rights (n 23 above) 18. the African Charter on Human and Peoples’ 28 As above. Rights in Nigeria (2011) 5; Nigeria’s Fifth 29 J James-Eluyode ‘Enforcement of inter- Periodic Country Report: 2011-2014 on the national humanitarian law in Nigeria’ (2003) implementation of the African Charter on 3 African Human Rights Law Journal 266. Human and Peoples’ Rights in Nigeria 30 F Viljoen International human rights law in (2014) ii & 2. Africa (2012) 522. 186 Nigeria on the other hand occurs where treaty Charter on Human and Peoples’ Rights norms influences a legislative enactment (Ratification and Enforcement) Act37 or amendment without explicit refer- ence to the treaty.31 Nigeria has adopted to enable effect to be given in the Federal the dualist approach; this implies that Republic of Nigeria to the African Charter on Human and Peoples' Rights made in duly ratified treaties do not have force of Banjul on the 19th day of January, 1981 law in Nigeria unless and until they and for purposes connected therewith.38 have been domesticated.32 Section 12 of the 1999 Constitution provides:33 ‘No The Act provides: treaty between the federation and any other country shall have the force of law As from the commencement of this Act, the provisions of the African Charter on except to the extent to which any such Human and Peoples' Rights which are set treaty has been enacted into law by the out in the Schedule to this Act shall, National Assembly.’34 This means for a subject as thereunder provided, have force treaty to have the force of law in Nige- of law in Nigeria and shall be given full ria, the treaty must first be domesticat- recognition and effect and be applied by all authorities and persons exercising ed. legislative, executive or judicial powers in Nigeria.39 The process of domesticating trea- ties to which Nigeria is a party depends No official reasons were found during largely on the subject matter of the trea- this study for the prompt domestication ty. Where a treaty relates to any of the of the African Charter in Nigeria, which items under the Exclusive Legislative interestingly took place before ratifica- List, such treaty is deemed duly to have tion. One hint may be in the preamble been domesticated upon a law passed to of the implementing legislation, which that effect by the National Assembly.35 states that ‘Nigeria is desirous of adher- However, where the subject matter of a ing to the said Charter’.40 Since Nigeria treaty falls outside the Exclusive Legis- in 1983 was not a model in terms of lative List, a law to domesticate such adherence to human rights, the actual treaty must first be passed by the reason for domestication of the Charter National Assembly and further ratified must be located outside the preambular by a majority of the 36 state houses of provision. It has been argued that many assembly.36 dictatorial regimes in Africa ratified or domesticated the African Charter and On 17 March 1983, Nigeria’s other international human rights instru- National Assembly passed the African ments as a result of international pres- sure demanding domestic reform.41 Up 31 As above. to the time of this study, Nigeria is the 32 Abacha v Fawehinmi (2000) 6 NWLR (Pt 660) only Anglophone country in Africa to 228 SC; Ibidapo v Lufthansa Airlines [1997] 4 NWLR (Part 498) 124 150; African Reinsurance Corporation v Abata Fantaye [1986] 3 NWLR (part 32) 811. 33 See also sec 12(1) of the 1979 Nigerian Constitution, sec 13 of the 1989 Nigerian 37 Cap A9, LFN 2004. Constitution, sec 74 of the 1963 Nigerian 38 Preamble, African Charter (Ratification and Constitution and sec 69 of the 1960 Nigerian Enforcement) Act. Constitution. 39 Sec 1 of the African Charter (Ratification 34 The status of international treaties in Nigeria and Enforcement) Act. thus depends on whether or not the treaty 40 Preamble, African Charter (Ratification and has been domesticated. Enforcement). 35 Sec 12(1) & (2) of the Constitution. 41 See KO Kufuor The African human rights 36 Sec 12(1)-(3) of the Constitution. system: Origins and evolution (2010). Impact of the African Charter and the Maputo Protocol in selected African states 187 have directly domesticated the African Some old laws have been amended and Charter.42 new laws adopted to give effect to obli- gations arising from the Protocol’s The status of the African Charter, provisions. Due to the Federal structure domesticated as the African Charter of Nigeria and the nature of issues (Ratification and Enforcement) Act, in covered by the Maputo Protocol,46 relation to other national legislations domestication takes place at two differ- received significant attention in the case ent levels: national and sub-national. At 43 of Abacha v Fawehinmi. In that case, the national level, consolidated legisla- Fawehinmi was arrested without a tion titled the Violence against Persons warrant and detained by members of the (Prohibition) Act was signed into law on State Security Service (SSS). He alleged 25 May 2015.47 The law prohibits and that his arrest and detention violated the criminalises amongst other things Nigerian Constitution of 1979 and female genital mutilation, harmful provisions of the African Charter (Rati- widowhood practices, spousal battery, fication and Enforcement) Act. During emotional or verbal abuse, forceful ejec- the hearing, legal counsel for Abacha tion from the matrimonial home, forced raised a preliminary objection contend- financial dependence, and forced isola- ing that the Court was not competent to tion or separation from family and hear the case since its jurisdiction has friends.48 Another consolidated piece of been ousted by various decrees. The legislation, the Gender and Equal Supreme Court unanimously held that Opportunities Bill seeks to domesticate the African Charter (Ratification and articles 1-24 of the Maputo Protocol and Enforcement) Act was superior to all currently before the National Assem- military decrees and domestic legisla- bly.49 tion in Nigeria with the exception of the Constitution.44 The Judges further stat- At the sub-national level, specific ed that in the case of conflict between provisions of the Maputo Protocol, such the African Charter (Ratification and as the prohibition of female genital Enforcement) Act and other domestic mutilation and domestic violence, the legislation, the African Charter (Ratifi- promotion of gender equality and cation and Enforcement) Act shall affirmative action, women’s land rights prevail and the conflicting domestic and widowhood practices have been legislation shall to the extent of its absorbed into laws of the various states inconsistency be void.45 in Nigeria.50
Unlike the African Charter, the Although as a general rule no treaty Maputo Protocol has not enjoyed direct may have force of law in Nigeria unless incorporation into the domestic legal enacted into law by parliament, there system in Nigeria. Provisions of the are at least two ways to enforce an Maputo Protocol have however been undomesticated treaty in Nigeria. First, domesticated indirectly through a by virtue of the Constitution (Third process of legislative ‘transformation’.
46 See sec 12(2)-(3) of the Constitution. 42 Viljoen (n 30 above) 529. 47 See Violence against Persons (Prohibition) 43 [2000] 6 NWLR (Part 660) 228. For a more Act of 2015. detailed analysis of the case, see Egede (n 15 48 As above. above) 249-284. 49 Nigeria’s Fifth Periodic Country Report (n 44 Abacha (n 32 above) 289-343. 23 above). 45 Sec 4(5) of the Constitution. 50 As above. 188 Nigeria
Alteration) Act of 2011, international 18(3) of the African Charter (Ratifica- human rights instruments governing any tion and Enforcement) Act. This crea- aspect of labour, employment, work- tive interpretation may be resorted to place and industrial relations may be where a litigant in Nigeria intends to enforced directly before an industrial rely on an undomesticated provision of court in Nigeria.51 Thus, the provisions the Maputo Protocol. of the Maputo Protocol relating to gender equality and the prohibition of 4 Legislative reform or adoption sexual harassment at the work place may be applied in Nigeria with or with- The African Charter has influenced 52 out domestication. legislative outcomes in Nigeria in at least two ways. There are cases of direct Moreover, by virtue of article 18(3) causality and also instances of corre- of the African Charter which has been spondence in norms. In 1987, the then domesticated as article 18(3) of the Afri- military government of Nigeria promul- can Charter (Ratification and Enforce- gated a decree – the Civil Disturbances ment) Act, Nigeria has an obligation to (Special Tribunal) Decree. This Decree ensure the elimination of discrimination set up a special tribunal to try persons and protection of women as ‘stipulated accused of causing civil disturbances. in international declarations and 53 Membership of the tribunal as stipulated conventions’. Viljoen and some by the Decree included a superior court human rights experts are of the view judge and four other members, one of that article 18(3) makes CEDAW for which must be a serving member of the instance applicable to all state parties to Armed Forces. Right of appeal was not the African Charter irrespective of their 54 allowed against the decisions of the ratification status under CEDAW. It tribunal. The jurisdiction of ordinary is further submitted that even the Mapu- courts was also ousted. This Decree was to Protocol could be considered part of challenged in a number of communica- the African Charter under this provi- 55 tions submitted to the African Commis- sion. The implication of such indirect sion, which found the Decree to be a incorporation for a state such as Nigeria violation of the African Charter. The which has domesticated the African African Commission’s decisions were Charter word for word is to empower used widely by activist organisations to domestic courts to invoke the provisions mount pressure on the government and of the Maputo Protocol through article on 5 June 1996, the Decree was amend- ed. The amendment specifically granted 51 See sec 254(C)(1)(g)-(h) and 254(c)(2) of the a right of appeal and removed the 1999 Constitution as amended by sec 6 of the Armed Forces member of the tribunal.56 Constitution (Third Alteration) Act 2011. 52 As above. 53 Viljoen (n 30 above) 270. On another occasion, activist organ- 54 Viljoen (n 30 above); Women in Law and isations in Nigeria used the African Development in Africa (WiLDAF) ‘Nigeria‘s advocacy for better implementation of Commission’s decisions to press for the women’s rights in Nigeria’ (2002) 5 repeal of the State Security (Detention www.wildaf-ao.org (accessed 4 September 2004). 55 See similar argument in F Viljoen ‘The African Commission on Human and 56 For a more detailed account of the process Peoples’ Rights: Introduction to the African leading up to the repeal of the Decree, see Commission and the regional human rights OC Okafor The Africa human rights system: system’ in C Heyns (ed) Human rights law in Activist forces and international institutions Africa (2004) 497-498. (2007) 128-130. Impact of the African Charter and the Maputo Protocol in selected African states 189 of Persons) (Amendment) Decree 2 of tration and Activities) Decree 1998. 1994. This Decree which was promul- Although it is difficult to establish gated by the then military government conclusively all the factors that inspired of Nigeria empowered the government these wide-ranging legislative reforms, to detain persons for acts prejudicial to African Charter norms and the African state security for up to six months. Commission’s repeated condemnations Section 2A of the Decree prohibited the were arguably amongst the foremost courts from issuing a writ of habeas considerations. corpus for the release or production in court of the detainees. In a number of The African Charter played no communications as in the earlier case, significant role during the drafting 59 the African Commission condemned process of the 1999 Constitution. This this Decree as a flagrant violation of the is because the 1999 Constitution is a right to liberty and fair trial under the near-verbatim adaptation of Nigeria’s African Charter. As a result of massive 1979 Constitution which predated the 60 condemnations by NGOs and civil soci- African Charter. The Bills of Rights in ety organisations ‒ using the African the two constitutions are not only simi- Commission’s decisions as a reference lar, but identical except for slight varia- point ‒ the Decree was repealed in June tions in numbering. As a result, there is 1996.57 no explicit reference to the African Charter in the 318 sections of the 1999 Upon transition to democracy, the Nigerian Constitution. While it cannot following decrees which were the be said that the African Charter formed subject of litigation in various communi- the basis of the 1999 Constitution, most cations before the African Commission of the human rights provisions in the were also repealed:58 Constitution Constitution coincide with the African (Suspension and Modification) Decree Charter’s provisions. The African Char- 1984, State Security (Detention of ter has also been referenced in some Persons) Decree 1984, Military Courts legislation enacted after the transition to (Special Powers) Decree 1984, Treason civil rule in 1999.61 An analysis of the and Other Offences (Special Military impact of the Maputo Protocol on the Tribunals) Decree 1986, Civil Distur- Constitution is unnecessary because the bances (Special Tribunals) Decree 1987, Constitution was adopted long before Academic Staff Union of Universities the Maputo Protocol came into force. (Proscription and Prohibition from Participation in Trade Union) Decree No evidence was found in Nigeria 1992, Treason and Treasonable Offenc- of a compatibility study undertaken es Decree 1993, Political Parties (Regis- prior to the ratification of either the African Charter or the Maputo Proto-
57 See State Security (Detention of Persons) (Amendment) (Repeal) Decree 18 of 1996. 59 See Speech Delivered by the Chairman of the Other military decrees such as the Political Constitution Debate Coordinating Parties Dissolution Decree 114 of 1999 and Committee (CDCC), Justice Niki Tobi, the Newspapers Registration Decree 43 of while presenting the Committee's report to 1993 were reportedly repealed following the Head of State, General Abdulsalami intense criticism from international and Abubakar (on file with the author). domestic activist groups, usually relying on 60 As above. the decisions of the Commission. See Okafor 61 See for instance, art 3(2)(f) and 4(1)(d) of the (n 56 above) 132-134. Treaty to establish the African Union 58 See Constitution of the Federal Republic of (Ratification and Enforcement) Act of 2003; Nigeria (Certain Consequential Repeals) sec 6 of the National Human Rights Decree 63 of 1999. Commission (Amendment) Act of 2010. 190 Nigeria col. Thus, real conflict still exists ria under section 55 of the Penal Code. between the African Charter and the While the Violence against Persons Maputo Protocol on the one hand and (Prohibition) Act of 2015 has addressed Nigerian domestic laws on the other some of these issues, the law operates hand.62 Under the African Charter, both only in the Federal Capital Territory. civil and political rights as well as socio- economic rights are justiciable. By 5 Policy reform or formulation contrast, only civil and political rights are justiciable under the Nigerian The African Charter and the Maputo 63 Constitution; socio-economic rights Protocol have inspired the development 64 are non-justiciable. The Nigerian of a number of national policies in Nige- Constitution also does not recognise the ria. These policies seek to protect either rights of peoples to existence, free human rights in general or the rights of disposal of their wealth and natural a particular group of people. The resources, development, peace and secu- National Action Plan (NAP) for the rity as well as to a generally satisfactory Promotion and Protection of Human 65 environment. Notwithstanding the Rights in Nigeria was first developed in provision of section 42 of the Nigerian 2006 and later updated in 2009.66 Constitution which generally prohibits Although the NAP document claims discrimination on a number of grounds that the rights it contains are drawn including sex, several laws in Nigeria from domestic, regional and internation- still conflict with the Maputo Protocol. al human rights instruments,67 a close Section 26(2) of the Constitution for look at the document shows significant instance limits women’s rights to trans- influence of the African Charter. For mit their nationality to their foreign instance, the NAP document contains spouses. Sections 228-230, 297, 309 and references to rights to development, 328 of the Criminal Code and sections peace and protected environments and 232-236 of the Penal Code criminalise the African Charter is specifically medical abortion in all circumstances mentioned as one of the primary sources except where the abortion is required to of these rights.68 In addition, the docu- save the life of the woman or to preserve ment contains over 50 references to the her physical or mental health. Contrary African Charter and at least five refer- to article 14(2)(c) of the Maputo Proto- ences to the Maputo Protocol.69 col, Nigerian law does not allow medi- cal abortion in cases of sexual assault, rape or incest. Section 357 of the Crimi- nal Code justifies marital rape, and ‘wife 66 See National Action Plan for the Promotion beating’ is permitted in Northern Nige- and Protection of Human Rights in Nigeria (2006). The 2006 document was updated in 2009. See the National Action Plan for the Promotion and Protection of Human Rights 62 See Egede (n 15 above) 255. in Nigeria (2009-2013). The 2009 document 63 Chap IV, Constitution. See also sec 6(6)(c) of is currently being viewed by the National the Constitution. Human Rights Commission. See ‘NHRC 64 Sec 6(6)(c) of the Constitution. See reviews National Action Plan for promotion, Archbishop Okogie v Attorney General of Lagos protection of human rights’ News Agency State (1981) 2 NCLR 337 350. Nigeria 10 March 2015 http://www. 65 Although some provisions in the Directive nannewsnigeria.com/node/40092 (accessed Principles in Chap II of the Constitution 22 September 2015). speak to peoples’ rights, these Directive 67 NAP (2009-2013) 8-10. Principles are not enforceable in court. See 68 See NAP (2006) 58-64; NAP (2009-2013) 78- secs 14-17 as well as sec 6(6)(c) of the 91. Constitution. 69 As above. Impact of the African Charter and the Maputo Protocol in selected African states 191
The National Gender Policy (NGP) promote specific provisions of the Afri- was adopted in 2006.70 It replaced the can Charter and the Maputo Protocol.73 erstwhile National Policy on Women of 2000. The NGP is aligned with the 6 Court judgments provisions of major international instru- ments on women’s rights, including the The African Charter, and to some extent Maputo Protocol. Although the Maputo the Maputo Protocol, have influenced Protocol was not the only inspiration for judicial decisions in at least four impor- the new Gender Policy, there are a tant ways. These include the develop- number of reasons to believe that the ment of the African Charter supremacy entering into force of the Maputo Proto- jurisprudence, and the use of the Afri- col played a crucial role in mobilising can Charter or the Maputo Protocol as a support for the new gender policy. The basis of remedy, interpretative guidance process that culminated in the adoption and as a source of legitimacy. As early of the new National Gender Policy as 1990, the Nigerian Court of Appeal 71 started in August 2006, less than a in the case of Oshevire v British Caledonian year after the Maputo Protocol came Airways Ltd74 had laid down the princi- into force and within one month after ple that a treaty which has been ratified Nigeria submitted its initial report on and domesticated in Nigeria is superior the AU Solemn Declaration on Gender to other domestic laws with the excep- Equality in Africa. The NGP contains at tion of the Constitution. This decision least four references to the Maputo has been followed in subsequent cases.75 Protocol. The Policy also reinforces arti- cle 2(d) of the Maputo Protocol by The main contribution of the ‘Afri- adopting a 35 per cent affirmative action can Charter supremacy argument’ is policy for women. The affirmative that it empowered domestic courts to action clause of the Policy was used by entertain human rights cases even in various women’s rights groups in Nige- situations where their jurisdiction has ria to push for and realise 33 per cent been ousted explicitly by national legis- representation by women in the Federal lation. In a number of cases, provisions cabinet as at 2011.72 It is unfortunate to of the African Charter have been used as note that women’s representation in basis for seeking remedies before domes- Cabinet under the current administra- tic courts in Nigeria. Only a few exam- tion of President Buhari has dropped ples of these cases are referred to in this significantly. 73 See for instance the National Policy and Plan In addition to the two principal poli- of Action on Elimination of Female Genital Mutilation in Nigeria 2002; National Gender cies discussed above, a number of Policy on Education 2008; National Health national policies have been adopted to Policy 2004; National Strategic Health Development Plan (2010-2015); National Policy on Environment 1999, National Child Policy of 2007; and the National Policy on Education 2004 amongst others. 74 (1990) 7 NWLR 507. 75 See UAC v Global Transporte Oceanic SA (1996) 5 NWLR 291; CRP v Babangida Suit 70 See also the National Gender Policy M/102/92; Comptroller of Nigerian Prisons v Dr Strategic Framework (Implementation Plan) Femi Adekanye (No 2) (2002) 15 NWLR 332 Federal Republic of Nigeria (2008-2013). SC; Fawehinmi v Abacha (1996) 9 NWLR (pt 71 National Gender Policy (2006). 475) 710 CA; Ubani v Director of SSS (1999) 72 See ‘Nigerian women take key cabinet posts’ 11 NWLR (pt 265) 129 CA; Abacha (n 32 afronline http://www.afronline.org/?p=177 above) 228, and Odebunmi v Oladimeji (2012) 86 (accessed 18 October 2011). LPELR 15419 (CA). 192 Nigeria report. In Comptroller Nigerian Prisons v Since the courts have held that the African Dr Femi Adekanye and Others,76 27 people Charter (Act) is like an enactment of the were arrested and detained for close to Federal Government per decree, it follows that if there is a conflict between an 30 months under the Failed Bank enactment ousting the jurisdiction of the (Recovery of Debts) and Financial Court and another which does not, the Malpractices in Banks Decree 18 of Court should lean more on the one 1994. Meanwhile, the decree under (referring to the African Charter) that which they were detained and tried preserves its jurisdiction. ousted the court’s jurisdiction. The trial In all the cases discussed above, the court dismissed the suspension of its African Charter was relied upon as a jurisdiction. On appeal, the Court of basis for seeking remedy before a Appeal stated that the offending decree domestic court in Nigeria. The African ‘totally destroys the presumption of Charter is usually relied upon in addi- innocence in favour of the accused 77 tion to other relevant constitutional under article 7 of the African Charter’. provisions. However, in Agbakoba v Director of State Security Service,81 the In Garuba and Nine Others v Attorney provisions of article 12(2) of the African General of Lagos State,78 10 applicants Charter were clearly resorted to as an mostly juveniles were tried, convicted interpretive guide. In that case, the and sentenced to death. They appealed applicant had been invited to a human against the sentence. While their appeal rights conference in The Netherlands. was pending, the government made On the day he was scheduled to depart, moves to execute them. An application he was intercepted by officers of the was filed to enforce their right under the State Security Service. His passport was Constitution and the African Charter. impounded, without any explanation Even though the fundamental rights offered to him. In short, he missed the provisions of the Nigerian Constitution conference. In its judgment, the as well as the African Charter Act were Supreme Court sought guidance from at the time suspended, the Court held the freedom of movement provision that the international aspects of these under article 12(2) of the African Char- instruments could not unilaterally be ter which explicitly provides that ‘every abrogated. individual shall have the right to leave The Nigerian judiciary further any country including his own’. The demonstrated its creativity in deploying applicant was successful. the African Charter in the case of Akin- In some domestic decisions in Nige- nola v Babangida.79 In this case, the ria, local courts have deployed the Afri- Court was invited to invalidate the can Charter to legitimise claims of rights Newspaper Decree 43 of 1993. Even that were considered very sensitive. In though this decree expressly ousted the order to invalidate a customary law jurisdiction of courts, the Court held which prevented female children of a that:80 deceased man from inheriting his prop- erty, the Nigerian Court of Appeal in Moujekwu v Ejikeme stated as follows:82 76 (1999) 10 NWLR 400. 77 Comptroller Nigerian Prisons (n 76 above) 423. 78 Suit ID/599M/91 (31 October 1991). 79 Reprinted in (1994) Journal of Human Rights Law and Practice 250. 81 (1994) 6 NWLR 475. 80 As above. 82 (2000) 5 NWLR (part 567) 402, 409. Impact of the African Charter and the Maputo Protocol in selected African states 193
And what is more, such a custom has cost-effective procedure for the enforce- clearly discriminated against Virginia, the ment of fundamental rights in Nigeria.88 daughter of Reuben and is therefore Because the Rules predated the adop- unconstitutional in light of the provisions of section 42 of the Constitution of the tion of the African Charter, no reference Federal Republic of Nigeria, 1999 ... was made to the African Charter in the Article 18 of the African Charter on Rules; and no Rules were made subse- Human and Peoples’ Rights specifically quently for the enforcement of the rights provides for the elimination of in the African Charter. discrimination against women.
A similar decision was reached more Confronted with this tricky situa- recently in the case of Nwosu v Nwosu83 tion, the Supreme Court of Nigeria in where the Court of Appeal affirmed a what appeared to be a very liberal construction of the applicable laws held woman’s right to custody of her children 89 pending divorce, by resorting to section in Ogugu v The State that although the 18(3) of the African Charter. In 2014, 1979 FREP Rules did not prescribe rules the Supreme Court issued two landmark for the enforcement of rights in the Afri- decisions, Ukeje v Ukeje84 and Anekwe v can Charter, the provisions of the Char- Nwekwe85 where the court nullified the ter are nonetheless enforceable under customary law that prevented female the 1979 FREP Rules. This reasoning was adopted in subsequent cases such as children and wives from inheriting from 90 their fathers and husbands respectively. Nemi v The State, Bamidele v Alele Williams91 and Ohakosin v Commissioner Even though socio-economic rights are 92 not justiciable under the Nigerian of Police, Imo State. Constitution, the Nigerian Court in In 2009, the 1979 FREP Rules were Odafe v Attorney General of the Federation86 abrogated and replaced with the 2009 has enforced the socio-economic rights FREP Rules. Under the new Rules, the of prisoners to medical care on the basis African Charter is referred to in a of the African Charter. The court has number of occasions. The Rules provide also relaxed the rules of locus standi on for the following overriding objectives:93 the basis of article 13(2) of the African 87 Charter. The Constitution especially Chapter IV as well as the African Charter shall be Another aspect where the African expansively and purposively interpreted and Charter has significantly influenced the applied, with a view to advancing and judiciary is in the deployment of the realising the rights and freedoms contained Fundamental Rights Enforcement in them and affording the protections intended by them. Procedure (FREP) Rules. As a result of the delay and prohibitive cost usually Referring specifically to the African associated with court process in Nigeria, Charter and the Universal Declaration the FREP Rules were designed in 1979 of Human Rights, the 2009 Rules to provide a special fast-track and more mandate courts to respect municipal,
83 (2012) 8 NWLR (Part 1303) 27. 88 See sec 42 of the 1979 Constitution and sec 84 Suit No: SC.224/2004; (2014) LPELR 22724 46 of the 1999 Constitution. (SC). 89 (1994) 9 NWLR 1 26-27. 85 Suit No: SC.129/2013; (2014) LPELR 22697 90 (1994) 1 LRC 376. (SC). 91 Suit B/6M89 Benin High Court. 86 (2004) AHRLR 205 211. 92 (2009) 15 NWLR (part 1164) 229. 87 See Nwankwo v Onomeze-Madu (2009) 1 93 Preamble, 2009 FREP Rules (emphasis NWLR (part 1123) 671, 715-716. mine). 194 Nigeria regional and international bills of rights have 20 each and the United Kingdom cited to it, brought to its attention or that has 19 NGOs having observer which the court is has knowledge of. status with the Commission. Nigerian The Rules also contain a number of CSOs have been more engaged with the other progressive provisions but these African Commission’s individual are not within the purview of this study. complaints procedure than their coun- terparts in other countries of Africa. Out 7 Awareness and use by civil of the 31 communications submitted to society the African Commission in respect of Nigeria as at 2014, at least 25 were filed There is a huge NGO presence in Nige- by CSOs. As stated by Okafor, the Afri- ria and their level of awareness in can Charter and the jurisprudence of the respect of the two instruments is gener- African Commission have served as key ally high. In the 5th periodic report of resource in the hands of Nigerian NGO the Federal Republic of Nigeria to the activists, activist lawyers, minority rights advocates, activist politicians and African Commission, over 300 human 96 rights related civil society organisations activist journalists. More importantly, were listed.94 Due to this huge number the key CSOs working in the field of coupled with the relative shortness of socio-economic rights in Nigeria, the study period, a systematic assess- according to Nigeria’s Fourth Periodic ment of all NGOs and civil society Country Report to the African Commis- organisations (CSOs) in Nigeria was not sion, have relied chiefly on the African undertaken. However, most of the Charter, perhaps because there are no justiciable socio-economic provisions in organisations approached during the 97 course of this study are aware of both the Nigerian Constitution. The same the African Charter and the Maputo is true of CSOs working on the rights of Protocol. women, which have included the Mapu- to Protocol in their programmes. The The African Charter and the Mapu- African Charter and the Maputo Proto- to Protocol have made substantial col feature prominently in the promo- impact on the activities of these CSOs. tional activities of CSOs in Nigeria. They attend sessions of the African Commission regularly and participate 8 Awareness and use by practicing actively in the activities of the Commis- lawyers sion. Nigeria has more NGOs having observers’ status with the Commission The African Charter is generally more than any other country in Africa or popular amongst lawyers than the 95 outside Africa. There are 28 NGOs Maputo Protocol. One of the interview- from Nigeria that have observer status ees, a staff member in the Federal with the African Commission. This Ministry of Justice, stated that the Afri- figure is closely followed by South Afri- can Charter’s provisions are less ca that has 24, Kenya and Senegal that frequently used by government lawyers. According to him, the African Charter 94 See Nigeria’s Fifth Periodic Country Report is more often used in human rights cases (n 23 above) 139-145. See also Nigeria’s Fourth Periodic Country Report (n 23 above) 91-98. 95 See ACHPR ‘NGOs with observer status’ 96 Okafor (n 56 above). http://www.achpr.org/network/ngo/ 97 See Nigeria’s Fourth Periodic Country (accessed 24 September 2015). Report (n 23 above) 91-98. Impact of the African Charter and the Maputo Protocol in selected African states 195 by lawyers for complainants or appli- graduate and postgraduate level. cants. In a review of Nigeria’s leading Procedure for the enforcement of law report, the Nigerian Weekly Law human rights is also part of the curricu- Report (1985-2014), this study found no lum of the Nigerian Law School, less than 70 cases in which the African although emphasis on the African Char- Charter or the African Charter (Ratifica- ter and the Maputo Protocol is minimal. tion and Enforcement) Act was referred.98 More recently, less reference What can be inferred from respons- has been made directly to the African es received from specific Nigerians inter- Charter as a treaty because the African viewed in the course of this study is that Charter Act is more often invoked. emphasis on the African human rights Some lawyers believe it is the Act and system is minimal or non-existent in not the African Charter itself that is part primary and secondary schools as well of Nigerian law. as vocational institutions. Nevertheless, a number of lecture series at all levels It should be recalled that one of the help to promote the African Charter and most visible marks of military dictator- in some cases the Maputo Protocol ship in Nigeria was the repression of the amongst academics, lawyers, judges and media, arbitrary closure of media hous- public officers.100 es, arrest and detention of journalists, amongst others. Some of these abuses The African Charter and to some were challenged before the African extent the Maputo Protocol are widely Commission and the Commission’s referred to in academic publications decisions in most of these communica- such as books and journals. During the tions were widely publicised in the course of this study, a significant media although the visibility of the number of academic publications were Commission’s findings have reduced in found which contained information on recent years. the African Charter and which were authored by Nigerians. Much less were 9 Academic writing and law found on the Maputo Protocol. Conclu- school education sive figures are however unavailable because country-wide searches were not carried out. From the limited searches In 56 out of the 104 faculties of law in carried out, most of the learned papers Nigeria, the African human rights which were written on the African system and especially the African Char- ter is being taught at the undergraduate 99 100 Nigerian Institute of Advanced Legal level. In some faculties, it is taught as Studies, Lagos 2005-2010 annual Human a fully-fledged module, which may be Rights training workshop sessions; National Judicial Institute Abuja, human rights compulsory or elective. In other facul- workshop sessions for judges of Federal and ties, it is taught as part of public interna- State High Courts, Sharia Courts and lower court judges nationwide (2002 to date); tional law. Most first and second Nigerian Bar Association (NBA) Human generations universities encourage Rights and Environment Committee Annual Continuing Legal Education Training research and thesis writing on the Afri- Programmes for legal practitioners at all can human rights system at both under- levels nationwide; National Human Rights Commission (NHRC) Abuja/Civil Society Organisations training workshop and seminar series on Human Rights. Papers 98 A list of these cases is on file with the author. presented during these series of lectures are 99 See Nigeria’s Fourth Periodic Country usually published. See also Nigeria’s Fourth Report (n 23 above) 6. Periodic Country Report (n 23 above) 6-7. 196 Nigeria
Charter by Nigerians were published in of the African Commission. Since1998, foreign journals, and few in local jour- the NHRC in conjunction with relevant nals. The impact of the African Charter partners has been organising training will greatly improve if more academic workshops and a public lecture series on writing on the African Charter and the the African human rights system. One Maputo Protocol are published locally. of the thematic focuses of the NHRC is ‘women and gender matter’. To this 10 National human rights end, the NHRC has an advocacy group institutions on violence against women. The NHRC coordinates the preparation of Nigeria’s The Nigerian National Human Rights periodic report in conjunction with the Commission (NHRC) was established Ministry of Justice. The NHRC also in 1995. The law establishing the coordinated the development of the Commission was amended in 2010 by National Action Plan on the Promotion the National Human Rights Commis- and Protection of Human Rights in sion (Amendment) Act. It is specifically Nigeria which is substantially modeled mandated, amongst other things, to deal on the African Charter and the Maputo with all matters relating to the promo- Protocol. Currently, follow-up and tion and protection of human rights implementation of concluding observa- guaranteed by the Nigerian Constitu- tions and decisions of the African tion, the African Charter and other Commission is not one of the thematic international human rights treaties, focus areas of the NHRC. including the Maputo Protocol.101 The Governing Council of the NHRC 11 State reporting comprises 16 members including a chair, three representatives of cognate The reporting process is coordinated by ministries, three NGO representatives, the Federal Ministry of Justice. From a two legal practitioners, three media review of the second, third, fourth and representatives, one representative of fifth periodic reports of Nigeria under organised labour, two women represent- the African Charter, the reporting atives as well as the Executive Secretary process commences with the appoint- of the Commission.102 ment of a consultant. Then, there is a Core Drafting and Review Team From evidence gathered during this comprising members drawn from the study, the African Charter and the Federal Ministry of Justice and the Maputo Protocol have influenced the National Human Rights Commission, NHRC’s activities in the following which meets with the consultant to ways. The NHRC has an affiliate status develop a framework and work plan for with the African Commission, regularly the report writing; places call for inputs attends sessions of the Commission, and in newspaper adverts in at least two participates actively in the Commis- national dailies; collates and analyses sion’s activities. The NHRC also raises the inputs supplied as a result of the awareness in Nigeria about the African newspaper adverts; and produces the Charter, Maputo Protocol and activities first drafts for peer review. Once this is done, a two-day peer review workshop 101 Sec 5(a) of the National Human Rights is usually called where all stakeholders ‒ Commission (Amendment) Act 2010. 102 Sec 2(2) of the National Human Rights from the relevant ministries, agencies, Commission (Amendment) Act 2010. Impact of the African Charter and the Maputo Protocol in selected African states 197 human rights NGOs, legislators and the by limiting this study to the second, general public ‒ meet to review the first third and fourth reports. The concluding draft and produce the second draft. observations in respect of the second periodic report could not be accessed by The second draft will then be vali- the author. There is also no information dated by a one-day stakeholders’ forum in the third periodic report on steps to be attended by the core drafting and taken by the government to implement review team, the peer reviewers, the the Commission’s observations on the media and members of the public. second periodic report. However, the Inputs from the one-day stakeholders’ fourth periodic report outlined specific forum are incorporated to produce the steps taken by the government to imple- final draft. The final draft is then ment observations made by the submitted to the Federal Executive Commission in the third periodic report. Council through the Minister of Justice. A closer look at the responses however After approval by the Federal Executive reveals that five out of the seven recom- Council, the final report is then sent to mendations are yet to be fully imple- the Secretariat of the African Commis- mented.105 One of the pertinent sion. concluding observations following review of Nigeria’s Fourth Periodic There is no evidence of any occa- report was that Nigeria should take sion where concluding observations of steps to ratify the Charter on Democra- the African Commission were dissemi- cy, Elections and Good Governance. nated to the public at large by the state. This treaty was ratified on 1 December The Observations are also not translated 2011. The Commission also recom- into the three major languages. Civil mended that government should enact society groups however use concluding at the federal level, legislation prohibit- observations in their advocacy activities. ing FGM, violence and other discrimi- Nigeria has thus far complied with its natory practices against women. reporting obligation under the African Pursuant to this recommendation, the Charter, having submitted up to date Violence against Persons (Prohibition) five periodic reports to the African 103 Act was passed into law in 2015. Commission. The first report was Concluding observations in respect of submitted in 1990; the second in 2003; the Fifth Periodic Country Report the third in 2008; the fourth in 2011 and submitted to the African Commission in the fifth in 2014. Nigeria has yet to July 2014 and considered at its 56th submit a specific report on efforts aimed ordinary session is yet to be available on at promoting and protecting the rights the Commission’s website. It is hoped contained in the Maputo Protocol. that when these concluding observations are available, the government will do The Commission’s practice with the needful to implement them before regard to concluding observations was the next reporting cycle. not fully developed until 2001,104 there-
103 One of the reasons that prompted Nigeria to submit its Fourth Periodic Report on time was the need to respond to the concerns raised by the Commission in the concluding observations issued after examination of the 105 See recommendations 35, 36, 37, 41 & 42 of Third Periodic Report. See Nigeria’s Fourth the Concluding Observations and Periodic Country Report (n 23 above) 1. Recommendations on the Third Periodic 104 Viljoen (n 30 above) 387. Report of the Federal Republic of Nigeria. 198 Nigeria
12 Communications involving Project v Nigeria,111 five Nigerians were Nigeria arrested and detained by the Nigerian military government without trial for Between 1987 and 2014, a total of 34 about two years. On behalf of the communications were submitted against detainees, the Constitutional Rights Nigeria.106 Out of these communica- Project (CRP) submitted a communica- tions, nine were declared inadmissible; tion to the African Commission. In its three were withdrawn; one was resolved findings, the Commission found Nigeria via friendly settlement; 21 were declared in violation of articles 6 and 7 of the admissible.107 Violations were found in African Charter and urged Nigeria to 19 cases out of the 21 communications charge or release the complainants. that were found to be admissible.108 Out Soon after the African Commission’s of the 19 cases in which the African decision, the Nigerian government 112 Commission found violations against complied by charging the detainees. Nigeria, full compliance was recorded In another case, Centre for Free Speech v 113 only in two; partial compliance in 14,109 Nigeria, four Nigerian journalists and total noncompliance in three.110 were tried and convicted secretly by a military tribunal. During the trial, they At least in two cases, the Nigerian were not allowed access to counsel of government fully complied with the their choice. The military decree setting recommendations of the African up the tribunal also ousted the court’s Commission. In Constitutional Rights jurisdiction. The complainants thus were without a right of appeal. In a communication submitted on their behalf by the Centre for Free Press, the 106 This information is based on facts available African Commission found Nigeria in on the Commission’s website at http:// violation of articles 6, 7 and 26 of the www.achpr.org/states/nigeria/ (accessed 6 November 2015). It should be noted that African Charter. The African Commis- officially there are 33 communications listed sion urged the Nigerian government to against Nigeria on the Commission’s website. This is because communication release the journalists. They were even- 270/03 Access to Justice v Nigeria which was tually released.114 decided at the 13th extraordinary session of the Commission on 25 February 2013 is yet to be published. However, information in the Partial compliance was recorded in 34th Activity Report of the Commission 115 reveals that the case is a merit decision. four cases. In Constitutional Rights 107 These figures are based on the author’s Project (in respect of Akamu, Adega and analysis of all the 34 communications 116 submitted to the Commission in respect of Others) v Nigeria, CRP filed a commu- Nigeria as at 2014. nication before the African Commission 108 Communication 425/12 Legal Defence and Assistance Project v Nigeria which was declared admissible at the Commission’s 16th extraordinary session on 20-29 July 2014 is 111 Constitutional Rights Project v Nigeria (2000) yet to be decided on the Merit. Also, as AHRLR 248 (ACHPR 1999) (Nigerian earlier discussed, the decision of the Detention case). Commission on the merit in communication 112 See F Viljoen & L Louw ‘State compliance 270/03 Access to Justice v Nigeria is yet to be with the recommendations of the African published. As a result, it was not possible to Commission on Human and Peoples’ ascertain whether violation was found or Rights,1994-2004’ (2007) 101 American not. Journal of International Law 1 10. 109 See L Louw ‘An analysis of state compliance 113 Centre for Free Speech v Nigeria (2000) AHRLR with the recommendations of the African 250 (ACHPR 1999) (Nigerian Journalists Commission on Human and Peoples’ Rights’ case). unpublished LLD thesis, University of 114 Viljoen & Louw (n 112 above) 10. Pretoria, 2005 56. 115 Louw (n 109 above). 110 As above. 116 (2000) AHRLR 180 (ACHPR 1995). Impact of the African Charter and the Maputo Protocol in selected African states 199 on behalf of Akamu, Adega and others Following the African Commis- who were convicted and sentenced to sion’s recommendations in SERAC v death by a military tribunal. After Nigeria, the recommendations were consideration of the communication, widely disseminated by SERAC.122 The the African Commission recommended Nigerian government subsequently that the complainants should be established the Ministry of Niger Delta released. Although the complainants with a special mandate on the develop- were not released, the death sentence ment of the Niger Delta area. This was imposed upon them was commuted to followed by a Development Master Plan terms of imprisonment.117 In a similar specifically designed for the Niger case, Constitutional Rights Project (in Delta. The Niger Delta Development respect of Zamani Lakwot and 6 Others) v Commission (NDDC) has also taken Nigeria,118 the African Commission some measures to address health and recommended the release of the development concerns of the Ogoni.123 complainants who had been sentenced However, critical issues such as impact to death by a special military tribunal. assessment, prosecution of erring offi- Following the African Commission’s cials, and comprehensive clean-up of the recommendation, the complainants’ Ogoniland are yet to be adequately death sentence was commuted to five addressed.124 It is noteworthy that the years’ imprisonment, and they were incumbent President, Muhammadu later released.119 Following the African Buhari has initiated programmes for the Commission’s recommendation in clean-up of Ogoniland.125 Constitutional Right Project v Nigeria,120 11 soldiers who had been detained Due to the failure of the Nigerian unjustly for a long period were released. government to fully implement the deci- They were however not paid any sion of the African Commission in compensation as recommended by the SERAC v Nigeria, the Registered Trus- African Commission. tees of the Socio-Economic Rights Action Project (SERAP) on 23 July Out of the 13 cases in which the 2009 filed a complaint against Nigeria at then military government of Nigeria the ECOWAS Community Court of clearly failed to comply with the recom- Justice (ECCJ). The plaintiff, in the case mendations of the African Commission, titled SERAP v Nigeria (Environ- at least ten cases were to some extent ment),126 complained that the Nigerian implemented upon transition to democ- government through its agencies, agents racy.121 A number of military decrees and some multinational corporations earlier declared by the African Commis- violated the rights to health, adequate sion to violate the African Charter were standards of living and rights to repealed or amended. Some of the economic and social development of the detainees that have been vindicated by the African Commission were also 122 M van der Linde & L Louw ‘Considering the released. interpretation and implementation of art 24 of the African Charter on Human and Peoples’ Rights in light of SERAC communication’ (2003) 3 African Human Rights Law Journal 167 184. 117 Louw (n 109 above) 26. 123 As above. 118 (2000) AHRLR 183 (ACHPR 1995). 124 Louw (n 109 above) 48. 119 See also Louw (n 109 above) 27. 125 See Premium Times (n 11 above). 120 (2000) AHRLR 241 (ACHPR 1999). 126 SERAP v Nigeria ECW/CCJ/JUD/18/12, 121 Louw (n 109 above) 56. Judgment of 14 December 2012. 200 Nigeria
Niger Delta people. In a groundbreak- strengthening co-operation with NGOs. ing judgment delivered by the ECCJ in The mission consisted of Commissioner December 2012, the Court found the Dankwa and Amega. The mission government of Nigeria in violation of recommended amongst others that: the the African Charter and ordered it to: programme for transition of power from take all measures as soon as possible the military to civilians should be ensure restoration of the environment of followed through and that Nigerians the Niger Delta; prevent occurrence of should be allowed to freely decide on damage to the environment; and hold those to govern them; members of Niger perpetrators of the environmental Delta communities should be compen- damage accountable. It remains to be sated for the damage done to their envi- seen whether the government of Nigeria ronment through government oil will comply with this decision. exploration activities; the ‘Ogoni 19’ should be tried speedily and the condi- In addition to the decision discussed tions under which they lived should be above, the ECCJ has also found Nigeria improved; and that the military govern- in violation of various provisions of the ment should release the acclaimed African Charter amongst other interna- winner of the 1993 Presidential election, tional human rights instruments in at Chief MKO Abiola, from prison. Most least three cases, namely Ugokwe v Nige- of these recommendations have been 127 128 ria, Djot Bayi v Nigeria, and SERAP implemented on way or the other. v Nigeria (Education).129 In a study carried out in 2013 which analysed the The Special Rapporteur on the three cases cited above, it was found Rights of Women in Africa conducted a that full compliance was recorded in promotional mission on the rights of two.130 women in Nigeria in 2001. In her report, the Rapporteur recommended 13 Promotional visits by the that the government of Nigeria should: African Commission take measures to protect women against all forms of violence, as well as tradi- The first mission of the African tional beliefs and practices; ensure that Commission to Nigeria was undertaken the application of ‘Sharia’ does not from 7 to 14 March 1997. The mission constitute an impediment to the promo- was approved by the African Commis- tion and protection of women's rights; sion at its 2nd extraordinary session in and ensure that laws of subnational Kampala, Uganda, in 1995. The aims of governments respect international the mission included gathering informa- human rights norms that the Nigeria has tion about a number of communications willfully accepted. Today, almost all the which were pending before the African issues raised in the recommendations of Commission, visiting Ogoniland and the Special Rapporteur remain part of the lingering problems with regards to women’s rights in Nigeria. 127 ECW/CCJ/JUD/03/05. 128 ECW/CCJ/JUD/01/09. Another promotional mission was 129 ECW/CCJ/JUD/07/10 130 HS Adjolohoun ´Giving effect to the human undertaken to Nigeria by the African rights jurisprudence of the Court of Justice of Commission in 2009. The mission the Economic Community of West African states: compliance and influence’ recommended amongst others that unpublished LLD Thesis, University of government should: ensure passage of Pretoria 2013 389. Impact of the African Charter and the Maputo Protocol in selected African states 201 laws aimed at addressing domestic promotional missions in Nigeria. What violence and discrimination against is however clear is that missions give women; review the powers, functions more visibility to the work of the and funding of the NHRC, make the Commission. They also increase public article 34(6) declaration under the awareness about the African Charter Protocol to the African Charter on the and the Maputo Protocol. As to holding Establishment of the African Court; of African Commission’s sessions in reform and restructure the Independent member states, two sessions of the Afri- National Electoral Commission; reduce can Commission were held in Nigeria, overcrowding in prisons and establish namely, the 9th ordinary session, 18-25 an independent oversight body to inves- March 1991, and the 44th ordinary tigate allegations of police malpractices, session, 10-24 November 2008. This including unlawful killings. At least two greatly impacted on the level of aware- of these recommendations have been ness about the African Charter. It also satisfactorily implemented based on the increased the visibility of the African researcher’s observations during this Commission in Nigeria. study. In 2010, a new electoral law was adopted strengthening the independence 14 Factors that may impede or of the electoral body and providing for enhance the impact of the prosecution of electoral offenders, 131 African Charter and the amongst others. The enabling law of Maputo Protocol the NHRC was also reviewed with the new law providing for operational, The factors which are found in this structural and financial independence of study to have enhanced the impact of the NHRC.132 The NHRC currently the African Charter and the Maputo enjoys ‘A’ status according to the Inter- Protocol include the following: national Coordinating Committee of National Institutions for the Promotion (a) Strong civil society: This includes NGO and Protection of Human Rights activists, activist lawyers, minority (ICC).133 rights advocates, activist politicians and activist journalists. The NGOs espe- Between 23 August and 2 Septem- cially Constitutional Rights Project, ber 2011, Commissioner Atoki as the Civil Liberties Organisations and Media Rights Agenda are well estab- Special Rapporteur for Prisons and lished and well resourced. Civil society Conditions of Detention in Africa was incredibly creative in deploying the undertook a prisons’ promotional African Charter. mission to Nigeria. The full report of (b) Domestication: Perhaps the most impor- this mission is yet to be made public. It tant enhancing factor is the domestica- is very difficult to state conclusively the tion of the African Charter in 1983. impact of the African Commission’s The fact that the African Charter was already part of Nigerian law greatly eased the work of CSOs in convincing 131 See the Electoral Act 2010. local judges to apply the African Char- 132 See the National Human Rights ter. This also helped the judges to Commission (Amendment) Act 2010. develop the far reaching ‘African Char- 133 See International Coordinating Committee ter superiority propositions’. of National Institutions for the Promotion and Protection of Human Rights ‘Chart of (c) Number of communications against Nige- the status of national institutions’ (2014) ria: The impact of the African Charter www.ohchr.org/Documents/Countries/ NHRI/Chart_Status_NIs.pdf (accessed 20 in Nigeria has been enhanced by the November 2015). volume of citable jurisprudence set out 202 Nigeria
by the Commission in communications tor-General of Nigeria’s Consumer submitted against Nigeria. Protection Council, which office she (d) Judicial activism: In partnership with still hold as at the time of compiling activist CSOs, progressive judges have this report. demonstrated exceptional courage and creativity in giving effect to the African It is noteworthy that much has changed Charter. since Nigeria returned to civil rule in (e) Academic writings: Academic writings of 1999. Creative use of the African Char- commentators like Odinkalu, Udom- ter by domestic courts has dropped bana, Umozurike, Falana and Osita significantly. The same is true of the Eze amongst others have greatly number of communications filed against enhanced the level of awareness about Nigeria before the African Commission. the African Charter in Nigeria. However, civil society advocacy and the (f) Support by the Commission: Another fac- general level of awareness about the tor that has enhanced the impact of the African Charter and the Maputo Proto- African Charter and the Maputo Proto- col in Nigeria is the direct support and col have improved. The Maputo Proto- encouragement given to CSOs in Nige- col has also continued to exert steady ria by the African Commission. influence on the executive arm of (g) The overall international and domestic con- government as well as civil society texts: One factor that is often excluded organisations. However, the impact of from consideration is the overall inter- the Protocol on legislative and judicial national and domestic context which was favourable or even supportive of activities has been less than satisfactory. the activities of the CSOs and that of While laws and judicial decisions have the African Commission. Such context progressively been aligned with provi- includes the repression and human sions of the Maputo Protocol, explicit rights abuses by the military despots in reference to the Protocol in legislation Nigeria, the suspension of Nigeria from the Commonwealth of Nations in 1995 and judicial decisions has been the and the general relegation of Nigeria to exception rather than the norm. It is the status of a pariah nation by foreign assumed that the absence of one or nations and donors during the long more of the conditions which earlier years of military dictatorship. enhanced the impact of the Charter is (h) Membership of the Commission: Up to the responsible for the limited impact of the time of compiling this report of Nige- African Charter and the Maputo Proto- ria, two Nigerians have served on the African Commission. These include col in Nigeria during the study period. Professor Oji Umozurike (1989-1997) and Ms Catherine Modupe Atoki (2007-2013). Most importantly, their appointments have contributed to the development of the NHRC. After his retirement from the African Commis- sion, Professor Umozurike was appointed on the Board of the NHRC in 2000. Ms Atoki was until her appointment a Special Rapporteur of the NHRC on Women and Gender related matters. Ms Atoki was also a member of the Governing Council of the NHRC until 2007 when she was appointed to the African Commission. After serving her term at the African Commission, she was appointed Direc- THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN SIERRA LEONE
Augustine Sorie Marrah*
1Introduction works and general awareness of human rights.4 Sierra Leone is one of the world’s least developed countries, with a population Although there has been an increase of about six million people and high in legislation in favour of women, tradi- levels of entrenched poverty, illiteracy tional practices and societal attitudes to and youth unemployment.1 Sierra women and their livelihoods remain Leone is a multi-party democracy with a largely unchanged. A recent study by fusion of presidential and parliamentary Plan International, Save the Children systems of government. While women and World Vision International make up the highest percentage of the concluded that teenage pregnancy and national population, they constitute just gender-based violence are on the rise 13,2 per cent of the current parliament.2 across the country mainly due to the Ebola Virus Disease (EVD).5 The most Sierra Leone is a state party to most recent incident of sexual violence was in international treaties or conventions the case of a girl who was gang-raped 6 including the African Charter, and has along the main beach in Freetown. recently ratified the Maputo Protocol.3 While Sierra Leone continues to face Sierra Leone’s Constitution guaran- enormous challenges in upholding tees fundamental human rights and free- human rights within its borders, it continues to record progress in the areas 4 ‘The state of human rights in Sierra Leone of legislative and other policy frame- 2013’ http://www.hrcsl.org/ (accessed 10 November 2015). 5 Save the Children ‘Children Report increased exploitation, teenage pregnancies in Ebola-affected Sierra Leone’ http://www. savethechildren.org/site/apps/nlnet/conten t2.aspx?c=8rKLIXMGIpI4E&b=9241341&c t=14736265¬oc=1 (accessed 20 Septem- * LLM HRDA (Pretoria); Secretary, General ber 2015). Also see Awoko ‘Sierra Leone Legal Council in Sierra Leone. News: Sexual penetration on the increase in 1 UNDP ‘About Sierra Leone’ http://www. Kenema District’ http://awoko.org/2015/ sl.undp.org/content/sierraleone/en/home/ 08/21/sierra-leone-news-sexual-penetration- countryinfo.html; Sierra Leone Demograph- on-the-increase-in-kenema-district/ ics Profile 2014 http://www.indexmundi. (accessed 10 November 2015). com/sierra_leone/demographics_profile. 6 UN in Sierra Leone ‘Statement from the html (accessed 10 November 2015). United Nations Country Team in Sierra 2As above. Leone over the rape and murder of a young 3 Ratified on 2 July 2015. woman at Lumley Beach, Freetown’
203 204 Sierra Leone doms to all. Section 15 of the does not apply to any law regarding Constitution7 guarantees fundamental adoption, marriage, divorce, burial, human rights and freedoms of the indi- devolution of property on death or other vidual notwithstanding their ‘race, tribe, matters of personal law. Women in Sier- place of origin, political opinion, colour, ra Leone face discrimination in custom- creed or sex, but subject to respect for ary laws relating to marriage, property the rights and freedoms of others and for distribution, adoption and constitutional the public interest’. These rights include recognition. the right to life and liberty, security of the person, freedom of movement, free- The Constitution of Sierra Leone is dom of expression, conscience and evidently out of touch with modern assembly, and protection from depriva- principles of good governance and the tion of property. overall realities of democratic processes. There is currently a Constitutional The Constitution of Sierra Leone Review Committee11 that is charged does not guarantee socio-economic with the mandate of formulating a new rights as they only constitute part of the national constitution reflecting the aspi- ‘fundamental principles of state policy’.8 rations of the peoples of Sierra Leone in Although the Constitution broadly the current political and social-econom- enshrines most civil and political rights, ic era both nationally and globally. A enjoyment of these rights is however representative of the Sierra Leone Bar limited by claw-back clauses. For Association on the committee stated instance, even though the Constitution that the African Charter has become the guarantees the right to life, capital primary source of consultation in the punishment is still legal and can be used area of human rights and ‘is very useful in some circumstances, namely murder in putting together the new bill of rights and treason.9 for Sierra Leone’. She remarked that she was not aware of the African Charter In addition to the limited rights until her appointment to the committee. contained in the Constitution of Sierra Leone, section 27(4)(d) which has been 2 Ratification and domestication termed the notorious constitutional provision in relation to women’s rights Sierra Leone has a dualist system of further allows discriminatory laws to be incorporating international laws. This applicable to women.10 Section 27(4)(d) means that Sierra Leone must domesti- states that the non-discrimination clause cate a treaty or international convention in order for that treaty or international 6 20 August 2015 http://sl.one.un.org/2015/ convention to constitute part of its body 08/20/statement-from-the-united-nations- of laws. Because of this, international country-team-in-sierra-leone-over-the-rape- and-murder-of-a-young-woman-at-lumley- instruments do not automatically form beach-freetown/ (accessed 10 November part of the legal regime of Sierra Leone 2015). 7 Act 6 of 1991. until they are domesticated. 8 Chap II of the Constitution. 9 Sec 16 of the Constitution. 10 Constitutional Review Committee, Republic Although the African Charter and of Sierra Leone ‘“Expunge the infamous Sec the Maputo protocol have been ratified 27(4) (d) and (e) now” Women demand’ available at http://constitutionalreview. gov. sl/site/MediaCenter/NewsPressReleases/ 11 Constitutional Review Committee website expunge_infamous_sec27(4)(d)_(e)_wome http://constitutionalreview.gov.sl/site/Hom n_demand.aspx (accessed 10 March 2016). e.aspx (accessed 20 September 2015). Impact of the African Charter and the Maputo Protocol in selected African states 205 by Sierra Leone, they have not been Attorney General in the Ministry of incorporated into the municipal laws of Justice. The latter is the principal legal Sierra Leone. The African Charter was advisor to the government of Sierra ratified on 21 September 1983 while the Leone and has an international division Maputo Protocol was ratified in July that handles treaties or other instru- 2015 some twelve years after Sierra ments to which Sierra Leone is a state Leone signed the Protocol. The instru- party. ment was placed before parliament by the Minister of Social Welfare, Gender The Ministry of Social Welfare, and Children’s Affairs supported by Gender and Children’s Affairs is the numerous civil society groups. A senior main focal point for the Maputo Proto- official in the Foreign Affairs Ministry col. Although it collaborates with the noted that ‘Sierra Leone did not enter two other ministries mentioned above, any reservations while ratifying the Afri- the gender ministry has been involved can Charter and the Maputo Proto- with the Maputo Protocol more than col’.12 any other governmental entity in Sierra Leone. Broadly speaking, international law can become part of domestic law by 3 Legislative reform or adoption either the act of incorporation or through judicial use. However, provi- Sierra Leone has not undertaken any sions from the African Charter and significant legislative reforms in the light Maputo Protocol have not been relied of the African Charter and the Maputo upon by Sierra Leonean courts. The Protocol. The enactment of what have African Charter and the Maputo Proto- been dubbed ‘the three gender laws’ the col have been rarely (if at all ever) used Domestic Violence Act 2007, the Regis- in binding judicial precedents which tration of Customary Marriage and would have incorporated provisions of Divorce Act 2008 and the Devolution of these instruments into the laws of Sierra Estates Act 2007 – were prompted, in Leone. the opinion of civil society, by the grow- ing awareness and use of the African The Ministry of Justice and Minis- Charter amongst other international try of Foreign Affairs and International treaties. Co-operation are the principal ministries concerned with treaties and other inter- The Domestic Violence Act 2007 national instruments signed by Sierra addresses issues of widespread violence Leone. There is specifically a human against women especially in domestic rights division within the Ministry of settings in Sierra Leone in line with arti- Foreign Affairs charged with the respon- cle 4 of the Maputo Protocol, which sibility of handling, compiling and deals with the rights of women to life, advising the government mainly in integrity and security. respect of ratification of human rights treaties signed by Sierra Leonean pleni- The Registration of Customary potentiaries. In respect of ratification Marriage and Divorce Act was passed and incorporation, the Ministry of to give recognition to customary Foreign Affairs liaises with the Office of marriages, which are the most contract- ed in the country. This law makes it mandatory for customary marriages to 12 Interview granted on 3 August 2015. 206 Sierra Leone be registered and this is in line with arti- vant provisions of the African Charter cle 6(d) of the Maputo Protocol. This and the Maputo Protocol. Act also extends recognition of custom- ary divorce which women can now 4 Policy reform or adoption obtain unlike before. This aspect relates to article 7 of the Maputo Protocol. The government’s national policies have not been directly geared towards imple- The Devolution of Estate Act was mentation of the African Charter or the enacted to address issues of inheritance Maputo Protocol but some inevitably of property by women upon the demise address crucial human rights issues of their spouses. Before the passage of contained in the African Charter and this law, women whose husbands died the Maputo Protocol. intestate could not inherit if their tribal customary laws did not provide as such. The Minister of Social Welfare, The content of this legislation is in line Gender and Children’s Affairs noted with article 21 of the Maputo Protocol, that ‘government has taken both legisla- which deals with a widow’s right to tive and policy measures to address inheritance. harmful practices to women’.16 He stat- ed that the President has, inter alia, In 2012, the Sexual Offences Act endorsed the national campaign for the was passed in order to address the rising minimum 30 per cent quota of women tide of sexual violence across the coun- in political decision-making positions. try. This could very well be interpreted He maintained that Sierra Leone is the as fulfilment of Sierra Leone’s obliga- first country in the sub-region to declare tion under article 4(2)(a) of the Maputo International Women’s day – 8 March – Protocol.13 The sexual offences law for as a national public holiday. The Agen- the first time also makes provision for da for Prosperity17 which is the govern- free medical treatment for sexual ment’s roadmap for governance and violence victims.14 The Executive development in Sierra Leone has gender Director of Advocaid15 noted that the equality and women’s empowerment as enactment of the Sexual Offences Act one of its eight pillars. The government was prompted by advocacy from civil states in the said document that ‘it is society consortiums in partnership with committed to addressing Gender Equal- international actors and that the Maputo ity and Women’s Empowerment in the Protocol was frequently cited during the area of legal and policy reforms’.18 process of enactment. A senior official in the Attorney-General’s office main- There is a national healthcare policy tained that the Disability Act of 2011 for free medical services to pregnant and the Legal Aid Act of 2012 were all women, nursing mothers and children in compliance with the state’s interna- across the country which has been in tional obligations arising from the rele- force since April 2010. This has helped
13 Art 4(2)(a) provides that state parties shall take appropriate and effective measures to: 16 Interview with Hon Emmanuel M Kaikai on (a) enact and enforce laws to prohibit all 7 August 2015. forms of violence against women including 17 ‘Agenda for Prosperity’ http://www.undp. unwanted or forced sex whether the violence org/content/dam/sierraleone/docs/project takes place in private or public. documents/povreduction/undp_sle_The%2 14 Section 39 of the Sexual Offences Act 2012. 0Agenda%20for%20Prosperity%20.pdf 15 Advocaid is a leading women’s right (accessed 10 November 2015). organisation in Sierra Leone. 18 As above. Impact of the African Charter and the Maputo Protocol in selected African states 207 in some way to reduce the maternal and Charter and the Maputo Protocol, espe- infant mortality rates in the country.19 cially in their advocacy activities. There is also a National HIV Prevention Through this entity, the African Charter Strategy 2011-2015 addressing preven- and Maputo Protocol are thus becoming tion of infections and the treatment, care familiar instruments within civil society and support of those infected.20 activism although their usage in the courtrooms still has a long way to go. 5 Court judgments Currently the Society for Democrat- ic Initiatives (SDI-SL) has filed two The African Charter and the Maputo applications in the Supreme Court chal- Protocol are rarely cited in court deci- lenging certain public order provisions sions in Sierra Leone. This is partly on the grounds of the African Charter because they have both not been incor- including other international treaties.22 porated into the laws of Sierra Leone. It could also be attributed to the fact that Panels are yet to be constituted for these lawyers very seldom reference or cite actions. them in their pleadings or submissions The Human Rights Commission of in court. The current president of the Sierra Leone employs the African Char- Sierra Leone Bar Association remarked ter and the Maputo Protocol in arriving that ‘the African Charter and the Mapu- at some of its quasi-judicial decisions.23 to Protocol have not been very popular amongst lawyers in Sierra Leone’.21 Also, human rights related public inter- 6 Awareness and use by civil est litigation is few and far between in society organisations Sierra Leone, another reason for the low levels of awareness of the African Char- Ibrahim Tommy, the Executive Director ter in the courtrooms of Sierra Leone. of the Centre for Accountability and Rule of Law, a leading human rights In recent times, a group of female organisation in Sierra Leone, held the lawyers formed an organisation called view that the African Charter and the Legal Access through Women Yearning Maputo Protocol are no longer unfamil- for Equality Rights and Social Justice iar instruments to civil society groups (LAWYERS). This group of female but expressed doubt as to the apprecia- legal practitioners use both the African tion of the contents of those instruments by human right activists. A few organi- sations – such as Prison Watch SL, 19 Sierra Leone previously had one of the worst Human Right Defenders, and Amnesty statistics on maternal and infant mortalities. See http://www.sl.undp.org/content/sierra International – have applied for observer leone/en/home/mdgoverview/overview/m status24 with the African Commission dg4.html check link and provide description; Sierra Leone infant mortality rate http:// but none has been granted so far. Alpha www.indexmundi.com/sierra_leone/infant_ mortality_rate.html (accessed 10 November 2015). 20 National HIV/AIDS Secretariat, Sierra 22 Interview with Emmanuel Saffa Abdulai, Leone ‘Sierra Leone National HIV Executive Director, Society for Democratic Prevention Strategy 2011-2015’ http://www. Initiatives, 4 August 2015. nas.gov.sl/publication/124-sierra-leone-nati 23 Interview with Doris Sonsiama, Senior onal-hiv-prevention-strategy-2011-2015 Human Right Officer, Human Right (accessed 16 November 2015). Commission, 4 August 2015. 21 Interview with Ibrahim Sorie, President 24 Email interview with Alpha Sesay, legal Sierra Leone Bar Association, 3 August officer – Open Society Foundation, 2015. 16 November 2015. 208 Sierra Leone
Sesay, a legal officer at the Open Society The Executive Director of the Socie- Foundations at the Hague observed that ty for Democratic Initiatives remarked there is a growing interest in the African that awareness of both instruments is Charter and the Maputo Protocol by rising within civil society as they are local NGOs in Sierra Leone and this, he used oftentimes as advocacy tools but said, was evidenced by their presence at noted that the same could not be said the African Commission’s 57th ordinary for the implementation of the rights session notwithstanding their non- contained in the said instruments. observer status.25 The UN Country Team referred to A senior member26 of LAWYERS the Maputo Protocol in their state- hinted that the Maputo Protocol became ment27 on a recent rape incident in Sier- an every day read during their advocacy ra Leone: for the ratification of the said protocol. She noted she was a participant in some The UN recalls that sexual assault against training on the Maputo Protocol in women, especially gang rape, was rampant during the 1991-2002 civil war in Sierra Tanzania and that most of the provi- Leone. The UNCT is also cognizant of the sions of the Maputo Protocol have fact that the government of Sierra Leone formed the aims and objectives of their passed legislation in 2007 making the organisation. sexual abuse of women a criminal act. In addition, it reminds the authorities that The Executive Director of Advocaid Sierra Leone ratified the African Charter on Human and People’s Rights on the noted that the African Charter and the Right of Women in Africa, a Charter that Maputo Protocol are the tools they requests the state parties to protect women mainly use in their trainings of prison from all forms of violence, particularly officers in regards their handling of sexual and verbal violence: female inmates. In her opinion, aware- ‘States Parties shall adopt and implement ness of these instruments is increasing appropriate measures to ensure the but adherence to the provisions of those protection of every woman’s right to instruments is far from satisfactory. respect for her dignity and protection of women from all forms of violence, Ms Yasmin Jusu-Sheriff, a senior particularly sexual and verbal violence.’ human rights lawyer and civil society (Article 3/4, Protocol to the African Charter on Human and People’s Rights on activist maintained that while awareness the Right of Women in Africa). and use of both the African Charter and Maputo Protocol are of appreciable 7 Incorporation in law school levels within the civil society sector, she education and academic lamented that such is not the same with writings magistrates and judges. She noted that civil society would often use these instruments in advocacy activities prior The Department of Law at the Universi- to their ratification but would usually ty of Sierra Leone has for the first time abandon them after ratification. introduced a human rights module in the law programme. This appears to be inspired by the growing recognition of the African Charter and the Maputo 25 As above. 26 Christiana Davies-Cole is the Project Manager of LAWYERS. Interview granted on 5 August 2015. 27 UN in Sierra Leone (n 6 above). Impact of the African Charter and the Maputo Protocol in selected African states 209
Protocol. The African regional system is National Institutions for the Promotion one of the components of the course. and Protection of Human Rights (ICC). This accreditation played a huge role in It is hoped that this course marks Sierra Leone’s election to the member- the beginning of a profound interest ship of the UN Human Right Council in within the legal profession for human 2012.29 rights treaties both regionally and inter- nationally. That inevitably would expe- Ms Jamesina King, a commissioner dite the incorporation of the African of the HRCSL who was appointed in Charter and the Maputo Protocol June 2015 as a commissioner of the amongst other treaties awaiting domesti- ACHPR, noted that the African Charter cation. and the Maputo Protocol are part of the key tools being used in the discharge of There is a noticeable dearth of the Commission’s mandate.30 She academic resources in Sierra Leone and maintained that the Commission this unattractive reality extends to employs these instruments both in its academic materials in relation to human quasi-judicial functions and in their rights. Before now, very few human public education and trainings, which rights activists and organisations are offered to diverse entities and groups referred to the African Charter in their across the country. She noted further brochures and handbooks on human that the HRCSL does make reference to rights. This situation is fast changing certain provisions of the African Charter since most organisations now utilise the and the Maputo Protocol in its annual African Charter and more new women’s reports on the state of human rights in organisations are using the Maputo the country. Ms King maintained that Protocol in their advocacy drives. While the Commission collaborated with academic material referencing the Afri- many other human rights organisations can Charter may still be limited, these in advocating for the ratification of the instruments do come in handy in civil Maputo Protocol. society advocacy activities. ‘[A] [f]ew years ago, the relationship 8 National human rights between the African Commission and institutions the HRCSL was tenuous’, she said. But that has changed since they were trained There is a human right commission, and by a representative of the African an office of the ombudsman in Sierra Commission on how to compile a state report. Ms King’s recent appointment to Leone. The Human Right Commission 31 of Sierra Leone (HRCSL) was estab- the African Commission as a member lished in 200428 in accordance with the will hopefully also strengthen the ties Paris Principles. The Commission is charged with the mandate of promoting 29 United Nations Human Rights Council ‘Current Membership of the Human Rights and protecting human rights across the Council, 1 January-31 December 2016’ http: country. The Commission was accredit- //www.ohchr.org/EN/HRBodies/HRC/Pa ges/CurrentMembers.aspx (accessed 20 Sep- ed ‘A Status’ in 2011 by the UN Interna- tember 2015). tional Coordinating Committee of 30 Interview granted on 4 August 2015. Report available at http://www.achpr.org/sessions/ 57th/ (accessed 16 November 2015). 31 African Union ‘25th Assembly of the African 28 Established pursuant to the Human Right Union commits to mainstreaming women as Commission of Sierra Leone Act 9 of 2004. the Continent begins to implement Agenda 210 Sierra Leone between HRCSL and the African General of Sierra Leone who was Commission. accompanied by the Sierra Leone Ambassador to The Gambia, the head The Office of the Ombudsman is of the Justice Sector Coordination very much overshadowed in recent programme, a state counsel and a few times by the prominence stemming from others.35 the activities of the HRCSL. The aware- ness and usage of the African Charter The report is a 28 page document and Maputo Protocol by the Office of detailing the human-rights situation, Ombudsman in Sierra Leone is not legal frameworks and general practice in noticeable to say the least. Currently, regard to both civil and political rights the Ombudsman heads the Constitu- and socio-economic rights in Sierra tional Review Committee. Therefore, it Leone. The Report seems to group both is hoped that by the time that assign- categories of rights as if both are justicia- ment expires, his knowledge and usage ble in Sierra Leone. It does not disclose of these instruments would have what steps the state of Sierra Leone is increased, courtesy of the numerous taking to ensure that socio-economic citations and references by human right rights are enforceable in Sierra Leone. advocates. Whilst the report attracted several ques- tions from the commissioners regarding 9 State reporting the human rights situation in Sierra Leone, the country was applauded for Sierra Leone submitted its first state establishing the Independent Police 36 report under the African Charter in Complaints Commission. A shadow 2014.32 Ms King noted that the Human report is said to have been presented by 37 Right Commission of Sierra Leone one local NGO. worked in collaboration with the Attor- It is hoped that Sierra Leone, going ney General’s Office in putting together forward, will be compliant with her the said report. Sierra Leone could not state reporting obligations under the send a delegation to present the report African Charter and also under the because of the outbreak of the EVD Maputo Protocol. until November 2015.33 The state report was developed by the Attorney-Gener- al’s Office in collaboration with the 10 Communications and HRCSL and in consultation with civil promotional visits society groups in the country.34 The report was presented by the Attorney To date, only one communication has been submitted against Sierra Leone to the African Commission for, inter alia, 31 2063’ http://summits.au.int/en/25thsumm 38 it/events/25th-assembly-african-union-com contravention of the right to life. The mits-mainstreaming-women (accessed government of Sierra Leone executed 24 10 November 2015). 32 See African Commission on Human and soldiers after being tried and sentenced Peoples’ Rights ‘Sierra Leone: Initial and Combined Reports, 1983-2013’ http://www. achpr.org/states/sierra-leone/reports/1st-19 83-2013/ (accessed 16 November 2015). 35 As above. 33 At the 57th ordinary session 4-18 November 36 As above. 2015. 37 n 24 above. 34 Khadija Z Bangura, state counsel, Attorney 38 223/98 Forum of Conscience v Sierra Leone General’s office. Interview granted on 16 http://caselaw.ihrda.org/doc/223.98/ November 2015. (accessed 16 November 2015). Impact of the African Charter and the Maputo Protocol in selected African states 211 to death by a Court Martial for their 11 Factors that may impede or alleged roles in a coup that unseated a enhance the impact of the democratically elected government African Charter, the Maputo headed by President Ahmed Tejan Protocol and the African Kabah. The communication alleged Commission procedural improprieties in the trial and the execution before appeal, a violation A few years ago, the African Charter of the African Charter. The African and the Maputo Protocol were largely Commission, which was only seized of unknown both in terms of awareness of the matter after Sierra Leone had their existence and impact in human executed the twenty-four soldiers, decid- rights related issues. This cannot hold ed that the execution was in breach of true any more for these two instruments. the right to life under the African Char- Firstly, the Maputo Protocol has been ter. ratified by Sierra Leone’s Parliament Sierra Leone still has death penalty and this would not have happened but provisions although a moratorium has for the nationwide advocacy efforts of been in place for a long time and prison- many women’s groups. Therefore, ers on death row are occasionally grant- recognition of these instruments has ed presidential clemency.39 heightened in recent times. Also, many human rights organisations are now The African Commission has not beginning to use some of the provisions undertaken any promotional or fact- of these instruments in bringing pressure finding missions to Sierra Leone. A to bear on the government in human promotional visit was scheduled some- rights related issues. The appointment of time in 2014 but was cancelled due to Ms King to the African Commission has the outbreak of the EVD, according to also substantially brought the African Ms King.40 Charter and the Maputo Protocol to the media spotlight. This is no doubt an In 2010, the Special Rapporteur on opportunity for the HRCSL to build a Prison and Places of Detention in Africa stronger connection with the African was invited to a workshop in Sierra Commission. Sierra Leone’s presenta- Leone. This invitation afforded the tion of its state report to the African Special Rapporteur the opportunity to Commission was witnessed by only a engage with the stakeholders in the pris- few of its local NGOs and did not on sector of Sierra Leone.41 attract media attention in Sierra Leone.
While awareness levels of the exist- 39 Sierra Leone State Report (n 32 above) 9. ence of the African Charter and the 40 Jamesina King, Commissioner, Human Right Commission SL, interview granted on Maputo Protocol have certainly soared, 5 August 2015 in Freetown. the same cannot be said of the overall 41 African Commission on Human and Peoples’ Rights ‘Report of the Special impact of these instruments. This is Rapporteur on prisons and conditions of partly due to the absence of political will detention in africa’ Presented by Hon Commissioner Med SK Kaggwa at the in upholding, promoting, fulfilling and 52nd Ordinary Session of the African respecting the human right of all persons Commission on Human and Peoples’ Rights Yamoussoukro, Côte d’Ivoire, in Sierra Leone. 9 - 22 October 2012 http://www.achpr.org/ ses sions/52nd/intersession-activity-reports/ prisons-and-conditions-of-detention/ (accessed 16 November 2015). 212 Sierra Leone
Secondly, the non-domestication of while there is increasing recognition, the African Charter and the Maputo education is pretty low on the extent of Protocol has considerably crippled the these rights and the reciprocal govern- impact these instruments would have ment obligations to promote, respect had in enriching the inadequate consti- and fulfil them. The shallow knowledge tutional rights in Sierra Leone. Domesti- of these instruments has affected their cation is the first step in impact which is limited depending on implementation, which consequently the threshold of knowledge. Many civil would engender the impact of these society activists still regard international instruments in all spheres of the Sierra human rights instruments as nonbinding Leonean society. obligations and therefore only useful to persuade government to honour its Thirdly, within legal circles, the human rights obligations. Such attitudes African Charter and the Maputo Proto- pose difficulties in impactful implemen- col are not as popular as they are within tation of the African Charter and the the civil society sector. Lawyers and Maputo Protocol. benchers have either been too conserva- tive or not very au fait on how to employ Thirty years after the adoption of the provisions of these regional human the African Charter and over twelve right instruments. This in part may be years after the adoption of the Maputo due to the unincorporated status of these Protocol, harmful cultural practices instruments. However, the judicial continue to torment and oppress reluctance to utilise these instruments in women. Customary laws, which are court and judgments has largely affected mostly unpleasant to women in Sierra the growth and impact of these regional Leone, are still constitutionally recog- human rights instruments in Sierra nised as part of the laws of Sierra Leone. Active litigious usage of the Afri- Leone.42 This means therefore that can Charter and the Maputo Protocol customary practices recognised by law could broaden the recognition and stim- may continue to hamper the impact of ulate substantial protection and fulfil- both the African Charter and the Mapu- ment of human and peoples’ rights. to Protocol especially in the lives of Also, judicial activism by means of women and children. using the provisions of the African Charter and the Maputo Protocol could In the case of the Maputo Protocol, enhance the impact of these instru- the limitations outlined in the Agenda 43 ments. In order to promote and protect for Prosperity are exact and extensive. human rights in Sierra Leone, lawyers There is a dearth of resources to fully and academics must move beyond tradi- implement the policies, plans and legis- tional legal and academic contours by lation relating to the Maputo Protocol. engaging the said regional instruments The Ministry of Social Welfare, Gender in lawsuits and judicial discourse even and Children’s Affairs continues to face when they remain undomesticated. institutional and technical constraints due to insufficiency of staff. Domestica- Fourthly, even though civil society tion of international and regional groups and media entities often refer to the African Charter and the Maputo Protocol, they arguably still do not fully 42 Sec 170 of the Constitution. comprehend their provisions. In effect, 43 Agenda for Prosperity (n 17 above) 142 & 143. Impact of the African Charter and the Maputo Protocol in selected African states 213 women’s rights instruments remains undone.44
While progress made in terms of the awareness levels of both the African Charter and Maputo Protocol and the ratification of the latter instrument must not be overlooked, there is certainly much yet to be achieved. Since both instruments have been ratified by Sierra Leone, it behoves Sierra Leone to start implementing them by first taking steps to incorporate them into the laws of Sierra Leone so that they can become enforceable domestically. Incorporation of these instruments would no doubt foster progress in the political, economic and social spheres of Sierra Leone. Human rights are not meant to deterio- rate society but to improve the liveli- hoods of all persons irrespective of status, age, sex and religious and politi- cal convictions.
44 As above. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN SOUTH AFRICA
Ofentse Motlhasedi* Linette du Toit**
1 Introduction changed its attitude toward internation- al law.4 While the country viewed inter- In 1994, South Africa made a remarka- national law as a threat to the state ble transition from an oppressive regime during apartheid; it made deliberate characterised by racial segregation, efforts to align itself with international inequality and authoritarianism to standards by signing multiple human constitutional democracy. The 1996 rights treaties shortly after the Interim 5 Constitution has a transformative Constitution came into force. purpose and seeks to create a free, equal and democratic South Africa.1 As the The 1996 Constitution’s transforma- tive vision includes the creation of a point of reference for the fostering of a 6 culture of human rights, the Constitu- society where all are equal. While the tion includes an enforceable and exten- main focus of this transformative project sive Bill of Rights2 and recognises ‘the has been on equality of races, special attention has also been paid to the status advancement of human rights and free- 7 doms’ as a founding value of the Repub- and position of women in the country. lic.3 On 9 August 2015, which is Women’s Day in South Africa, the recurring senti- As part of this democratic tran- ment was expressed that the country has sition, South Africa has drastically made significant progress as far as
4 J Dugard ‘Kaleidoscope: International law and the South African Constitution’ (1997) 1 European Journal of International Law 77. 5 Dugard (n 4 above) 82. South Africa signed * LLM HRDA (Pretoria). the Convention on the Rights of the Child ** LLM HRDA (Pretoria). and the Convention on the Elimination of 1 K Klare ‘Legal culture and transformative All forms of Discrimination against Women constitutionalism’ (1998) 14 South African in 1993 and the International Covenant on Journal on Human Rights 146 150. Civil and Political Rights and the 2 See Chap 2 of the Constitution of the International Covenant on Economic, Social Republic of South Africa, 1996 (the and Cultural Rights in 1994. Constitution). South Africa’s Constitution 6 Sec 1(a) of the Constitution. has often been praised for its progressive 7 The Constitution has an extensive equality nature. It is the first Constitution in Africa to provision (sec 9) and also mandated the include enforceable socio-economic rights. creation of a Commission for Gender 3 See sec 1(a) of the Constitution. Equality (sec 187).
215 216 South Africa women’s rights are concerned, but that of the death penalty on pregnant and much more needs to be done.8 nursing women. South Africa’s position was that the section does not find appli- It is within this context that we will cation in South Africa because the death consider the impact of the African Char- penalty has been abolished and the ter and Maputo Protocol in South Afri- existence of article 4(2)(j) may be ca. construed as an inadvertent sanctioning of the death penalty in other state 2 Ratification of the African parties.12 The second reservation, to Charter and Maputo Protocol article 6(d), was entered into on the basis that in accordance with national South Africa ratified the African Char- laws, the recording of a marriage in ter on 9 July 1996 and the Maputo writing is not necessary for it to be legal- Protocol on 17 December 2004.9 ly recognised; particularly in light of the fact that the failure to register a custom- During the Maputo Summit, South ary marriage does not render that Africa and other nations expressed marriage invalid.13 The final reservation reservations to the Protocol.10 At the made, in relation to article 6(h), is time of ratification, South Africa made founded on the basis that this article three reservations and two interpretative may remove inherent rights of citizen- declarations to the Maputo Protocol.11 ship and nationality from children The first reservation was made to article which South Africa seeks to protect.14 4(2)(j) which deals with the imposition Interpretive declarations were also entered by South Africa. The first of 8South African government website ‘President Jacob Zuma: Celebration of these was to article 1(f) where South National Women’s Day’ 9 August 2015 Africa states that the definition of http://www.gov.za/speeches/president-jaco b-zuma-celebration-national-women%E2%8 ‘discrimination against women’ in the 0%99s-day-9-aug-2015-0000 (accessed 1 Sep- Maputo Protocol has the same meaning tember 2015). Positive strides include the fact and scope as provided for by the Consti- that in 2014, 59% of university graduates and 15 43% of the cabinet were women. Yet, women tution of the Republic of South Africa. are far from equal to men on many bases and those living in rural areas remain particularly The second interpretive declaration vulnerable to the violation of their rights. made, in respect of article 31, provides Gender-based violence remains grossly widespread and underreported. Women still that the South African Bill of Rights make out a disproportionate section of the should not be interpreted to offer less unemployed and remain more likely to be employed in low-skilled occupations. favourable protection of human rights Dominant social norms place unpaid work than the Maputo Protocol, since the such as childcare and home-making in the domain of ‘a woman’s responsibility’ which Maputo Protocol does not expressly means that women have less time and opportunity to participate in the labour market. Department of Women ‘The status of women in the South African economy’ (2015) 9 http://www.gov.za/sites/www.gov. za/files/Status_of_women_in_SA_economy .pdf (accessed 1 September 2015). 9 http://www.africa-union.org/root/au/Doc 11 the Rights of Women in South Africa: South uments/Treaties/List/Protocol%20on%20 Africa’s reservations and interpretative the%20Rights%20of%20Women.pdf declarations’ (2008) 41 Law Democracy and (accessed 21 August 2015). Development 52. 10 See http://www.chr.up.ac.za/hr_docs/them 12 Mujuzi (n 11 above) 52-53. es/theme39.html (accessed 21 August 2015). 13 Mujuzi (n 11 above) 53-56. 11 JD Mujuzi ‘The Protocol to the African 14 Mujuzi (n 11 above) 56. Charter on Human and People’s Rights on 15 Mujuzi (n 11 above) 56-58. Impact of the African Charter and the Maputo Protocol in selected African states 217 provide for limitations in the way the treaties. A signature of a treaty does not Bill of Rights does.16 by itself establish South Africa’s consent to be bound by the treaty;21 a resolution In respect of the African Charter, of ratification must be passed by the South Africa entered a declaration call- National Assembly and the National ing for improved consultation on Council of Provinces. enforcement mechanisms, limitations to the rights in the African Charter and The ordinary procedures for congruency between the African Char- concluding international agreements ter and the United Nations resolutions have been provided in the Guideline for characterising Zionism. This is generally Conclusion of Agreements and involve not considered to qualify as a reserva- the following: tion.17 (a) obtaining opinions on the agreement’s Prior to the enactment of the final consistency with both domestic law Constitution in 1996, the executive exer- and international law from the Office 18 of the Chief State Law Advisers cised exclusive treaty making power. (OCSLA) in the Department of Justice With the advent of democracy and the and Constitutional Development and abolishment of parliamentary sovereign- the State Law Advisers in the Depart- ty in favour of constitutional supremacy, ment of International Relations and the process of signing, ratification and Cooperation respectively; accession to international treaties was (b) preparation of a President’s Minute by significantly altered.19 the responsible government depart- ment for signature by both the respon- sible line function Cabinet Minister Section 231 of the 1996 Constitution and the President; and and the Department of International (c) forwarding of the two legal opinions, Relations’, ‘Practical Guide and Proce- President’s Minute, a short Explana- dure for the Conclusion of International tory Memorandum and a copy of the Agreements’ (Guideline for Conclusion agreement to the Office of the Chief 22 of Agreements)20 provides that treaty- State Law Adviser for certification making power in South Africa is shared before it can be presented to the Presi- dency for approval.23 between the executive and the legisla- ture. The executive plays the initial role Section 231 of the Constitution estab- by negotiating and signing international lishes a framework for two avenues in which a treaty may be ratified. The procedure to be adopted is dependent on 16 Mujuzi (n 11 above) 58. 17 African Commission on Human and whether the agreement falls within the Peoples’ Rights ‘African Charter on Human ambit of section 231(2) or section and Peoples’ Rights’ http://www.achpr.org/ instruments/achpr/ (accessed 21 August 231(3). Section 231(2) agreements 2015). 18 Dugard (n 4 above) 81. 19 AG Assefa ‘The impact of the African 21 Except in cases provided in section 231(3), Charter and Women’s Protocol in South for instance where the treaty states that it is Africa’ in Impact of the African Charter and intended to be binding upon signature. Women’s Protocol in selected African States 22 The instrument is considered to be certified (2012) 161. when the OCSLA affix the official stamp on 20 Department of International Relations and the final text indicating that the agreement is Cooperation, Office of the Chief State Law acceptable to be submitted for the President’s Adviser (International Law) ‘Practical Guide approval http://www.dfa.gov.za/foreign/ and Procedures for the Conclusion of bilateral/conclusion_agreement1014.pdf Agreements’ http://www.dfa.gov.za/foreign (accessed 21 August 2015). /bilateral/conclusion_agreement0316.pdf 23 Guideline for Conclusion of Agreements (n (accessed 15 September 2015). 20 above) 21. 218 South Africa require that parliamentary approval be 3 Government focal point sought along with the ordinary proce- dures for concluding international agree- The focal point of South Africa’s ments as described above. Section response and responsibilities on the 231(3) agreements, on the other hand, African Charter is the International are adopted by the ordinary procedure Legal Relations Chief Directorate with- and must be tabled in Parliament for in the Department of Justice and Consti- 24 information purposes only. tutional Development. The focal point in respect of the Maputo Protocol is the In the case of section 231(2) agree- Ministry of Women which is located ments, parties shall notify each other in within the office of the Presidency. writing when their respective constitu- tional requirements necessitating entry The Chief Directorate: International into force for a treaty are fulfilled where- Legal Relations deals with bilateral and as section 231(3) applies to international multilateral issues and interacts with agreements that merely require the international bodies, such as the African signature of a duly authorised represent- Union. The Directorate also liaises with ative of a state party to come into effect. the Department of International Rela- Agreements that fall under section tions and Cooperation and other govern- 231(2) are those that require ratification ment departments (as well as South or accession (usually multilateral agree- African Foreign Missions on internation- ments), and have financial implications al legal matters). The North and Multi- that require an additional budgetary lateral Directorate also deals with the allocation from Parliament or have handling of human rights and humani- legislative or domestic implications tarian law matters at bilateral and multi- (such as treaties that require new legisla- lateral (international) levels, including 25 tion or legislative amendment). the negotiation of human rights treaties, However, a treaty which falls under the declarations and resolutions, as well as scope of section 231(3) is one that does writing country reports on these instru- not require parliamentary approval for ments. Most treaties have stipulated ratification or accession; that has no within them a requirement that states extra-budgetary financial implications parties submit regular reports to a treaty or one which does not have legislative monitoring body on the legislative, judi- implications. cial, administrative, policy or other measures which they have adopted, and Both the African Charter and the which give effect to the provisions of the Maputo Protocol fall under section treaty. One of treaties which fall under 231(2). this mandate is the African Charter.26
The Ministry of Women describes its mandate as championing the advance- ment of women’s socio-economic empowerment and the promotion of 24 Guideline for Conclusion of Agreements (n gender equality. It aims to drive imple- 20 above) 8. 25 Guideline for Conclusion of Agreements (n 20 above) 8-9. Approval for accession is 26 The Department of Justice & Constitutional required when South Africa has not signed Development ‘International Legal Relations’ an agreement but can become a party thereto http://www.justice.gov.za/ilr/ilr.html through accession. (accessed 26 August 2015). Impact of the African Charter and the Maputo Protocol in selected African states 219 mentation through developing appropri- 4 Domestication ate standards for implementation of both national and International law. It The African Charter and Maputo Proto- describes the Maputo Protocol as one of col, as international agreements, have a South Africa’s several regional and status lower than that of the Constitu- international commitments on women’s tion and domestic legislation in South empowerment and gender equality and Africa. The Constitution, which is the describes it as falling under its ‘other supreme law of the Republic,29 provides mandate’. The Ministry endeavours to that international agreements only work towards the full and effective become enforceable in South Africa implementation of the Protocol at the once they have been enacted into law by 27 national level. national legislation.30 A self-executing provision of a ratified treaty becomes Although the responsibility for law in South Africa unless it is inconsist- women’s empowerment and gender ent with the Constitution or an Act of equality is vested with the Minister of Parliament. Women in the Presidency, gender main- streaming is being implemented as a Many of the African Charter rights strategy for realising gender equality are contained in the Bill of Rights, across government and in all members including the right to equality and non- of Cabinet, government entities, the discrimination, to dignity, life, freedom private sector and civil society. National and security of person, religion, freedom Gender Machinery (NGM) refers to ‘an of expression, association and assembly integrated package’ of structures located and to participate in government.31 at various levels of state, civil society There are also corresponding provisions and within the statutory bodies. Within on rights to property, a fair trial and a government, this is evidenced through healthy environment.32 Significantly, Cabinet, the National Office on the the South African Bill of Rights also Status of Women (OSW) in the Presi- includes justiciable socio-economic dency, Provincial OSWs in Premiers’ rights such as the right to health and Offices, Gender Units and Gender education.33 Focal Points (GFP) in line departments (at best in the Offices of the Directors- In a previous edition of this chapter, General).28 Assefa has argued that even though the Bill of Rights does not protect ‘the right to equality of peoples’ as the African Charter does, it does provide for the establishment of a Commission for the Promotion and Protection of Cultural, 27 Republic of South Africa ‘Department of Women Strategic Plan 2015-2020’ 8. 28 South Africa’s National Policy Framework for Women’s Empowerment and Gender Equality; Republic of South Africa ‘Beijing 29 Sec 2. +20 Report: Progress made on the 30 Sec 231(4). Implementation of the Beijing Declaration 31 See sec 9-19 of the Constitution, which form and Platform for Action and the Outcomes part of the Bill of Rights. of the 23rd Special Session of the General 32 See secs 24, 25 and 35 of the Constitution. Assembly in 2000’ 57 http://www.women. 33 Secs 26 & 27. On the enforcement of socio- gov.za/attachments/article/52/Final%20D economic rights in South Africa, see raft%20(2)%20National%20Beijing%20+20 C Mbazira Litigating socio-economic rights in %20Report%20%2026022015%20(3).pdf South Africa: A choice between corrective and (accessed 15 September 2015). restorative justice (2009). 220 South Africa
Religious and Linguistic Communi- Constitution provides for the creation of ties.34 a Commission for Gender Equality.39
Similarly, many Maputo Protocol Though 17 Constitution Amend- rights are entrenched in the South Afri- ment Acts have been adopted since the can Constitution, though not specifical- 1996 Constitution came into force, none ly in respect of women, but applying to have altered the provisions of the Bill of anyone present in the Republic. These Rights. Thus it can be argued that the rights include the right to dignity, life, African Charter and Maputo Protocol integrity and security of person, access have not inspired constitutional amend- to justice and equal protection before ment. the law, education, housing, social secu- rity and political participation. The The African Charter has not yet Constitution explicitly guarantees the been enacted into law by national legis- right to reproductive health care35 in line lation in terms of section 231(4) of the 40 with article 14 of the Maputo Protocol. Constitution. The process of domesti- There are also areas where the Constitu- cating the Maputo Protocol is also still tion can be seen to advance the aims of underway. On 29 January 2014, the the Maputo Protocol. The principle of Centre for Applied Legal Studies non-discrimination underlies the Mapu- (CALS) and the Centre for the Study of to Protocol; similarly non-sexism and Violence and Reconciliation (CSVR) the achievement of equality are founda- made joint submissions to the Portfolio tional values of the South African Committee on Women, Children and Constitution.36 Where article 2 requires People with Disabilities on the Women that the principle of equality between Empowerment and Gender Equality men and women is included in national Bill of 2013. The organisations urged constitutions and legislative instruments that compliance with the Maputo Proto- of member states, the equality clause in col ought to be added to the objectives the South African Constitution explicit- of the Bill and that this would contribute 41 ly prohibits discrimination on the basis to its domestication process. The Bill of sex, gender and sexual orientation, has, however, since been withdrawn for amongst other grounds.37 The equality further consultation. clause also provides that legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken to promote 38 the achievement of equality. The 1996 38 the workplace, where women have historically suffered discrimination and in fact continue to suffer discrimination. 39 Sec 187. 40 DE v RH [2015] ZACC 18 para 46. 34 Assefa (n 19 above) 163. 41 Oral submission to the Portfolio Committee 35 Sec 27(1)(a). on Women, Children and People with 36 Sec 1. Disabilities on the Women Empowerment & 37 Sec 9(3). Gender Equality Bill, 29 January 2014 by the 38 Subsequently, women have been identified as Center for Applied Studies (CALS) and the a ‘designated group’ in terms of the Centre for the Study of Violence and Employment Equity Act 55 of 1998 which Reconciliation (CSVR), delivered by means that they are entitled to advancement Executive Director CSVR: Delphine in the employment arena for the purposes of Serumaga http://pmg-assets.s3-website-eu- achieving equality. Corrective and positive west-1.amazonaws.com/140129cals.pdf measures are thus undertaken in the area of (accessed 13 September 2015). Impact of the African Charter and the Maputo Protocol in selected African states 221
5 Legislative reform according to the Department of Justice and Constitutional Development, a The Portfolio Committee on Justice and number of legislative initiatives have Constitutional Development, having been undertaken by departments with a considered the request for approval by view to enhance the application of the 45 Parliament of the Maputo Protocol, African Charter. Examples of legisla- held deliberations in October 2004. The tion which have been enacted or amend- Portfolio Committee compiled a brief ed with the implicit purpose of giving report which notes reservations, areas of effect to the Maputo Protocol include: concern and points of clarification.42 It the Choice on Termination of Pregnan- can be inferred from these deliberations cy Amendment Act 8 of 2004; the Sexu- and the publicised report that a compati- al Offences and Related Matters bility study was undertaken prior to rati- Amendment Act 32 of 2007; the Civil fication.43 Union Act 17 of 2006; and the Reform of Customary Law of Succession and Generally, after 1994, the South Regulation of Related Matters 11 of African legal system experienced drastic 2009. changes as a result of the promulgation of the Constitution and commitment to Secondly, the Protocol is referenced South Africa’s international law obliga- in discussion documents around the tions. A considerable number of laws development of national legislation. have been enacted and amended in line According to the Report of the Portfolio with international and regional instru- Committee on Women, Children and ments, including the African Charter People with Disabilities, public hearings and the Maputo Protocol. South Africa on the Women Empowerment and is required to regularly review its legisla- Gender Equality Bill took place during tion in order to ensure that it is in line March 2014. During these discussions, with the norms reflected in these instru- civil society organisations requested that ments. the Maputo Protocol be included in the Bill’s objectives, which the Department The implicit influence of the African had undertaken to do although this Bill Charter and the Maputo Protocol can be has since been withdrawn.46 During traced in three different ways.44 Firstly, public hearings on the Traditional Courts Bill in September 2012, equality 42 Report of the Portfolio Committee on Justice provisions of the Maputo Protocol were and Constitutional Development on the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women 45 The enactment of the Promotion of Equality in Africa (27 October 2004) http://pmg- and Prevention of Unfair Discrimination Act assets.s3-website-eu-west-1.amazonaws.com 4 of 2000 is an example of this. /docs/2004/appendices/041027report.htm 46 Parliamentary Monitoring Group (accessed 31 August 2015). ‘ATC140324: Report of the Portfolio 43 Parliamentary Monitoring Group – Justice Committee on Women, Children and People and Correctional Services ‘Protocol to with Disabilities Public Hearings on the African Charter on Human and People’s Women Empowerment and Gender Equality Rights on Rights of Women in Africa: Bill [50-2013], dated 5 March 2014’ https:// Deliberation’ https://pmg.org.za/committee pmg.org.za/tabled-committee-report/2202/ -meeting/10181/ (accessed 31 August 2015). (accessed 31 August 2015). The Centre for During earlier deliberations the Portfolio Applied Legal Studies (CALS) and the Committee considered the Maputo Protocol Centre for the Study of Violence and in the light of legal advice from the State Law Reconciliation (CSVR) made joint Adviser on certain provisions that appeared submissions in which it stated that the contradictory or unnecessary in respect of Maputo Protocol specifically addresses South African domestic law. patriarchal, traditional, cultural and 44 Assefa (n 19 above) 165. institutional practices that hinder women’s 222 South Africa raised in opposition to certain of the Protocol, tend to lack direct references Bill’s provisions.47 to these instruments.49
Finally, as Assefa has argued, There are a few instances, however, certain legislative changes were inspired where these instruments have been used by South African court decisions in in a direct way to formulate policy. The which the African Charter has been Department of Correctional Services, in referred to.48 preparing its Draft White Paper on Remand Detention Management in 6 Policy reform and formulation South Africa seemingly took into account its obligations under the Afri- 50 The African Charter and the Maputo can Charter. The Draft White Paper Protocol have been used scantily in poli- states that the African Charter is part of cy reform and formulation by the South the broader legal framework governing African executive branch of govern- the management and remand of detain- ment. National policies on gender, ees in the country. It makes specific poverty reduction and education, while reference to articles 4, 5, 6 and 7 of the expressing the purport of the provisions African Charter which enshrine the of the African Charter and the Maputo rights to integrity and dignity of the person, freedom from torture, inhuman and degrading treatment, the prohibi- tion of arbitrary arrest and detention as well as the presumption of innocence 46 empowerment and that ‘facilitation of 51 compliance with the Maputo Protocol’ and fair trial rights. It also indicates should be added as an objective of the Act: that international law includes guide- Oral submission to the Portfolio Committee on Women, Children and People with lines or standards that are not necessari- Disabilities on the Women Empowerment & ly promulgated into law but have Gender Equality Bill [B50-2013] 29 January 2014 by the Centre for Applied Legal Studies normative significance in providing (CALS) and The Centre for the Study of direction to stakeholders on how to deal Violence and Reconciliation (CSVR) 52 delivered by Executive Director CSVR; with remand detainees. Delphine Serumaga http://pmg-assets.s3- website-eu-west-1.amazonaws.com/140129 cals.pdf (accessed 13 September 2015). 47 Report of the Select Committee on Security and Constitutional Development on the Traditional Courts Bill (2012) https:// 49 Some of these policies, of which the content pmg.org.za/tabled-committee-report/286/ overlap with that of the African Charter and (accessed 31 August 2015). Maputo Protocol to an extent but where 48 The specific examples that Assefa notes (n 19 there is no direct reference to these above) are that of the adoption of the instruments, include the National Abolition of Corporal Punishment Act 33 of Developmental Plan 2030 – Our Future, 1997, which is partly influenced by the Make it Work 2012; South Africa National decision of the Constitutional Court in S v Policy Framework on Women’s Williams 1995 (3) SA 632 (CC). In this case, Empowerment and Gender Equality 2000; the Court declared sec 294 of the Criminal and the National Education Policy Act 27 of Procedure Act 51 of 1977 constitutionally 1996. invalid and relied on a number of 50 Department of Correctional Services ‘Draft international instruments to this end, White Paper on Remand Detention including art 5 of the African Charter. The Management in South Africa’ 2013 http:// invalidation of sec 25(9)(b) of the Aliens www.dcs.gov.za/docs/landing/White%20pa Control Act 96 of 1991 lead to the adoption per%20on%20Remand%20Detention%20in of the new Immigration Act 13 of 2002. This %20SA%20Draft%20Final.pdf (accessed has been inspired by the decision of the 13 September 2015). Court in Dawood and Another v Minister of 51 Department of Correctional Services (n 50 Home Affairs and Others 2000 (3) SA 936(CC), above) 30-31. where O’Regan J uses art 18 of the African 52 Department of Correctional Services (n 50 Charter. above) 30. Impact of the African Charter and the Maputo Protocol in selected African states 223
The Department of Women, Chil- Charter and jurisprudence from the dren and Persons with Disabilities has African Commission to support its find- recently recognised regional instru- ing that South Africa is obliged to inves- ments, which includes the African Char- tigate torture allegations in a ter, as part of the ‘enabling neighbouring state. The Court referred environment’ which is necessary for the to a myriad of international instruments, government to develop policy and but also noted that article 5 of the Afri- framework.53 The African Charter is can Charter prohibits torture and that also referred to as a relevant document torture has been interpreted by the Afri- in the Policy and Strategic Framework can Commission in the matter of Huri- on HIV and AIDS for Higher Education laws v Nigeria57 to include the widest in South Africa. This is a policy docu- possible array of mental and physical ment stemming from the 2012-2016 abuse.58 National Strategic Plan for HIV, STI’s and TB.54 The African Charter has been utilised by the courts on the rare occa- The researchers were not able to sion that rights which are not explicitly obtain any relevant information protected by the Constitution are at concerning whether or not government stake. Unlike the constitutions of most policies reflect the general comments of democratic states, the South African the African Commission. Constitution does not protect the rights of individuals to freely marry and to 59 7 Court judgments raise a family. Consequently, the South African courts have placed much The African Charter and Maputo Proto- reliance on the provisions of the African col, if mentioned in South African judg- Charter dealing with rights and duties in 60 ments at all, are mostly only referred to respect of the family. The Consti- in a cursory manner.55 This trend of tutional Court in particular has made merely referring to an article of the Afri- use of article 18 of the African Charter can Charter, as one of the many instru- in Dawood and Another v Minister of Home 61 ments protecting a particular right in the Affairs and Others, Volks NO v Robinson 62 domestic, regional and international and Others and most recently, in DE v 63 framework, has continued as can be RH. All these matters touched upon seen in the recent case of National Commissioner of the South African Police 57 (2000) AHRLR 273 (ACHPR 2000). Service v Southern African Litigation Centre 58 Huri-laws para 39. and Others.56 In this matter, the Consti- 59 The absence of a provision protecting the family as the basic unit of society was tutional Court relied on the African challenged in the First Certification case. (Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) para 53 National Treasury ‘Mainstreaming in 96.) The Constitutional Court held that the programmes and projects – Setting the policy absence of a right to family life is justified in landscape’ (2012). the multi-cultural South African context and 54 Department of Higher Education and that other provisions on the Constitution do Training Policy Strategic Framework on HIV provide indirect protection to the family unit and AIDS for Higher Education (2012). (paras 97-103). 55 S v Williams 1995 (3) SA 632 (CC); Bhe and 60 These provisions are arts 18, 27(1) and 29(1). Others v Khayelitsha Magistrate and Others 2005 61 Consolidated with Dawood v Minister of Home (1) SA 580 (CC); Samuel Kaunda and Others v Affairs; Shalabi v Minister of Home Affairs; President of the Republic of South Africa and Thomas v Minister of Home Affairs 2000 (3) SA Others 2005 (4) SA 235 (CC); Hassam v Jacobs 936 (CC)para 29. NO and Others 2009 (5) SA 572 (CC); 62 2005 (5) BCLR 446 (CC) para 82. 56 2015 (1) SA 315 (CC). 63 [2015] ZACC 18 paras 45-46. 224 South Africa the right to marriage and family life.64 8 Awareness and use by civil The African Charter’s explicit provi- society sions for the protection of the family thus served to fill the gap left by the South Africa boasts a vibrant civil socie- Constitution. ty. From interviews conducted with members of different organisations, it is South Africa has taken an innova- clear that though most organisations are tive step by including justiciable socio- aware of both the African Charter and economic rights in its Bill of Rights.65 In the Maputo Protocol, they play only a giving content to these rights, reference marginal role in the activities of the to and reliance on the regional frame- CSOs with a domestic focus. For work has been markedly absent from the human rights organisations that are Constitutional Court’s jurisprudence. In 66 based in South Africa but which have a the seminal Grootboom case, the consti- regional focus, the instruments have tutional right to housing was considered much greater significance.71 in terms of international law, but region- al instruments and jurisprudence were Michael Power, an attorney at the not taken into account. The same goes Legal Resources Centre (LRC),72 states for Minister of Health and Others v Treat- that in his view, civil society is well- 67 ment Action Campaign and Others, Khosa aware of these instruments, but the 68 v Minister of Social Development and extent to which they are used would 69 Mazibuko v City of Johannesburg. depend on the specific focus area of the particular organisation. He states that The Constitution of South Africa the LRC rely on the African Charter for compels courts to consider international the purposes of advocacy, litigation and law when interpreting the Bill of law reform. Thabang Pooe, researcher Rights.70 Regrettably, even where inter- at Section 27 says that due to the national law has been alluded to or used domestic focus of their organisation, it seems that the African Charter and they would rarely invoke regional Maputo Protocol have not truly been instruments beyond referencing them in used as interpretative sources or as the advocacy and litigation.73 Similar views basis of a remedy. were expressed by Irene de Vos, senior researcher and general counsel at the Socio-Economic Rights Institute of South Africa (SERI).74 She states that although CSOs are aware of the African 64 These matters were respectively about the Charter, the fact that local remedies are circumstances in which foreign spouses of South African residents are permitted to effective means that it is usually not reside temporarily in the country; necessary to rely on the regional frame- maintenance claims of life partners; and whether the delictual claim based on work. adultery should continue to exist in South African law. 65 C Heyns & D Brand ‘Introduction to socio- 71 Organisations based in South Africa with a economic rights in the South African regional focus include the Southern African Constitution’ (1998) 2 Law, Democracy and Litigation Centre (SALC); the University of Development 153. Pretoria’s Centre for Human Rights and 66 Government of the Republic of South Africa v Sonke Gender Justice Network. Grootboom 2001 (1) SA 46 (CC). 72 Email from Michael Power, 30 August 2015. 67 2002 (5) SA 721 (CC). 73 Email from Thabang Pooe, 13 September 68 2004 (6) SA 505 (CC). 2015. 69 2010 (4) SA 55 (CC). 74 Email from Irene de Vos, 23 September 70 Sec 39(1). 2015. Impact of the African Charter and the Maputo Protocol in selected African states 225
According to Keegan Lakay,75 the society organisations, along with two Community Education and Mobilisa- international organisations, applied to tion manager at Sonke Gender Justice intervene as non-disputing parties Network, the organisation engages in (NDPs) in this arbitration.78 The NDPs impact litigation, in partnership with relied on international instruments, other organisations in the region and provisions of the South African Consti- places much reliance on the Maputo tution as well as article 9(1) of the Afri- Protocol in this regard. He says that the can Charter in requesting the disclosure Protocol is useful to the organisation in of ‘discreet categories of documents’ to that it provides a guideline according to which they needed access in order to which government compliance with the take part in the arbitration in a meaning- realisation of the rights of women can ful way.79 be monitored. 10 Higher education and academic 9 Awareness and use by lawyers writing and judicial officers Information provided by the law facul- Out of the ten practising attorneys ties of four different South African surveyed, four were not aware of the universities indicate that, at most, the existence of these instruments. Lawyers African Charter and the Maputo Proto- in private practice mostly do not see the col are touched upon at an undergradu- relevance of these instruments to their ate level.80 Modules such as work.76 It seems that lawyers whose International Law or Human Rights practices are focused on human rights Law tend to make reference to these work would list provisions of the Afri- instruments as part of the regional can Charter and Maputo Protocol in human rights framework, but they are support of their arguments on a fairly not studied in-depth. regular basis. However, due to the expansive nature of the South African There are a large number of South Constitution, it would rarely happen African and South Africa-based scholars that lawyers would base their arguments whose main field of research is human 81 on the provisions of these instruments rights law in Africa. These scholars only or directly. are responsible for lively academic delib- eration on these instruments, their A notable reliance on the African Charter took place in 2009. A group of 78 The Legal Resources Centre (LRC) and the Centre for Applied Legal Studies (CALS), investors instituted a claim against two South African organisations, formed a South Africa in the International Centre coalition with the International Centre for for Settlement of Investment Disputes the Protection of Human Rights 77 (INTERIGHTS) and the Centre for (ICSID). Two South African civil International Environmental Law (CIEL). 79 J Brickhill & M Du Plessis ‘Two’s company, three’s a crowd: Public interest intervention in investor-state arbitration (Pietro Foresti v 75 Telephone communication with Keegan South Africa)’ (2011) 27 South African Journal Lakay, 4 September 2015. on Human Rights 152 159-160. 76 Three different lawyers at corporate law 80 The universities surveyed are: Nelson firms, who were aware of the existence of the Mandela Metropolitan University, North African Charter and Maputo Protocol, West University, the University of Pretoria referred to the pro bono departments of their and the University of the Witwatersrand. firms. 81 Three of these scholars are Professors 77 Pietro Foresti, Laura De Carli v Republic of South Christof Heyns, Magnus Killander and Frans Africa ICSID Case No: ARB (AF) 07/01. Viljoen. 226 South Africa implementation, potential and short- A positive move can be seen in that comings.82 South Africa also houses scholars writing about human rights law two research centres which have a in the context of South Africa and strong focus on the regional human publishing in South African law journals rights system: the Centre for Human also include these instruments in their Rights based at the University of Preto- work. For example, Gustav Muller ria83 and the Dullah Omar Institute at published an article in a South African the University of the Western Cape.84 law journal in which he discusses the Many publications emanating from eviction of vulnerable unlawful occu- these institutions focus on the African pants in light of women’s rights in terms Charter and Maputo Protocol and their of the Maputo Protocol.87 An increase implementation. Assefa has noted that in scholarship of this kind may encour- the African Human Rights Law Journal age courts to make use of regional published by the Centre for Human instruments in the development of Rights is a major contributor to scholar- socio-economic rights jurisprudence. ship on the African Charter and Maputo 85 Protocol. Law, Democracy and Develop- 11 National human rights ment, a journal of the Faculty of Law at institutions the University of the Western Cape, also makes a significant contribution in this 86 The African Charter and the Maputo regard. Protocol are utilised by the South Afri- can Human Rights Commission (SAHRC) in a variety of ways, includ- ing research publications, programmes, 82 See for example: M Killander & CH Heyns ‘The African regional human rights system’ education and training, public dialogues in C Heyns & K Stefiszyn (eds) Human rights, and workshops. In what follows, the peace and justice in Africa: A reader (2006) 195; M Killander & H Adjolohoun ‘International scope of the SAHRC’s involvement in law and domestic human rights litigation in the African human rights system is Africa’ (2010); F Viljoen ‘An introduction to the Protocol of African Charter on Human discussed. and Peoples’ Rights on the Rights of Women in Africa’ (2009) 16 Washington and Lee Journal of Civil Rights and Social Justice 11; In broad terms, the SAHRC under- F Viljoen International human rights law in stands its mandate as monitoring Africa (2012); F Viljoen ‘The African Charter on Human and Peoples’ Rights: The travaux government obligations, including those préparatoires in the light of subsequent made in terms of international and practice’ (2004) 25 Human Rights Law Journal 313; F Ouguergouz The African Charter on Humans and Peoples’ Rights (2003). 86 enforcement of social, economic and cultural 83 See CHR website http://www.chr.up.ac.za/ rights under the African Charter of Human index.php/about/overview.html (accessed and Peoples’ Rights’ (2004) 8 Law, Democracy 14 September 2015). & Development 1. 84 The Institute was previously named 87 ‘On considering alternative accommodation ‘Community Law Centre’ http://community and the rights and needs of vulnerable lawcentre.org.za/ (accessed 14 September people’ (2014) 30 South African Journal on 2015). Human Rights 4; Muller also makes mention 85 Assefa (n 19 above) 171. of the African Charter. The South African 86 See for example: ST Ebobrah ‘Application of law journal also contain articles on the the African Charter by African sub-regional African regional human rights system, see organisation: pains, gains and the future’ for exmple: TS Bulto ‘Patching the legal (2012) 16 Law, Democracy and Development 49; black hole: Extra-territorial reach of states’ JD Mujuzi ‘Protocol to the African Charter human rights duties in the African Human on Human and Peoples’ Rights on the Rights Rights system’ (2011) 27 South African of Women in Africa: South Africa’s Journal on Human Rights 249; S Gumedze reservations and interpretative declarations’ ‘The NEPAD and human rights: Current (2008) 12 Law, Democracy & Development 4; developments’ (2006) 22 South African Journal P de Vos ‘A new beginning? The on Human Rights 144. Impact of the African Charter and the Maputo Protocol in selected African states 227 regional treaties. In its programmes on compliance and ensures the implemen- the Right to Food in South Africa, the tation of action plans based on interna- African Charter and Maputo Protocol tional and regional activities.91 In order are cited as establishing the legal frame- to foster outcome achievement and work for the recognition of this right.88 impact realisation, the SAHRC incorpo- The SAHRC has held workshops, rates resolutions from international and dialogues and discussions with residents regional engagements undertaken in the across South Africa in order to obtain previous financial year into its planning contributions from ordinary people on process. In this regard, approximately this aspect. The SAHRC also monitors 40 resolutions, ranging across varied South Africa’s progress in realising the human rights areas were considered and right to food in terms of these treaties. addressed during 2013/2014.92
The SAHRC regularly participates Finally the SAHRC is the custodial in the sessions of the African Commis- and monitoring body of the Promotion sion. It was the only national human of Access to Information Act in South rights institution that made a statement Africa. It cites the African Charter along on the human rights situation in South with the Universal Declaration of Rights Africa and across the continent at the as providing the broader legislative 43rd Ordinary Session of the African framework for its work in this regard.93 Commission.89 In October 2012, the SAHRC received the African Commis- 12 State reporting sion award for its commitment to the promotion and protection of human The Ministry of Women located in the rights, its attendance at the sessions and Presidency is tasked with state reporting direct contribution to the work of the under the Maputo Protocol whereas 90 Commission. reporting under the African Charter vests within the Department of Justice In respect of monitoring compliance and Constitutional Development – and following up on South Africa’s International Legal Relations Chief international and regional obligations, Directorate. The coordinating govern- SAHRC interacts with Parliament and ment department is tasked with oversee- stakeholders. This interaction promotes ing the entire process. The process ideally requires the coordinating depart- ment to prepare a baseline report, request contributions on relevant thematic areas and developments from various government departments and oversee interactions with civil society. 88 Right to Food http://www.sahrc.org.za/ home/index.php?ipkArticleID=270 All contributions received from all the (accessed 10 September 2015). 89 43rd Ordinary Session Report http://www. communitylawcentre.org.za/achpr/report/ Report%2043rdSess%20ACHPR%2010Jul0 8.pdf (accessed 10 September 2015). See 91 Further details contained in South African Assefa (n 19 above) 170. Human Rights Commission 2013/2014 90 South African Human Rights Commission International and Regional Activities Action ‘SAHRC receives African Commission Plan. Award for its commitment to the realisation 92 South African Human Rights Commission of human rights’ 10 October 2012 http:// Annual Report 2013/2014. www.sahrc.org.za/home/index.php?ipkArt 93 South African Human Rights Commission icleID=139 (accessed 8 September 2015). Human Rights Development Report 2008. 228 South Africa different stakeholders should be consoli- South Africa has, over the years, dated by the coordinating department. implemented programmes and reforms addressing the above issues. Although South Africa’s initial report on the they do not specifically cite the recom- African Charter was submitted timeous- mendations of the African Commission, ly in October 1998. The second, third they reference the African Charter as and fourth reports were due in October establishing the necessary legal frame- of 2000, 2002 and 2004, respectively. work for the development of govern- These reports were submitted late as a ment policy. To this end, government consolidated report in May 2005. One has instituted policies on social cohesion shadow report was also submitted. aimed at combating xenophobia, the According to the website of the African development of the Victims Charter and Commission, South Africa is behind on the prevention of ukuthwala which work more than five country reports and is yet towards fighting the scourge of gender- to submit a specific and separate report based violence. on progress towards realising the rights enshrined in the Maputo Protocol. 13 Communications The pertinent concluding observa- tions were that in some sections of the To date, there have been three commu- reports, South Africa simply provides a nications submitted to the African Commission which involved South Afri- general description of the provisions of 94 the Charter and the legislation and/or ca. However, no finding has yet been policy put in place, without indicating made against the state. how these measures have contributed to Civil society organisations which enhancing the rights of the persons. The were interviewed pursuant to this study 2005 report lacked detail of the meas- expressed a willingness to take cases to ures taken by South Africa to eradicate the African Commission, should domes- the phenomenon of xenophobia directed tic remedies become exhausted and if it at African migrants. It was noted that would be in the best interest of their despite efforts to implement legislation, clients. However, at this stage, they tend policies and programmes to prevent and to rely on the independence and ‘trans- combat the sexual exploitation of chil- formation-mindedness’ of the domestic dren and violence against women; the courts for the purposes of undertaking African Commission remains concerned human rights litigation relevant to South at the high incidence of sexual violence Africa. It would only be on the rare against women and children.
94 In Gareth Anver Prince v South Africa (2007) In November 2006, at its 40th ordi- AHRLR 40 (HRC 2007), the African nary session, the African Commission Commission decided the matter on the merits and held that there was no violation of passed the Resolution on the impor- the complainant’s rights. Communication tance of the Implementation of the 409/12 Luke Munyandu Tembani and Another v Angola and Thirteen Others was filed against Recommendations of the African South Africa along with thirteen other states Commission on Human and Peoples’ for their decisions and actions in their capacity as SADC member states. Here too, Rights by state parties. This resolution the Commission found no violation of the highlights the necessity of submitting African Charter. Communication 335/06 Dabalorivhuwa Patriotic Front v the Republic of country reports timeously and to follow South Africa was also dismissed http:// up and implement recommendations. www.achpr.org/states/south-africa/ (accessed 28 August 2015). Impact of the African Charter and the Maputo Protocol in selected African states 229 occasion that a party would wish to dence, ensure proper publishing, transla- appeal from the Constitutional Court tion and distribution of its work. Finally that instituting a claim in a regional the Commission was urged to ensure forum would be considered.95 knowledge exchange and training between itself and other human rights 98 14 Special mechanisms – institutions. Promotional visits of the The Special Rapporteur on Prisons African Commission and Conditions of Detention visited the country from 14 to 30 June 2004 and The Commissioner responsible for made specific recommendations for the promotional activities in South Africa improved protection of the rights of pris- visited the country from 25 to oners.99 The Special Rapporteur made 29 September 2001 for the purposes of numerous recommendations to all promoting the African Charter and rais- stakeholders. It was suggested that pris- ing awareness of the African Commis- on officials should be more involved in sion.96 It was recommended that the monitoring the welfare of prisoners and South African government initiate desist from inciting one gang against the extensive awareness programmes on other. Heads of prison should develop human rights for members of the South strategies to combat corruption by pris- African Police Service, immigration offi- on officials. To this end, confidential cials, prison officers and border police. complaint boxes should be used to allow In particular, it was recommended that prisoners to submit confidential the government advocate for the elimi- complaints. Members of civil society, nation of xenophobic attitudes towards especially NGOs, were encouraged to foreigners and immigration. It was constantly visit prisons and other places suggested that specialised training of detention to ensure that the govern- should be provided to the police on the ment is meeting its domestic as well as handling of immigrants, asylum seekers international human rights obligations and refugees. The mission recommend- in respect of persons deprived of their ed that the government put in place liberty; encourage and organise retreats appropriate mechanisms that would and workshops for prison officials and minimise the ill-treatment of alleged ille- inform them of best practices in other gal immigrants at the time of apprehen- penal systems in Africa and around the sion, while in detention and during 97 world; and to support the efforts of deportation. It was also suggested that government by assisting in promoting efforts be taken to eliminate overcrowd- the welfare of prisoners. The donor and ing in prisons. The African Commission international community were urged to was encouraged to develop jurispru-
97 calls to inform a person of their choice of 95 This sentiment was expressed by Sonke their situation, to be allowed to fetch their Gender Justice Network (n 71 above). documents and permits, and, in cases of 96 African Commission on Human and asylum seekers, to be adequately provided Peoples’ Rights ‘South Africa: Promotion with information on the procedure Mission, 2001’ http://www.achpr.org/ applicable to them. states/south-africa/missions/promo-2001/ 98 African Commission on Human and (accessed 16 September 2015). Peoples’ Rights (n 96 above). 97 In further detail, it was suggested that 99 African Commission on Human and government should ensure that alleged illegal Peoples’ Rights ‘South Africa: Prisons and immigrants are allowed to gather their detention conditions, 2004’ http://www. belongings or hand over to a third party of achpr.org/states/south-africa/missions/ their choice, to be allowed to make telephone prisons-2004/ (accessed 16 September 2015). 230 South Africa continue their support to the prison Constitutional Court with the notion sector in South Africa specifically with that their rights have not been vindicat- regard to training and rehabilitation. ed. Also, since South Africans have Lastly, it was recommended that the both the international and domestic Commission of the African Union framework to consider, reliance on should collaborate with members of the regional instruments can easily be Southern African Development neglected. Community to explore the possibility of prisoner exchange. To this end, the Afri- Negative factors which impede the can Union should organise a meeting of impact of the African Charter and SADC Ministers of Corrections and Maputo Protocol include lack of aware- should make prisons and conditions of ness on the part of both government detention an important indicator in the officials and legal practitioners. Since peer review process of the NEPAD.100 not much focus is placed on these instruments in the curricula of under- The researchers were unable to graduate legal studies, few practitioners establish whether effect was given to the appreciate the regional human rights recommendations in the report of the system. One of the interviewees, who is Special Rapporteur. attached to an NGO,101 commented that the main problem with implementa- 15 Factors that may impede or tion lies in the lack of knowledge and enhance the impact of the support of the African Charter and the African Charter, the Maputo Maputo Protocol on the side of govern- Protocol and the African ment. He laments the government’s fail- ure to submit numerous periodic reports Commission over the past decade and believes that there is a fatal disconnect between the The impact of the African Charter and provisions of regional instruments and the Maputo Protocol is enhanced in the awareness of the instruments on the South Africa by the fact that there exists part of the government. a culture of human rights. Courts are bound to consider international law South Africa hosted the 31st ordi- when interpreting the Bill of Rights. nary session of the African Commission South Africa has academic centres and from 2 to 16 May 2002.102 Ms Pansy NGOs which make use of the regional Tlakula, a South African, is currently system and thereby enhance its role. the Chairperson of the Commission. She is also the Special Rapporteur on A positive factor, which has the Freedom of Expression and Access to effect of impeding the impact of regional Information, Chairperson of the Work- instruments, is the effectiveness of ing Group on Specific Issues Related to domestic remedies. South Africans the work of the African Commission generally have faith in the country’s and member of the Working Group on judiciary and are afforded fair hearings Rights of Older Persons and People where their rights are taken into account. There is a long way to go in 101 Keegan Lakay (n 75 above). order to exhaust all local remedies and 102 Department of International Relations and litigants would not often leave the Cooperation ‘African Commission on Human and Peoples’ Rights’ http://www. dfa.gov.za/foreign/Multilateral/africa/afrhr 100 As above. .htm (accessed 16 September 2015). Impact of the African Charter and the Maputo Protocol in selected African states 231 with Disabilities. Dr Barney Pityana was a Commissioner from 1997 to 2003 and released reports on, amongst others, the Zimbabwe Fact Finding Mission of 2002, the Botswana Promotion Mission of 2001 and the Mozambique Promo- tion Mission of 2000. The fact that South African nationals serve on the African Commission and the country’s openness to host sessions of the Commission point to a vested interest on the part of the state and, when prop- erly covered by the media, these facts enhance public awareness of the region- al system. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN SWAZILAND
Dumsani Dlamini* Sizakele Hlatshwayo**
1Introduction in the country falls short of international standards. The African Commission has One prominent feature of the system of expressed its alarm at the failure of the governance in Swaziland is the interac- government of Swaziland to implement tion between the traditional system and its decision in a communication that it the Westminster model of governance.1 decided against the state and has called In furtherance of this unique system of on the government to implement the governance, the Constitution of the recommendations and submit a report 3 Kingdom of Swaziland of 2005 (the on the status of implementation. In a Constitution) states that the Swazi similar vein, the African Commission is nation has found it necessary to blend concerned that the government of the good institutions of traditional law Swaziland has failed to implement the and custom with those of an open recommendations in the report of the democratic society.2 African Commission’s promotional mission to the Kingdom despite calling The Kingdom of Swaziland is a on the government to implement the state party to various human rights recommendations.4 The Universal Peri- instruments some of whose provisions odic Review, in its 19th session, are reflected in the Constitution. commended Swaziland for having made However, in spite of ratification by the positive strides in a number of areas, state of key human rights instruments such as the right to education, but made and the recognition of fundamental several recommendations with regard to rights and freedoms of the individual in other rights. A mid-term review of the justiciable Bill of Rights in the implementation of the recommenda- Constitution, the human rights situation
3 African Commission on Human and Peoples’ Rights (ACHPR) ‘216: Resolution on the Human Rights Situation in the Kingdom of Swaziland’ http://www. * LLM HRDA (Pretoria), Lecturer, University achpr.org/sessions/51st/resolutions/216 of Swaziland. (accessed 4 September 2015). ** LLM HRDA (Pretoria). 4 ACHPR (n 3 above); see also ACHPR 1 UNDP ‘About UNDP in Swaziland' http:// ‘Report of the promotional mission to the www.sz.undp.org/content/swaziland/en/ Kingdom of Swaziland’ http://www.achpr. home/operations/about_undp.html org/files/sessions/41st/mission-reports/sw (accessed 4 September 2015). aziland/misrep_promo_swaziland-2006_ 2 Para 4 of the Preamble to the Constitution. eng.pdf (accessed 13 August 2013).
233 234 Swaziland tions revealed that 38 of the recommen- tion for not entering any reservations to dations have not been implemented, 11 the treaties to which she accedes or rati- have been partially implemented and fies. Her major challenge, however, lies only two have been fully implemented.5 in giving effect to the provisions of the treaties. The Constitution provides that Swaziland is a patriarchal society ‘the government may execute or cause that is heavily steeped in tradition, to be executed an international agree- which permeates all forms of social, ment in the name of the Crown’.9 The political, legal and economic interac- term ‘government’ as used in this tion. This has serious implications for context should be construed as referring gender relations and consequently for to the executive branch of government. the status of women in the country. It is the prerogative of the executive Women in Swaziland are discriminated organ of state to negotiate and sign against in social, economic, legal and international agreements on behalf of cultural spheres. In spite of the adoption Swaziland. of the Constitution, which provides for equality of all before and under the law, The procedure for ratifying treaties some laws still discriminate against is beyond the compass of international women.6 The Constitution states in law.10 This matter falls exclusively with- unequivocal terms that the traditional in the domain of municipal or internal government of Swaziland is adminis- law.11 In this connection, the Constitu- tered in accordance with Swazi law and tion provides that: custom and that the traditional institu- tions are the pillars of the monarchy.7 [A]n international agreement executed by or under the authority of the government shall be subject to ratification and become 2 Ratification of African Charter binding on the government by an Act of and the Maputo Protocol parliament or a resolution of at least two- thirds of the members at a joint sitting of the two Chambers of Parliament.12 Swaziland ratified the African Charter on 15 September 1995 and the Maputo The import of this provision is that 8 Protocol on 5 October 2012. The state before the state expresses its consent to did not enter any reservations to either be bound at the international level by an of the treaties. Swaziland has a reputa- agreement that it has executed, that agreement shall be subject to ‘internal 5 ‘Midterm assessment, Swaziland, July 2014’ ratification’. ‘Internal ratification’ refers http://www.upr-info.org/followup/assessm to a national process of ‘ratification’ or ents/session25/swaziland/MIA-Swaziland .pdf (accessed 26 May 2015). approval, which is a precursor of ‘exter- 6 For an exposition of how the courts of nal ratification’.13 In other words, Swaziland have enforced women’s rights see T Masuku ‘Women and justice in Swaziland: before Swaziland deposits her instru- Has the promise of the Constitution been fulfilled?’ in Heinrich-Boll-Stiftung Perspectives political analyses and commentary Africa, women custom and access to justice 9 Sec 238(1) of the Constitution. (2013); see also CM Fombad ‘The Swaziland 10 KA Acheampong ‘The ramifications of Constitution of 2005: Can absolutism be Lesotho’s ratification of the Convention on reconciled with modern constitutionalism?’ the Elimination of all Forms of (2007) 23 South African Human Rights Law Discrimination Against Women’ (1993) 9 Journal 100. Lesotho Law Journal 79 89-90. 7 Sec 227(1) of the Constitution. 11 Acheampong (n 10 above) 90. 8 ACHPR ‘Swaziland’ http://www.achpr. 12 Sec 238(2)(a) & (b) of the Constitution. org/states/swaziland/ratifications/ 13 F Viljoen International human rights law in (accessed 5 August 2015). Africa (2007) 21. Impact of the African Charter and the Maputo Protocol in selected African states 235 ment of ratification, which is an expres- signs international agreements.18 If it is sion of consent to be bound by an not the King (as head of state and head international agreement, with the rele- of government) or the Minister of vant body or depository, the Parliament Foreign Affairs and International Coop- of Swaziland must have approved of the eration who signs or ratifies a treaty, treaty in question. Parliament shall any other minister or person who manifest its approval by enacting an Act performs these functions should comply of parliament or a resolution supported with article 7 of the Vienna Convention by at least two-thirds of the members at on the Law of Treaties of 1969. It is the a joint sitting of the two chambers of ministry of Foreign Affairs and Interna- parliament. The act of depositing an tional Cooperation that is mostly instrument of ratification with the responsible for depositing instruments of appropriate depository shall bind Swazi- ratification with the appropriate land only at the international level. bodies.19 Furthermore, the Constitution Carefully construed, section 238(2) of stipulates that the Attorney General, the Constitution suggests that ‘external who is the principal legal advisor to the ratification’, which is not preceded by government,20 an ex officio member of parliament’s approval, shall not bind the Cabinet21 and an ex officio member Swaziland. This proposition resonates of the House of Assembly,22 shall with the postulation that acceptance of peruse treaties and conventions to the binding effect of a treaty has both which the government is a party or in external and internal phases.14 The respect of which it has an interest.23 The external aspect will manifest itself on the state shall not conclude an agreement, international plane whereas the internal treaty or convention without the advice facet depends on national processes.15 It of the Attorney General.24 is important that both dimensions be satisfied. The Constitution further 3 Government focal point provides that the provisions of section 238(2) shall not be applicable if the The Ministry of Justice and Constitu- international agreement is of ‘a techni- tional Affairs is responsible for the cal, administrative or executive nature state’s response and responsibilities or is an agreement which does not under the African Charter. The Ministry 16 require ratification or accession’. has appointed a crown counsel from the Attorney General’s chambers as a focal Swaziland does not have a clear person in furtherance of this role. In policy or legislation that states in whom discharging the state’s responsibilities, power to sign or ratify international the officer communicates with the Afri- agreements on behalf of the state 17 can Commission from time to time and resides. Either the King or a minister attends specific meetings pertaining to the African Charter. 14 As above. 15 As above. 16 Sec 238(3) of the Constitution. 17 ‘Workshop on the Protocol to the African Charter on the rights of women: Women and 18 Matsebula (n 17 above) 19. law in Southern Africa Research 19 As above. Educational Trust’ Paper prepared and 20 Sec 77(3)(a) of the Constitution. presented by SJK Matsebula, Principal 21 Sec 77(3)(b) of the Constitution. Parliamentary Counsel, Attorney General’s 22 Sec 95(1)(d) of the Constitution. Chambers at a workshop held at La 23 Sec 77(5)(b) of the Constitution. Casserole on 26-27 June 2001. 24 Sec 77(7) of the Constitution. 236 Swaziland
The Gender and Family Issues treaties in Swaziland. After the Department under the Deputy Prime commencement of the Constitution, a Minister’s office is the focal point of the plethora of case law authority has state’s response and responsibilities on emerged supporting the proposition that the Maputo Protocol. The mandate of unincorporated treaties may be used as the department is to coordinate all interpretative sources, but do not form programmes on gender and family part of domestic law until parliament issues, prepare the state’s initial and enacts them into municipal law.28 periodic reports on gender issues, raise awareness and build the capacity of The domestic Bill of Rights guaran- government institutions and the people tees some of the rights and freedoms of Swaziland on gender issues. enshrined in the African Charter. These are the right to life;29 the right to liber- The focal person at the Ministry of ty;30 the right to a fair hearing;31 the Justice and Constitutional Affairs liaises right to freedom from slavery and forced with the African Commission through labour;32 the right to freedom from the Swazi Embassy in Ethiopia. This inhuman or degrading treatment;33 the trail of communication is protracted and right to own property;34 the right to as a result, focal points have in some equality before the law;35 the right to instances missed deadlines because of freedom from arbitrary search and delayed communication. entry;36 the right to freedom of conscience or religion;37 the right to 38 4 Domestication or incorporation freedom of expression and opinion; the right to freedom of assembly and 39 The Constitution is the supreme law of association; and the right to freedom 40 Swaziland.25 Unless it is self-executing, of movement. In fact, it may be a treaty does not form part of the munic- contended that the framers of the ipal law of Swaziland until parliament Constitution were, to an extent, guided enacts it into the domestic legal by the African Charter when they were system.26 In the case of Ray Gwebu v R,27 the Court of Appeal of Swaziland 28 Masinga v Director of Public Prosecutions & (now the Supreme Court) determined Others (21/07) [2011] SZHC; Southern that unincorporated international agree- Trading Company v Minister of Agriculture& Cooperatives & 4 Others (50/2011) [2011] ments may be used as aids to interpreta- SZSC 17; Swaziland National Ex-Miners tion but may not be treated as part of Workers Association & Another v The Minister of Education & Others (335/09) [2009] SZHC municipal law for purposes of adjudica- 104; Fakudze & Others v Director of Public tion in a domestic court. It is worth Prosecutions & Another (237/08) [2008] SZHC 16; Stapley v Dobson (2240/07)[2008] SZHC mentioning that the Court decided this 11; Sithole NO and Others v Prime Minister of case before the Constitution came into the Kingdom of Swaziland & Others (2792/ 2006) [2007] SZHC 1 http://www.swa force. It appears that the Constitution zilii.org (accessed 5 August 2015). affirmed the legal position that prevailed 29 Secs 14(a) & (15) of the Constitution. 30 Sec 16 of the Constitution. before it came into force in respect of 31 Sec 21 of the Constitution. the domestication or incorporation of 32 Sec 17 of the Constitution. 33 Sec 18 of the Constitution. 34 Sec 19 of the Constitution. 35 Sec 20 of the Constitution. 25 Sec 2(1) of the Constitution. 36 Sec 22 of the Constitution. 26 Sec 238(4) of the Constitution. 37 Sec 23 of the Constitution. 27 http://www.swazilii.org/files/sz/judgment 38 Sec 24 of the Constitution /supreme-court/2002/21/ray_gwebu_pdf_2 39 Sec 25 of the Constitution. 1134.pdf (accessed 5 August 2015). 40 Sec 26 of the Constitution. Impact of the African Charter and the Maputo Protocol in selected African states 237 drafting the provisions of the Constitu- These include, amongst others, repro- tion. Although the language in which ductive rights, the right to food security, the corresponding rights contained in the right to adequate housing, and the both documents is couched may not be right to sustainable development. Some identical, the import of these provisions commentators may argue that the is substantially similar. It is worth conspicuous omission of these rights in noting that the Bill of Rights, which the Bill of Rights can be excused on the appears in sections 14 to 39 of Chapter ground that the Constitution came into III of the Constitution and captioned force before Swaziland ratified the ‘Protection and Promotion of Funda- Maputo Protocol. It is submitted, mental Freedoms’, is specially however, that this contention can be entrenched.41 The Bill of Rights, howev- faulted on several counts. First, when er, does not recognise some of the socio- the state adopted the Constitution, it economic rights guaranteed in the Afri- had already signed, although it was not can Charter. The non-inclusion of socio- then a state party to, the Maputo Proto- economic rights in the Bill of Rights col. Swaziland signed the Maputo puts a damper on the Constitution. As Protocol on 7 December 2004.46 The noted by Fombad, although inserting Constitution came into force on 26 July socio-economic rights in the Bill of 2005. By virtue of being a signatory Rights will not necessarily render them state, Swaziland had the obligation not legally enforceable, it is an indication to act in a manner that would under- that the state accords them pride of mine the object and purpose of the place.42 Maputo Protocol. The Maputo Protocol should have influenced the drafting of Section 27 of the Bill of Rights the provisions of the Constitution, espe- states that marriage shall be entered into cially those that relate to women’s only with the free and full consent of rights. This act of omission by the state 43 both parties. This constitutional provi- undermined the object and purpose of sion accords with article 6(a) of the the instrument. Second, a state that has Maputo Protocol. In keeping with arti- signed a human rights treaty, and that is cle 2(2) of the Maputo Protocol, the wholeheartedly committed to the Constitution provides that ‘a woman promotion of and respect for human shall not be compelled to undergo or rights, ought to conduct a compatibility uphold any custom to which she is in study on the basis of which it brings into 44 conscience opposed’. In conformity conformity the treaty and any national with the equality principle of the Mapu- law that offends against the treaty provi- to Protocol, the Constitution provides sions.47 This should be done prior to that women have the right to equal ratification. Swaziland ratified the 45 treatment with men. Maputo Protocol in 2012. It was expect- ed that, when the state ratified the The Bill of Rights, however, does Maputo Protocol, its Constitution not recognise the bulk of the rights would be in line with it. However, both enunciated in the Maputo Protocol.
46 ACHPR ‘Ratification Table: Protocol to the African Charter on Human and Peoples' 41 Sec 246(2)(c) of the Constitution. Rights on the Rights of Women in Africa’ 42 Fombad (n 6 above) 101. http://www.achpr.org/instruments/women- 43 Sec 27(2) of the Constitution. protocol/ratification (accessed 11 September 44 Sec 28(3) of the Constitution. 2013). 45 Sec 28(1) of the Constitution. 47 Viljoen (n 13 above) 22. 238 Swaziland the Constitution and ordinary legisla- property.54 All the rights listed above tion retain provisions that fly in the face give effect to certain provisions of the of the Maputo Protocol. African Charter. The resuscitated Sexu- al Offences and Domestic Violence Bill Swaziland has not incorporated the of 2015 states that its object is, amongst African Charter and the Maputo Proto- other things, to give effect to the several col into ordinary legislation, although international instruments dealing with certain provisions of both instruments sexual and domestic violence, including have become part of domestic law by the African Charter and the Maputo way of reception or transformation. This Protocol. means that parliament has amended or repealed certain legislative provisions to 5 Legislative reforms or adoption conform to standards contained in these instruments, though without expressly There is no evidence to indicate that stating that these standards have their Swaziland undertook a compatibility origin in these instruments. For exam- study before she ratified the African ple, parliament amended section 16(3) Charter or the Maputo Protocol. of the Deeds Registry Act of 1968 However, both instruments have had an (Deeds Registry Act) to give effect to the impact on the domestic legal system as equality provisions of the African Char- parliament has amended legislation and ter and the Maputo Protocol. Further- the High Court has invalidated certain more, parliament has domesticated the aspects of the common law concept of Maputo Protocol by way of reception marital power to give effect to the provi- through enacting section 27(2) of the sions of these instruments. Constitution, which provides that marriage shall be entered into with the Parliament amended the Deeds free and full consent of the intending Registry Act in order to give effect to the spouses. This section resonates with equality provisions of the African Char- article 6(a) of the Maputo Protocol. ter and the Maputo Protocol, courtesy of a landmark decision of the Supreme In addition, there are pieces of legis- Court, the final court of appeal in lation that refer to provisions of the Afri- Swaziland, in the case of Attorney-Gener- can Charter and the Maputo Protocol. al v Aphane.55 The facts of the case were The Children’s Protection and Welfare that the respondent, who was the appli- Act of 2012, for example, enshrines the cant in the court a quo, approached the right to freedom from discrimination;48 Court a quo for an order declaring that the right to education;49 the rights of 50 section 16(3) of the Deeds Registry Act children with disabilities; the right to was invalid because it was inconsistent opinion;51 the right to protection from 52 with the provisions of sections 20 and exploitative labour; the right to free- 28 of the Constitution. Section 20 of the dom from torture or other cruel, inhu- Constitution provides for equality before mane or degrading treatment or 53 the law and equal protection of the law. punishment; and the right to parental Section 28 provides that women have the right to equal treatment with men. 48 Sec 4. 49 Sec 9. 50 Sec 11. 54 Sec 17. 51 Sec 12. 55 (12/09) [2010] SZSC 32 http://www. 52 Sec 13. Swazilii.org/sz/judgment/Supreme-Court/ 53 Sec 14. 2010/ 32 (accessed 7 August 2013). Impact of the African Charter and the Maputo Protocol in selected African states 239
The respondent and her husband were the Roman Dutch common law position married in community of property. that a woman who is married in They entered into an agreement to community of property and who is purchase immovable property and under her husband’s marital power has wished to have the property registered no locus standi in judicio to sue and be in their joint names. However, they sued in her own name was inconsistent failed to register the property in their with the constitutional right of equality joint names on the basis that because for all before the law. This common law they were married in community of position was therefore found to be inva- property, the property would be regis- lid to the extent of the inconsistency. tered in the sole name of the husband as dictated by section (16)(3) of the Deeds Parliament has also adopted the Registry Act, thereby excluding the Children’s Welfare Act and the People respondent’s name. It is against this Trafficking and People Smuggling background that the respondent sought (Prohibition) Act of 2009 to give effect the invalidation of section 16(3). The to the provisions of the African Charter Court a quo concurred with the respond- and the Maputo Protocol. ent, ruling that section 16(3) of the Deeds Registry Act was unconstitution- 6 Policy reform or formulation al. As a remedy, the court severed the offending words in the provision and The government of Swaziland has replaced them with words that would adopted several policies to give effect to make the provision constitutional. The the African Charter and the Maputo Attorney General appealed against the Protocol. The National Gender Policy remedies of severance and reading in of 2010 provides a national framework and argued that the appropriate remedy and strategies for gender mainstreaming was to be determined by parliament. and women’s empowerment in order to The Supreme Court upheld the appeal give effect to the Constitution and other but declared that section 16(3) of the relevant international and regional Deeds Registry Act was inconsistent human rights instruments to which the with sections 20 and 28 of the Constitu- country is a state party. The National tion and was therefore invalid. The Gender Policy highlights nine thematic Supreme Court suspended the declara- areas that are considered critical in the tion of invalidity for a period of twelve advancement of gender equality in months to afford Parliament an oppor- Swaziland. It also articulates that the tunity to enact legislation that would African Charter and the Maputo Proto- rectify the invalidity. Parliament has col guide it.57 The Poverty Reduction amended the offending provisions to Strategy and Action Plan ‘puts emphasis bring them into conformity with the on affording equal opportunity to all Constitution. citizens regardless of sex or race to access social and economic services in 56 In another landmark decision, a order to enhance their development’. full bench of the High Court held that This is in line with the prohibition on discrimination recognised in the African
56 Nombuyiselo Sihlongonyane v Mholi Sihlongonyane (470/2013) [2013] SZHC 144 57 http://www.undp.org/content/dam/swazi http://www.Swazilii.org/sz/judgment/Hig land/docs/publications/UNDP_SZ_Gender h-Court/2013/144-0 (accessed 7 August _SwazilandNational Gender Policy2010.pdf 2013). (accessed 25 August 2105). 240 Swaziland
Charter and the Maputo Protocol. The In similar fashion, the High Court National Development Strategy of 1997 has also referred to the Human Rights accords high priority to gender equality Committee General Comment 28 on the and the eradication of gender imbalanc- Equality of Rights between men and es and proposes strategies that seek to women (2000) in the Nombuyiselo Sihlon- eliminate gender inequality and offer gonyane case.59 The Court observed that equal opportunities to all citizens irre- Swaziland was a state party to the Inter- spective of their sex. The Swaziland national Covenant on Civil and Political National Children’s Policy of 2009 Rights and that in enacting the equality informed the drafting of the Children’s provisions of the Constitution, the coun- Protection and Welfare Act of 2012. try was aware of its obligations to its This Act is underpinned by the Conven- people in this regard and of its interna- tion on the Rights of the Child, The tional obligations under this human African Charter and the Maputo Proto- rights instrument.60 Based on this col, all of which enjoin states parties to reasoning, the Court held that the take measures to protect the rights of the common law concept of marital power child. was, to the extent that it barred married women from suing and being sued with- 7 Court judgments out the assistance of their husbands, inconsistent with sections 20 and 28 of There are very few cases in which the the Constitution courts have referred to provisions of the In African Charter or Maputo Protocol or Mabila v The Director of Public Pros- ,61 to the jurisprudence of the African ecutions the applicants had been tried Commission. in camera before a specially constituted tribunal. They brought an application In Fakudze v The Director of Public before the High Court to have the Prosecutions,58 the Director of Public record of proceedings relating to their Prosecutions had indicted the applicants trial, in which they were convicted of on charges of fraud, corruption and high treason, released to them. In theft. Since the state was taking too long opposing the application, the respond- to prosecute, the applicants applied to ents contended that since the proceed- the High Court for an order permanent- ings before the tribunal were conducted ly staying their prosecution. They in camera, the release of the record was argued, amongst other things, that the precluded. The Court referred to various state had violated their right to a fair human rights instruments including the trial by delaying their prosecution. In African Charter as aids to interpretation determining the case, the Court referred to buttress the principle that in camera to the principles and guidelines on the trials are the exception and not the rule. right to a fair trial adopted by the Afri- The Court further stated that this princi- can Commission as an interpretative ple is coupled with the requirement that guide. In view of the circumstances of the case, the Court dismissed the appli- 59 Nombuyiselo Sihlongonyane (n 56 above) para cation. 27. 60 Nombuyiselo Sihlongonyane (n 56 above) para 29. 58 (237/08) [2008] SZHC 161 http://www. 61 (3347/2003) [2009] SHZC 119 http://www. swazilii.org/files/sz/judgment/high-court/ swazilii.org/files/sz/high-court/2009/119/ 2008/161/SZHC_237_2008.pdf (accessed SZHC_334-2003.pdf (accessed 8 August 8 August 2008). 2015). Impact of the African Charter and the Maputo Protocol in selected African states 241 after an in camera hearing, the whole or ments at the 54th ordinary session of the part of the judgment has to be made African Commission, at which they public. The Court stated that trials took turns castigating the state for its behind closed doors with secret judg- violation of human rights and failure to ments tainted any judicial system in implement previous recommendations which the rule of law and fair trial rights of the African Commission.63 Their use have any meaning at all. The Court of Concluding Observations has been gave judgment for the applicants. The minimal. This may be attributed, among Court in this case cited the relevant other things, to the fact that Swaziland provisions of the African Charter but has not been consistent in submitting unfortunately did not refer to the Afri- her periodic reports to the African can Commission’s interpretation of the Commission and as such very few provisions. Observations have been made. Moreo- ver, the state has not disseminated even In as much as the courts occasional- the Concluding Observations of the only ly refer to the African Charter and the report that was submitted. Maputo Protocol, they have been shy to refer to the jurisprudence of the African The Coordinating Assembly of Commission for interpretative guidance Non-Governmental Organisations on the rights that have a bearing on (CANGO), which is the umbrella body highly contentious issues in the King- of non-governmental organisations in dom. For example, the courts have not Swaziland, has made an effort to height- referred to the exposition of the African en CSO awareness of human rights in Commission on what it understands to Swaziland.64 CSOs comprise non-regis- be the scope and content of the right to tered and registered non-governmental freedom association in the context of organisations, community-based and political parties. faith-based organisations, amongst others.65 CANGO has established a 8 Awareness and use by civil Governance and Human Rights Consor- society tia that will, amongst other things, facili- tate the ‘integration of human rights responsive programming and develop- Civil society organisations (CSOs), espe- 66 cially those whose mandate involves the ment’. The establishment of the promotion and protection of human consortia is a reaction to the dearth of rights, are aware of the African Charter knowledge amongst some CSOs on the human rights-based approach to devel- and the Maputo Protocol. In this 67 respect, they have filed communications opment. CANGO is concerned that, before the African Commission.62 Some in spite of the adoption of a national CSOs refer to provisions of these human constitution which reflects numerous rights instruments, especially those involved in legal education. CSOs also 63 R Lee ‘Swaziland under fire at the African displayed their awareness of both instru- Commission’ 29 October 2013 http://www. osisa.org/hrdb/swaziland/swaziland-under- fire-african-commission (accessed 11 August 62 Communication 444/13 Justice Thomas 2015). Masuku (represented by Lawyers for Human 64 ‘CANGO Governance and Human Rights Rights Swaziland) v Swaziland; Communica- Consortium Strategic Plan’ The Swazi News tion 414/12 Lawyers for Human Rights Swazi- 2 November 2013. land (Swaziland) v The Kingdom of Swaziland; 65 As above. Lawyers for Human Rights Swaziland v Swazi- 66 As above. land (2005) AHRLR 66 (ACHPR 2005). 67 As above. 242 Swaziland fundamental human rights and free- the state.71 Lawyers have not referred to doms, lack of knowledge on the Consti- the Maputo Protocol as extensively in tution and Bill of Rights undermines the their arguments. This may be attributed realisation and enjoyment of these to the fact that Swaziland only ratified rights.68 The development of an advoca- the Maputo Protocol in 2012. cy strategic plan will, according to CANGO, assist CSOs with a frame of Judges have shown growing aware- reference and enable them to address ness of the African Charter and the 72 issues of governance and human Maputo Protocol in their judgments. rights.69 And, as noted above, one judge has referred to the jurisprudence of the Afri- 9 Awareness and use by lawyers can Commission as an interpretative source in deciding a case.73 Human rights law became a fully- fledged course in the curriculum of the 10 Higher education and academic University of Swaziland when the writing university introduced the new Bachelor of Laws programme in 2001. Awareness The University of Swaziland introduced of human rights increased after the a course in human rights law in the introduction of this programme, espe- 2001 academic year. A human rights cially amongst lawyers who graduated law course outline for the 2015 academ- from it. This does not suggest that ic year reflects that the African system lawyers did not bring human rights of human rights protection is one of the related cases before courts before 2001. topics covered in this course and the Lawyers did file human rights related African Charter appears as one of the cases in courts before this period but major legal instruments cited in this such cases were not as pronounced as course. The Maputo Protocol features they are today. The adoption of the prominently in the discourse on such Constitution with a justiciable Bill of rights as the right to equality. Rights coupled with the increase in the number of lawyers with a background in There is a dearth of literature by human rights law has seen an increase Swazi legal academics on the African in human rights related cases before Charter and the Maputo Protocol. domestic courts. There is heightened There is, however, a journal article in awareness of the African Charter and which a legal academic laments the the Maputo Protocol, especially omission of economic, social and cultur- 74 amongst lawyers who are interested in al rights in the Bill of Rights. She human rights litigation. There are court contends that, by virtue of being a state cases in which lawyers have referred to the African Charter in their argu- 71 Communication 406/11 Law Society of 70 Swaziland v Swaziland http://www.achpr. ments. The law society of Swaziland org/files/activity-reports/37_2015_eng.pdf has also tabled a communication before (accessed 11 August 2015). 72 Ndzimandze & Others v Ndzimandze & Others the African Commission in which it (981/14) [2014] SZHC 234; Masinga v alleged violations of human rights by Director of Public Prosecutions & Others (21/07) [2011] SZHC 58; Fakudze (n 58 above); Mabila (n 61above). 68 As above. 73 Mabila (n 61 above). 69 As above. 74 SM Langwenya ‘Recent Legal Develop- 70 Ray Gwebu (n 27 above); Sithole NO (n 28 ments ‒ Swaziland’ (2005) University of above). Botswana Law Journal 170. Impact of the African Charter and the Maputo Protocol in selected African states 243 party to the African Charter, Swaziland for state reporting under the African was expected to recognise these rights in Charter and the Maputo Protocol the Bill of Rights. respectively. The process of preparing a report is not clear as Swaziland has 11 National human rights submitted only one report on the Afri- institutions can Charter. There is no evidence that either the state or civil society dissemi- The Constitution provides for the estab- nate Concluding Observations of the lishment of a Commission on Human African Commission. Rights and Public Administration As has been noted in the antecedent (CHRPA).75 The Constitution outlines paragraphs, Swaziland has not been the functions76 and powers77 of the consistent in submitting state reports to CHRPA. The CHRPA was constituted the African Commission. Swaziland through Legal Notice 143 of 2009. By submitted the first periodic report, June 2013, the CHRPA had received 68 which covered the period from 1995 to cases of alleged human rights viola- 2000 on 21 February 2000; four years tions.78 The bulk of these cases allege after the first report became due.80 This violations of the right to a fair hearing, is the only report that the state has the right to administrative justice, the submitted to the African Commission. right to freedom from inhumane or degrading treatment and the rights of 79 In respect of the submission of peri- workers. In 2009, the CHRPA odic reports, the then Minister of Justice presented to parliament the Human and Constitutional Affairs apologised to Rights and Public Administrative Bill the promotional mission that visited that would fully operationalise the Swaziland, on 21-26 August 2006, for CHRPA. To date, however, parliament the state’s failure to submit reports.81 He has not enacted the Bill into law. Since assured the mission that since Swazi- the CHRPA is not fully operational, it land had adopted a constitution; the faces challenges which include process- state intended to comply with its inter- ing the cases that it has received and national obligations, including attending otherwise discharging its mandate as sessions of the African Commission.82 required. However, Swaziland has not lived up to the Minister’s promise. The study could 12 State reporting not ascertain the composition of the government’s delegation during the The Ministry of Justice and Constitu- presentation of the state report on the tional Affairs and the Gender and Fami- African Charter. It was impossible for ly Issues Department under the Deputy the researchers to find the report that Prime Minister’s Office are responsible Swaziland submitted to the African Commission and the website of the Afri- can Commission does not have the 75 Sec 163(1) of the Constitution. 76 Sec 164 of the Constitution. report, although it reflects that the state 77 Sec 165 of the Constitution. 78 ‘Swaziland Commission on Human Rights and Public Administration Strategic Plan 2013-2017’ http://www.undp.org/content. 80 http://www.achpr.org/states/swaziland/rep dam/swaziland/docs/publications/UNDP_ orts/1st-1995-2000/ (accessed 4 September SZ_Governance_Swaziland (accessed 2015). 5 August 2015). 81 ACHPR (n 4 above). 79 As above. 82 ACHPR (n 4 above) 13. 244 Swaziland submitted its report during that period. than what the state offers in practice. In the absence of the report, the Swaziland has adopted a constitution researchers could not establish the perti- whose Bill of Rights recognises some of nent concluding observation. Swaziland the civil and political rights guaranteed has not yet submitted her initial report in the African Charter. To some extent, on the Maputo Protocol. The report the state has complied with article 1 of became due on October 2014. the African Charter. In keeping with article 7 of the African Charter, the 13 Communications Constitution provides for the right to a fair hearing.86 The extent to which this The African Commission has decided right is applicable in Swaziland is a against the state in one communica- matter of speculation as the Judicial tion.83 The state has not given any Service Commission, whose chair is the exposure to or disseminated the findings Chief Justice, recommended the remov- of the African Commission. A special al from office of a judge of the High mission of the African Commission Court after a hearing that made a mock- visited Swaziland in 2006 and inquired ery of the right to fair trial and all that it from the then Minister of Justice and stands for. The Constitution recognises Constitutional Affairs as to what meas- the right to freedom of assembly and 87 ures the state had taken to implement association as guaranteed in the Afri- the recommendations of the African can Charter. In the context of the opera- Commission on the communication tion of political parties in Swaziland, against Swaziland.84 The Minister’s however, the enjoyment of this right response was that the state had not remains a contentious issue. In spite of received an official communication on the recognition of freedom of associa- the decision and that it learnt of the tion in the Constitution, there is no law decision by chance.85 The findings of that regulates the operation of political the African Commission in the commu- parties. The Attorney General has nication against Swaziland were that the argued that section 79 of the Constitu- state had, through certain legislation, tion, which provides that the system of violated articles 1, 7, 10, 11, 13, and 26 government in Swaziland emphasises of the African Charter. The African individual merit as the basis for election Commission recommended that Swazi- or appointment to public office, ‘repre- land align the offending legislation with sents a fundamental choice by the provisions of the African Charter and people, a choice that individuals not that the state should involve stakehold- groups may participate in the govern- 88 ers, including civil society, in the ance of the country’. In similar fash- conception and drafting of the new ion, he has argued that political parties Constitution. are allowed to exist in Swaziland but cannot contest political power.89 The The state has adopted legislative primary aim of political parties is to measures to implement the recommen- contest for political power in order to dations of the African Commission, govern or rule if voted into office. The although such measures promise more
86 Sec 21 of the Constitution. 87 Sec 25 of the Constitution. 83 Lawyers for Human Rights (n 62 above). 88 ‘AG tells judges to back off’ Times of 84 ACHPR (n 4 above). Swaziland 25 July 2008 4. 85 As above. 89 As above. Impact of the African Charter and the Maputo Protocol in selected African states 245 argument by the Attorney General is in Court, however, has dismissed such stark contrast with the observation of allegations.93 the Constitutional Court of Uganda:90 14 Special mechanisms and The freedoms to assemble and associate do not only concern the right to form a promotional visits of the political party but also guarantee the right African Commission of such a party once formed to carry out on its political activities freely. The African Commission undertook a promotional visit to the Kingdom of Swaziland has enacted section 141 of Swaziland from 21 to 25 August 2006.94 the Constitution, which guarantees the The terms of reference of the promo- independence of the judiciary, in order tional mission included discussions on to implement the recommendation that the implementation of the African the state should bring its offending legis- Commission’s decision on the commu- lation into conformity with article 26 of nication against Swaziland and the the African Charter. Although at the process of ratification of the Maputo formal level independence of the judici- Protocol, the Protocol to the African ary is guaranteed, a judge of the High Charter on the Establishment of the Court was removed from office because African Court, the African Charter on of a statement he had made in his judg- the Rights and Welfare of the Child and ment. The Judicial Service Commission the submission of Swaziland’s state framed disciplinary charges against him reports in accordance with article 62 of and recommended his removal from the African Charter. The promotional office, contrary to the constitutional mission also sought to (i) promote the stipulation that African Charter and deliberate on the a judge of a superior court or any person interpretation and implementation of exercising judicial power shall not be liable the African Charter; (ii) heighten aware- to any action or suit for any act or ness of the African Commission and its omission by that judge or person in the role among government departments exercise of the judicial power.91 and civil society; and (ii) promote closer The African Commission has expressed relationships between the African alarm at the failure of the government of Commission and Swaziland. The Swaziland to implement its decision in promotional mission held meetings with this communication and has thus called relevant ministers of the Crown, the law on the government to implement the society of Swaziland, the Commissioner recommendations and submit a report of Police and civil society. on the status of implementation.92 In the context of the 28 recommen- There are concerns that the Consti- dations determined by the promotional tution is not broadly representative of mission, the government was required the Swazi society because some stake- to, amongst other things, abolish the holders and CSOs were excluded in its death penalty, ratify the Maputo Proto- conception and drafting. The Supreme col, establish a human rights commis-
90 Dr Paul Ssemwogerere and Others v Attorney 93 Sithole & Others v The Prime Minister & Others General Constitutional Petition No 5/2002 (35/2007) [2007] SZSC http://www. (CC) (Unreported). Swazilii.org/sz/judgment/Supreme-Court/ 91 Sec 141(4) of the Constitution. 2013 (accessed 7 August 2013). 92 ACHPR (n 3 above). 94 ACHPR (n 4 above). 246 Swaziland sion that complies with the Paris col, vitiates the impact of these treaties. principles, submit periodic reports to the Since the adoption of the Constitution, African Commission and effectively the courts have expressed, in not less implement the decision in the communi- than three decisions, their concern about cation against Swaziland. The state has parliament’s sluggishness in aligning given effect to one of these recommen- ordinary law with the Constitution.95 dations, that is, it has ratified the Mapu- to Protocol. There is no evidence that a Third, failure by the courts to refer special mechanism of the African to the jurisprudence of the African Commission has visited Swaziland or Commission as an interpretative source made recommendations to the country. when interpreting rights enshrined in African Charter and the Maputo Proto- 15 Factors that may impede or col discount the impact of these instru- enhance the impact of the ments. It is indisputable on the one hand that the jurisprudence of the Afri- African Charter, the Maputo can Commission is not binding on the Protocol and the African courts of Swaziland because the state Commission has not incorporated these instruments. On the other hand, it is axiomatic that The factors presented below may the general comments of this treaty impede the impact of the African Char- body provide an authoritative interpreta- ter, the Maputo Protocol and the Afri- tion of relevant treaty provisions and can Commission. First, the exclusion have persuasive authority. Referring to from the Bill of Rights of certain rights the jurisprudence of the African enunciated in the African Charter and Commission can enrich the jurispru- the Maputo Protocol negate implemen- dence of the courts of Swaziland tation and the possible impact of these treaties. This assertion finds a measure Fourth, the absence of a Human of support in the Ray Gwebu. The Rights Commission that complies with Supreme Court decided this case when the Paris Principles96 is a drawback not the Constitution was in the process of only to the protection and promotion of formulation. The Court stated in its obit- human rights generally but also to the er dictum and in an advisory tone that specific protections offered by the Afri- the norms recognised in the African can Charter and the Maputo Protocol Charter to which Swaziland had specifically. pledged her adherence should be reflect- ed in the Constitution. The Court observed that this was necessary in order for the state to fulfil its obligation ‘to adopt legislative or other measures to give effect to the rights, duties and free- doms enshrined in the Charter’. 95 Ndzimandze (n 80 above) para 8; Attorney- General v Aphane (n 63 above) para 61; Aphane v Registrar of Deeds & Others (383/09) [2010] Second, parliament’s tardiness in SZHC 29 paras 16 & 34 http://old. enacting legislation to give effect to the swazilii.org/sz/judgment/high-court/2010/ 29 Constitution, some of whose provisions 96 These are international standards that frame give effect to the rights recognised in the and guide the work of International Human Rights Institutions and were adopted by the African Charter and the Maputo Proto- General Assembly of the United Nations in 1993. Impact of the African Charter and the Maputo Protocol in selected African states 247
Fifth, the lack of awareness of conformity with this Constitution’. This human rights by individuals vitiates the constitutional stipulation suggests that impact of these human rights instru- laws that offend against the Constitution ments. As noted by CANGO97 and the should be reformed. Law reform agen- CHRPA,98 ignorance of human rights cies play a critical role in bringing laws by the generality of the Swazi popula- into conformity with the notion of tion poses a major challenge to the human rights. Swaziland does not have enjoyment of rights. Individuals cannot a law reform commission that would, agitate for their rights and hold govern- amongst other things, align the law with ment accountable if they are not aware current circumstances, eliminate defects of their rights. in the law or advise on or initiate proposals for the introduction of new Sixth, litigation by its very nature is methods for the administration of expensive. Awareness of rights serves no justice.99 useful purpose if the rights-holder cannot vindicate those rights in court. Addressing the challenges discussed The absence of a national legal aid above may enhance the impact of the system in Swaziland impedes enjoyment African Charter and the Maputo Proto- of the rights contained in the African col. There is also a need for judicial Charter and the Maputo Protocol, espe- activism. As noted previously, the Bill cially by vulnerable groups such as of Rights does not recognise the bulk of women, children, the elderly and the socio-economic rights guaranteed in persons with disabilities. the African Charter and the Maputo Protocol. In this respect, Swaziland is in Seventh, the inconsistency of the dire need of an activist bench that would state in submitting its periodic reports to engage in an expansive reading of civil the African Commission negates the and political rights, to include aspects of provisions of the African Charter and socio-economic protection. the Maputo Protocol. By submitting its reports, the state would benefit from the The African Commission held its Concluding Observations of the African 43rd ordinary session in Swaziland from Commission, which highlight areas in 7 to 22 May 2008. The objective of the which a state has to take further action. session was to enhance the promotion and protection of human rights on the Eighth, section 268(1) of the Consti- continent. No national of Swaziland has tution provides that ‘[the] existing law, ever been a member of the African after the commencement of this Consti- Commission. tution, shall as far as possible be construed with such modifications, The media plays a significant role in adaptations, qualifications and excep- exposing human rights violations perpe- tions as may be necessary to bring it into trated by the state and non-state actors. The media has exposed, amongst other 97 ‘CANGO Governance and Human Rights things, police brutality against individu- Consortium Strategic Plan’ The Swazi News 2 November 2013. 98 ‘Swaziland Commission on Human Rights and Public Administration Strategic Plan 2013-2017’ http://www.undp.org/content. 99 JE Ruhangisa ‘Human rights and good dam/swaziland/docs/publications/UNDP_ governance: The role of law reform agencies’ SZ_Governance_Swaziland (accessed (2005) 11 East African Journal of Peace and 5 August 2015). Human Rights 108. 248 Swaziland als, violence and discrimination against women and abuse of children. THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN TANZANIA
Grace Kamugisha Kazoba* Charles Mmbando**
1 Introduction occurred in 1964. Zanzibar still retains some distinct features of a sovereign 2 The United Republic of Tanzania is a state, popularly regarded in Tanzania union of two former sovereign states, as features of an autonomous territory, Tanganyika and the Peoples’ Republic such as having its own legislature over 3 of Zanzibar. This came about as the non-union matters; and a judiciary up result of ratification of the Articles of to the level of the high court distinct Union on 23 April 1964, which entered from the High Court of Tanzania, into force as the result of Tanganyika whereas the latter has jurisdiction over merging with Zanzibar to form one the mainland only. In addition Zanzibar sovereign and independent state on 26 has its own president known as the Pres- April 1964. Apart from forming the ident of the Revolutionary Government 4 legal basis for the Union, the Articles of of Zanzibar and several non-union Union also made the declaration of the bodies such as the Electoral Commis- United Republic. The name ‘United sion of Zanzibar, amongst others. Laws Republic of Tanganyika and Zanzibar’ enacted by the legislature of the United was later changed to United Republic of Republic of Tanzanian over Union Tanzania by the United Republic matters, usually sitting in Dodoma in (Declaration of Name) Act of 1964.1 the Tanganyika territory, must be rati- fied by the House of Representatives of Tanganyika attained its independ- Zanzibar to be operational in Zanzibar. ence from British rule on 9 December Thus, between Tanganyika and Zanzi- 1961 whereas Zanzibar became inde- bar, each party to the Union has its own pendent as a result of a revolution which history in relation to the introduction of human rights through the bill of rights operating in the constitutions of each state party to the Union. * LL.B (Hons, Dar), LLM HRDA (Pretoria), PhD (Dar), lecturer and Head of the Department of General Studies (law, development studies and communications skills), Institute of Finance Management (IFM), Dar es Salam. ** LL.B (Mzumbe), LLM HRDA (Pretoria), Principal State Attorney, Ministry of 2 Art 102(1) of the Constitution of the United Constitutional and Legal Affairs, Das es Republic of Tanzania (the Constitution). Salam. 3 Art 106(1)-(3) of the Constitution. 1 The Declaration of Name Act 61 of 1964. 4 Art 103(1) of the Constitution.
249 250 Tanzania
Tanzania mainland introduced the and the Village Land Act of 1999. These Bill of Rights into its Constitution of land laws provide for the equal rights of 1977 in 1984. Nevertheless, the imple- women and men to access land without mentation of the Bill of Rights in Tanza- any kind of discrimination. nia mainland was delayed for two years for what was alleged by the government There are other laws that uphold as allowing the government to put its women’s rights in accordance with the house in order in preparation of compli- African Charter and the Maputo Proto- ance with the Bill of Rights. Yet, in the col such as the Employment and Labour year 1986 when the Bill of Rights Relations Act of 2004. This law prohib- became operational in Tanzania, the its discrimination on the basis of several legal framework was not ready to let grounds including sex, pregnancy, fami- Tanzanians enjoy civil, political, ly responsibilities and marital status, economic, social and cultural rights and amongst others. It also protects women freedoms contained in the instrument. against termination of employment on Currently, cultural and economic rights grounds related to pregnancy or taking are generally not justiciable in Tanza- maternity leave. The Law of Marriage nia.5 The Bill of Rights runs from article Act of 1971 provides for the right of 12 of the Constitution through to article division of matrimonial properties upon 30. The rights which are guaranteed and divorce. The Penal Code and Sexual justiciable under the Tanzanian Consti- Offences Special Provisions (SOSPA) of tution are as follows: equality of human 1998 prohibit Female Genital Mutila- beings, equality before the law, the right tion and create offences that can gener- to life, the right to personal freedom, the ally be used by women who undergo right to privacy and personal security, physical violence by their spouses. In the right to freedom of movement, right addition, the Constitution in article 13 to freedom of conscience, right to free- provides for equality of all before the dom of expression, right to freedom of law. religion, freedom of association, free- dom to participate in public affairs, the Despite progressive provisions right to work, right to just remuneration contained in the current Constitution of and the right to own property. 1977, the National Land Policy of 1995 specifically provides that clan land shall With respect to women’s rights, the continue to be governed by customary Constitution of Tanzania provides in its law. The Land Act does not directly article 13 for the equality clause. Article deal with issues of inheritance. Conse- 13(6) prohibits discrimination including quently, the Customary Law Declara- on the ground of sex. Many other laws tion Order of 1963 which discriminates and court pronouncements protect the against women in relation to inheritance rights of women to equality. Such legis- is still operative in Tanzania, contrary to lation includes the Land Act of 1999 the provisions of the Constitution.
2 Ratification of African Charter 5 Only a few ones such as education and to certain extent, the right to health, which is and the Maputo Protocol enforced through the window of the right to life, are justiciable. See GK Kazoba Consumer protection and a guard against counterfeit and Tanzania ratified the African Charter on substandard pharmaceuticals in Tanzania: 18 February 1984. This was preceded by Examining legal and institutional frameworks (2013) 217. the signing of the Charter on 31 May Impact of the African Charter and the Maputo Protocol in selected African states 251
1982. Tanzania signed and ratified the sibilities under the African Charter and Maputo Protocol on 5 November 2003 Maputo Protocol. However, there are and 3 March 2007, respectively. The always overlapping mandates across Maputo Protocol was ratified without different ministries such the Ministry for any reservations despite a heated debate Gender, Community Development, and in the parliament of the United Republic Children. The Ministry for Gender, of Tanzania when the instruments of Community Development and Children ratification were presented for ratifica- is responsible for matters concerning tion. The instruments of ratification women as well as civil society organisa- were deposited on 7 May 2007. tions which are significant stakeholders in the protection of the rights of women. There are no specific reasons that Thus, even though it is the Human can be clearly pointed out as to why Rights Department of the Ministry of Tanzania decided to ratify the two Constitutional and Legal Affairs and the instruments. There is no specific law in Attorney Generals’ Chambers which Tanzania that clarifies the procedure for has the overall mandate to oversee and ratification of international instruments. report on human rights situations, Article 63(3) of the Constitution simply including the rights of women in Tanza- provides as follows: nia, there are other bodies that deal with human rights monitoring, protection For the purposes of discharging its and promotion. Apart from the Ministry functions, the National Assembly may: enact law where implementation requires of Gender, Community Development legislation; deliberate upon and ratify all and Children, there is also the Commis- treaties and agreements to which the sion for Human Rights and Good United Republic is a party and the Governance (CHRAGG) which is provisions of which require ratification. established under the Constitution of the Thus, ratification of international instru- United Republic of Tanzania. ments falls within the ordinary powers Even though the Ministry of Consti- and functions of the National Assembly. tutional and Legal Affairs has the over- In that context, the instruments of ratifi- all responsibility concerning human cation are presented by the minister rights matters in Tanzania, it cannot be responsible to the Parliament for discus- ignored that combining human rights sion and possible ratification.6 matters under one ministry regardless of their unique nature may compromise 3 Government focal points the attention given to certain specific issues. For instance, during the parlia- The Ministry for Constitutional and mentary debate that preceded ratifica- Legal Affairs is responsible for imple- tion of the Maputo Protocol, there were mentation of all international human several resentful statements to certain rights obligations especially in mainland provisions of the Maputo Protocol such Tanzania, as human right are not a as those on reproductive health. This Union matter. The Division of Constitu- could be due to the fact that the Minis- tional Affairs and Human Rights in the try introducing the instrument was not Attorney General’s Chambers is respon- necessarily prepared to explain the sible for the state’s response and respon- rationale behind such provisions as it deals with law, constitutional and legal 6 Interview with Deputy Minister for Foreign Affairs on 4 November 2015. 252 Tanzania rights generally rather than the rights of hold the opposite view. The justice women. explained that if Tanzania has signed a Convention, courts will apply it unless the Indeed, the fact that human rights country entered some reservation in accordance with international law accountability mandates of Tanzania procedures. That is only to the extent of the are spread between different govern- reservations that the courts will not apply ment departments creates difficulties to the Convention in local courts.7 those in need of following up human Such an approach can be found also in rights issues in Tanzania. However, it is 8 the Division of Constitutional Affairs the case of Bernado v Holaria Pastory, and Human Rights of the Attorney where the Court addressed a customary Generals’ Chambers that has a mandate law rule which barred women from for Tanzania’s responsibilities in rela- inheriting clan land. The High Court of Tanzania relied on the general equality tion to the African Charter and the 9 Maputo Protocol. provision of the Constitution to annul the customary rule. In arriving at that conclusion, the Court used the ‘equality 4 Domestication or incorporation before the law’ provision of the Consti- tution to hold that the discriminatory Tanzania is a dualist country. By virtue rule had to accord with human rights of article 63(3) of the Constitution, inter- norms of equality and non-discrimina- national law must be domesticated after tion enshrined in various international ratification before it can be applied as a human rights instruments that Tanzania law by courts in Tanzania. Thus, the had signed and ratified such as African Charter and the Maputo Proto- CEDAW and the African Charter. The col having been ratified by Tanzania are Court noted that: ‘the principles enunci- generally speaking only persuasive legal ated in these documents [international instruments until domesticated or incor- conventions] are standards below which porated into Tanzanian statutes. In any civilized state will be ashamed to terms of hierarchy of laws, the Constitu- fall’.10 tion comes first, followed by national legislation. The African Charter and the The Land Act contains a clause to Maputo Protocol are only persuasive the effect that in circumstances where sources of law in Tanzania. land is in issue, the provisions of the Land Act 113 of 2002 shall prevail. The However, one could argue that such Village Land Act established institutions an approach of interpretation of impact such as Village Land Committees with a of article 63(3) of the Constitution is minimum requirement of women in the merely academic. It all depends on the presiding judge as to whether he or she 7 Kazoba (n 5 above) 133. will accept the legal persuasion to lead 8 (1990) LRC 757. him to a conclusion which aligns itself 9 Since the non-discrimination provision in the Constitution did not then prohibit to international law or not. discrimination on the basis of sex and gender. As Kazoba asserts: 10 See also Transport Equipment & Reginald John Nolan v Devram Valambbia Appeal Case No 19 of 1993 (Ramadhan JA) (unreported), The justice argued that even though where it was held that international politicians would like to argue that once a agreements and conventions signed and ratified by the Tanzanian government are convention has not been domesticated it is valid undertakings and that the government not applicable in local courts, courts will is bound by its commitments to others. Impact of the African Charter and the Maputo Protocol in selected African states 253 composition, failing which the Commit- Act of 2004 and the Law of Marriage tee cannot operate. Act of 2002 also have components of maintenance, the right to own property, The Constitution does not include and equality in relation to division of socio-economic rights which are provid- matrimonial property upon divorce. The ed by the African Charter and the employment law protects women Maputo Protocol. The only socio- against discrimination on various economic right that can be found under grounds such as pregnancy, marital the Tanzanian Bill of Rights is the right status, and family responsibilities. Also, to education. However, the proposed a woman is entitled to resume work on constitution contains some socio-econ- the same terms as she enjoyed before mic rights in clear terms in particular the taking maternity leave, failure of which right to health. it will be regarded as unfair termination of employment. There are other protec- Despite the fact that Tanzania intro- tions relevant to reproductive health duced the Bill of Rights in 1984, it is not rights in the employment law such as clear whether there is any relationship the right to maternity leave; not working between the African Charter and the within six weeks of confinement; and 1984 Bill of Rights. It cannot be ignored not working at night during pregnancy, however that the signing of the African amongst others. Although the African Charter might have contributed towards Charter and the Maputo Protocol are accelerating the introduction of the Bill not directly domesticated, there are of Rights into the Union Constitution some provisions of these instruments given the level of awareness that was which have been incorporated into created in Tanzania when the African national laws and hence attained Charter was adopted. For instance, in 11 complete legal force. However, these Ephraim v Holaria Pastory, Justice national laws do not specifically refer to Mwalusanya referred to the African the African Charter or the Maputo Charter. However, the provisions of the Protocol. Maputo Protocol are still not incorpo- rated into Tanzanian law. 5 Legislative and policy reform In relation to civil and political rights, Tanzania complies with the Afri- There is no report to the effect that a can Charter and the Maputo Protocol specifically targeted study was conduct- by incorporating these rights in its ed in Tanzania to assess compatibility of Constitution and national legislation. domestic law with provisions of the The only difference would be the extent African Charter or the Maputo Protocol of protection. For instance, the Land before ratifying these instruments. Even Act of 1999 provides for equal rights of if there was such a compatibility study, women as for men in acquiring property no serious action was taken to harmo- with the exception of clan land which nise international law with domestic usually changes title by way of inher- laws in Tanzania. However, in 1992, itance. Women, though they can inherit the Nyalali Commission identified 40 cannot do so on a similar basis as men. pieces of legislation that were not The Employment and Labour Relations compatible with international human rights standards. The Commission was
11 (2001) AHRLR 236 (TzHC 1990). 254 Tanzania originally set up to advise government Maputo Protocol but their content on multi-partism. implicitly advances the realisation of various rights enshrined in these docu- The ratification of the Maputo ments such as: the Tanzania Develop- Protocol in 2009 was not preceded by ment Vision 2025,14 Tanzania Five any specific study to assess the readiness Year Development Plan,15 and the of the Tanzanian legal framework to National Strategy for Growth and adhere to international human rights Reduction of Poverty II.16 These docu- obligations that Tanzania had commit- ments have set out general goals to ted itself to. That is why laws such as improve good governance, rule of law, the Customary Law Declaration order human rights and the realisation of and provisions of the Law of Marriage social and economic rights in the coun- Act on bride price still exist. Although try. They also address issues of reduc- no legislation has been enacted or tion of HIV and AIDS, improving amended in Tanzania to specifically health care services and the protection give effect to the African Charter or the of PLHIV,17 as a result giving life to the Maputo Protocol, some plans and poli- rights enshrined in the African Charter cies reflect the rights and norms estab- and the Maputo Protocol. lished by these instruments, as detailed below. The adoption of the National Land Policy (NLP) in 1995 was the turning Several policies and strategies have point for women’s rights to own land in been formulated explicitly to give effect the country. The policy aims to promote to the African Charter, Maputo Protocol the equitable distribution of land as well and other human rights instruments in as provide all citizens with access to Africa. Examples of such policies land.18 The NLP specifically describes include the Child Justice Strategy (A the conditions in which women find Five year Strategy for Progressive themselves regarding land ownership Reform 2013-2017),12 and the National Human Rights Action Plan.13 Other policies adopted at national and institu- tional levels have not explicitly 13 in four thematic headings, as priorities for improving coordination and protection mentioned the African Charter or the throughout Tanzania. The NHRAP strengthens a Human Rights Based Approach (HRBA) in existing national 12 Developed by the Ministry of Constitutional policies and strategies, including and Legal Affairs in 2013, it aims at MKUKUTA, MKUZA, the MDGs, Vision providing a framework for reforms within 2025, Five Year Development Plan spanning which relevant MDSs and CSOs can shape from 2011/12 to 2015/2016, and existing their child justice related activities, to ensure action plans of other Ministerial that everyone is moving in the same Departments and Agencies (MDAs). The direction to achieve a common vision of the Plan establishes a comprehensive system for child justice system. The reform process is implementation, monitoring and evaluation. framed by key principles enshrined in the 14 Adopted by the Planning Commission of the UN Convention on the Rights of the Child, President’s Office. the African Charter on the Rights and 15 2011/2012-2015/2018 adopted by the Welfare of the Child and other international Planning Commission of President’s Office Instruments. in 2012. 13 The National Human Rights Action Plan 16 2010/11-2014/2015 also famously known as 2013-2017 was adopted by the Ministry of MKUKUTA. Constitutional and Legal Affairs. The 17 The Tanzania Five Year Development Plan NHRAP recognises that the protection and includes a target to ‘increase and strengthen promotion of human rights is not limited to a services for care and treatment of people single topic, sector, government ministries, living with HIV/AIDS to reach 800,000 by departments or agency. The plan identifies 2015/16’. twenty three human rights issues, arranged 18 The National Land Policy (1997) 5 & 12. Impact of the African Charter and the Maputo Protocol in selected African states 255 and aims to cure the situation.19 The Plan to guide the country’s multi-secto- NLP influenced the process of land law rial response to the epidemic.23 The reform which resulted in the Land Act National HIV and AIDS Policy (2012) of 1999 and the Village Land Act. In a further emphasised the importance of combined way, these provisions provide respect for the human rights of PLHIV a framework that is favourable to and Health Sector HIV and AIDS Stra- women, giving them access, ownership, tegic Plan (HSHSP 2013-2017), a subset and decision-making power, and thus of both the Health Sector Strategic Plan giving life to the rights enshrined in the III and the National Multi-sector Strate- African Charter and the Maputo Proto- gic Plan III addresses issues of HIV/ col. AIDS.
The government has also taken Although many policies do not steps to advance issues of gender,20 and explicitly mention the African Charter to eradicate FGM and alleviate GBV by or the Maputo Protocol, they reflect not adopting policies, strategies and plans of only the spirit of these documents but action.21 For more than three decades, also the comments of the African Tanzania has made a concerted Commission in respect of women’s response to the HIV/AIDS epidemic, rights. These policies have laid a strong which nevertheless continues to claim foundation for the promotion and the lives of thousands of people, and protection of women’s rights in the threatens national, social, and economic country, thus fulfilling Tanzania’s obli- development.22 The Tanzania Third gations under the African Charter and National Multi-Sectorial Strategic the Maputo Protocol. Framework for HIV/AIDS was designed as a broad National Strategic 6 Court judgments
According to surveys conducted by the authors in the course of compiling this report, there are very few cases where 19 In order to enhance and guarantee women’s the African Charter, the Maputo Proto- access to land and security of tenure, women will be entitled to acquire land in their own col, case law, resolutions or general right not only through purchase but also comments of the African Commission through allocation. 20 Adoption of the Gender Policy 2000 and have been referred to as interpretive Strategic Plan on Gender 2006 has guidance in any court judgment in acknowledged the status of women participation in economic and social issues Tanzania. One of the very few cases is to be low, and through the Policy, guidelines Ephraim v Pastory.24 Additionally in the to minimize the gaps have been provided. 25 21 The National Management Guidelines for case of Elizabeth v AG, the African the Health Sector Prevention and Response to Gender Based Violence (2011), the National Strategy for Gender Development 23 The Framework calls for scaling up of the (2000), Multi Sector National Plan of Action comprehensive, national response in to Prevent and Respond to Violence Against prevention, care, treatment, and impact Children (July 2013-June 2016), National mitigation in a way that is responsive to Plan of Action for the Prevention and issues of gender. It emphasises the prevention Eradication of Violence Against Women and of new HIV infections, with a special focus Children (2001-2015) and its on women, youth and key populations at Communication Strategy (2007-2015) and higher risk of HIV. It also focuses on the the National Plan of Action to Combat necessary quality in the continuum of care Female Genital Mutilation (2001-2015). for PLHIV and stewardship for the nation’s 22 Tanzania 3rd National Multi-Sectorial most vulnerable children. Strategic Framework for HIV/AIDS 2013/ 24 (2001) AHRLR 236 (TzHC 1990). 14-2017/18 x. 25 Misc Civil Cause 82 of 2005. 256 Tanzania
Charter and the Maputo Protocol were col were referred to on a number of referred to by the civil society organisa- occasions by the committee.28 tions that represented the applicant widows but given the path the court In addition to the above, Tanzanian took which ignored not only interna- civil society organisations supported the tional human rights instruments but also applicant in the Independent Candidate 29 the Constitution of Tanzania, the instru- case, which was decided by the Afri- ments were not considered and hence can Court. During the hearing of the did not positively influence the outcome case, they made references to several of the cases. provisions of the African Charter such as the right to participate in public 30 7 Awareness and use by civil affairs under article 13(1). society According to the website of the Afri- can Commission, there are five Tanza- There is a wide range of awareness of nia-based NGOs that have observer the African Charter and the Maputo status with the African Commission.31 Protocol amongst civil society organisa- tions in Tanzania. For instance, the The African Charter and the Mapu- position paper on mainstreaming gender to Protocol are widely known amongst in constitution-making in Tanzania that lawyers in Tanzania especially those was prepared by the Gender Forum, a who organise themselves through civil coalition of civil society organisations society organisations. For instance, in advocating positive gender provisions in the constitutional review discussions the proposed constitution, used interna- referred to above, the forums were tional human rights provisions as an composed mainly of lawyers and they advocacy tool in addition to constitu- organised meetings as professionals. tional provisions of other countries such Also, in the Elizabeth case, civil society as South Africa and Kenya to advocate organisations referred to several provi- for gender mainstreaming in constitu- sions of the African Charter. However, 26 tion-making. the high court did not pay adequate attention to those provisions. Also, during the same exercise of constitutional review, a special commit- 8 Higher Education and academic tee on the Constitution that was coordi- nated by the Legal and Human Rights writing Centre (LHRC)27 and composed of national and international experts of Higher education curricula and academ- constitutional law and constitutional ic writing in Tanzania refer to the Afri- matters, members of civil society organi- can Charter. For instance, Mzumbe sations, academics with a duty to moni- University, Tumaini University and tor, assess, inform public opinion and Ruaha University College have human engage politicians on the constitutional 28 One of the authors also happened to be a review processes and developments, the member of the Committee. African Charter and the Maputo Proto- 29 Attorney General v Rev Christopher Mtikila Civil Appeal 45 of 2009. 30 See Mtikila v Tanzania Applications 009/ 26 One of the authors of this paper happened to 2011 and 011/2011, Judgment of 14 June be the consultant. 2013. 27 A national NGO dealing with protection and 31 http://www.achpr.org/network/ngo/ promotion of human rights in Tanzania. (accessed 16 November 2015). Impact of the African Charter and the Maputo Protocol in selected African states 257 rights courses at both undergraduate affiliate status by the African Commis- and postgraduate levels. Also, the sion.35 As a NHRI with an affiliate University of Dar es Salaam established status, CHRAGG is required to assist its Master of Laws (LLM) Programmes the African Commission in the promo- in 2013, of which one on procedure tion and protection of human rights at before international judicial bodies national level and submit reports to the which refers to and discusses issues Commission every two years on its under the African Charter and the activities towards the promotion and Maputo Protocol. Several academics protection of the rights enshrined in the write published papers which make African Charter.36 In fulfilling its affili- references to the African Charter and ate status obligation to the African the Maputo Protocol.32 Some of these Commission, CHRAGG makes direct works advocate for the protection of reference to the African Charter and the socio-economic rights in the Constitu- Maputo Protocol in its programmes and tion with particular reference to when exercising its mandate to promote women’s right to health, maternity and protect human rights in the country. issues and rights to work. At the national level, CHRAGG is 9 National human rights involved in the preparation and submis- institutions sion of state reports to the African Commission in cooperation with other stakeholders.37 It was involved in the The Commission for Human Rights and preparation and submission of the Good Governance (CHRAGG) was combined 2nd-10th report. CHRAGG established under article 129(1) of the undertakes follow up of concluding 1977 Constitution, and the Commission observations and recommendations of for Human Rights and Good Govern- the African Commission. For example, ance Act of 2001. It is an independent CHRAGG has made formal communi- government department established to cation to the government by urging it to oversee the promotion and protection of ratify the Convention against Torture human rights and good governance in and Other Cruel, Inhuman and Degrad- the country.33 It is one of the NHRIs in ing Treatment or Punishment (CAT), as Africa established in accordance with a way of implementing the recommen- the Paris Principles34 and granted dations of the African Commission and other international bodies.
32 See for instance, GK Kazoba 'Justiciability of At various occasions, CHRAGG the right to health in Tanzania and women’s has urged the government to consider access to health care: Lessons from India, Kenya and South Africa' in GD Mjema & GE Kaganda (eds) Socio-Economic Development in Tanzania: A Multidisciplinary 35 ACHPR/Res.31(XXIV) 98 Resolution on Perspective (2014); GK Kazoba ‘Promoting a granting of Observer Status to NHRI in balance between economic development and Africa, 1998. protection of maternity rights at work places in 36 Art 4(b) & (c) of ACHPR/Res.31(XXIV) 98. Tanzania’ in GD Mjema & GE Kaganda 37 This is done in compliance of Principle 3(d) (eds) Socio-Economic Dynamics in Tanzania: of the Paris Principles which requires NHRI Lessons and experiences (2015); CJ Mmbando to contribute to the reports which states are ‘The protocol on the rights of women in required to submit to United Nations bodies Africa: A tool to women rights protection in and committees, and to regional institutions, Tanzania’ (2014) 3 TUMA LAW Review 16. pursuant to their treaty obligations and, 33 Art 130(1) of the Constitution. where necessary, to express an opinion on 34 Adopted by UNGA Resolution 48/134 of 20 the subject, with due respect for their December 1993. independence. 258 Tanzania the abolition of the death penalty, dinates stakeholders in the submission corporal punishment and has conducted and presentation of the state report.39 public sensitisation programmes on those issues. On the issue of indigenous A total of two reports under the people for instance, CHRAGG has African Charter have been submitted to 40 continued to engage with the govern- the African Commission by Tanzania. ment and other stakeholders at various The first report was submitted on levels on the recognition and implemen- 1 January 1992 during the 11th ordinary 41 tation of indigenous peoples’ rights.38 session of the Commission. A compi- Despite the fact that on these two issues lation of the 2nd to 10th consolidated CHRAGG has not received positive periodic reports was due in 2006. With action from the government, its follow permission of the African Commission, up efforts have helped the government the report was submitted, and consid- implement other recommendations of ered at the 43rd ordinary session of the 42 the African Commission. Commission in 2008. It is important to note that the 2nd to 10th Consolidat- 10 State reporting ed Report could not be submitted on time due to a lack of specific institution- al mechanisms for coordinating and The obligation of the state to report to preparing the report.43 the African Commission as per article The preparation 62 of the African Charter is mandated to of these reports was participatory in the Division of Constitutional Affairs nature; it involved stakeholders such as and Human Rights in the Attorney civil society organisations, government General’s Chambers. The Division is ministries, CHRAGG, NGOs, political parties and the United Nations Develop- the focal point on issues of the obliga- 44 tion of the state in terms of the African ment Programme (UNDP). The coun- Charter and other human rights treaties try’s delegation at the 43rd ordinary and bodies. It coordinates state and non- session of the Commission was led by state actors from Tanzania Mainland the Minister for Justice and Constitu- and Zanzibar in the preparation of the tional Affairs, accompanied by repre- state report. The division prepares consultation meetings, shares issues 39 An interview with Nkasori Sarakikya, Assistant Director, Division of with stakeholders, collects inputs, Constitutional Affairs and Human Rights at compiles a report and conducts a valida- the Attorney Generals Chambers (21 August 2015). tion meeting of the report. It also coor- 40 There is an outstanding four reports. See http://www.achpr.org/states/ (accessed 11 August 2015). 41 This covers the period 1984 to 1992. See http://www.achpr.org/states/tanzania/rep orts/1st-1984-1992/ (accessed 10 August 2015). 42 This covers the period 1992 to 2006 http:// www.achpr.org/states/tanzania/reports/2to 38 In September 2014, CHRAGG convened a 10-1992-2008/ (accessed 10 August 2015). national stakeholders meeting involving 43 The 2nd-10th Consolidated Periodic Report government representatives and civil society submitted by the United Republic of actors. In June 2015, CHRAGG held a Tanzania under the African Charter (2008) sensitisation seminar for members of 2. parliament. In July 2015, it convened Local 44 Concluding Observation and Recommen- Government Authorities from eight districts dations on the Consolidated 2nd-10th where indigenous people reside. This went Periodic Report of United Republic of hand in hand with a field visit to Yaeda Tanzania (2008) 2 http://www.achpr.org/ Chini in Mbulu district to assess the situation states/tanzania/reports/2to10-1992-2008/ of the Hadzabe community. (accessed 10 August 2015). Impact of the African Charter and the Maputo Protocol in selected African states 259 sentatives from government ministries, To ensure that these recommenda- civil society organisations and tions are owned by all stakeholders and CHRAGG. ultimately implemented, the govern- ment through the Attorney General’s The 43rd ordinary session resulted Chambers has conducted dissemination into a number of Concluding Observa- workshops of the concluding observa- tions which give account of the positive tions to stakeholders and has at various aspects, factors restricting enjoyment of occasions done the same with the rights guaranteed under the African public. Despite such efforts, this is an Charter and areas of concern identified area that is faced with challenges in its 45 in the report. Amongst the pertinent implementation. Dissemination of the Concluding Observations is the call for concluding observation to stakeholders the government to work closely with and citizens invites budgetary aspects, NGOs, civil society organisations and getting enough budgetary allocation for other human rights actors to ensure this has posed a challenge for effective enjoyment of the rights and freedoms in implementation. the Charter;46 provide CHRAGG with adequate financial, human and material 11 Communications resources;47 domesticate the African Charter and other international human To date, the African Commission has rights instruments ratified by the coun- received seven communications against try;48 formulate laws to penalise domes- 49 Tanzania filed by civil society organisa- tic violence; enact legislation on HIV/ tions on behalf of individuals and by AIDS and establish National AIDS individuals themselves.52 Out of these Control Commission;50 and authorise communications, three were declared the African Commission to undertake inadmissible;53 in two communications missions in the country.51 Tanzania was not found in violation;54 in one communication Tanzania was found in violation of article 7(1)(a) of the Charter;55 and one was closed.56 45 Concluding Observations and Recommen- dations (n 44 above) 1&2. These communications have not had 46 The government has continued to engage much exposure in the country apart with various NGOs especially those granted observer status by the Commission. from paving a way for individuals and 47 The Commission operates both in Zanzibar NGOs to use the jurisprudence of the and Tanzania Mainland. 48 Evidenced by enactment of the Law of the Child Act 21 of 2009, the Persons with 52 http://www.achpr.org/states/tanzania/ Disabilities Act 9 of 2010 and the Anti- (accessed 10 August 2015). Trafficking in Persons Act 6 of 2008. 53 Communication 333/06 Southern Africa 49 Implemented through the Penal Code CAP Human Rights NGO Network and Others v 16. Tanzania; Communication 53/91_8AR 50 The HIV/AIDS (Prevention and Control) Alberto Capitao v Tanzania; Communication Act 28 of 2008, establishment of Tanzania’s 53/90_7AR Albert T Capitao/Tanzania. Commission for AIDS through Act 22 54 See Communication 409/12 Luke Munyandu of2001. Tembani and Benjamin John Freeth (represented 51 In October 2008, a mission was undertaken by Norman Tjombe) v Angola and Thirteen to Tanzania by Commissioner Mumba Others; Communication 157/96 Association Malila, member of the African Commission pour la saauvegarde de la paix au Burundi/ responsible for the promotion and protection Kenya, Uganda, Rwanda, Tanzania, Zaire of human rights in the United Republic of (DRC) and Zambia. Tanzania, and the African Commission’s 55 See Communication 243/01 Women Legal Special Rapporteur on Prisons and Aid Centre (On behalf of Sophia Moto) v Conditions of Detention in Africa. See http:/ Tanzania. /www.achpr.org/states/tanzania/missions/ 56 See Communication 66/92 Lawyers’ promo-2008/ (accessed 10 August 2015). Committee for Human Rights v Tanzania. 260 Tanzania
African Commission in situation of Commissioner Mumba Malila in violations. 2008.59 This mission intended amongst others to promote the African Charter With regard to cases before the Afri- and the activities of the African can Court, the first judgment against Commission; engage the government on Tanzania was in the case of Mtikila v measures it is taking or has taken to Tanzania referred to elsewhere in this implement its international human report, Tanzania was found in violation rights obligations and its obligations of the African Charter especially the under the African Charter; exchange article providing for freedom of associa- views with the government on the chal- tion as its constitution prohibited a lenges it faces in fulfilling its internation- possibility of an independent candidate al and regional human rights obligations from vying for any elective position in and the extent to which the African 57 Tanzania. So far, Tanzania has not Commission can assist; and exchange done anything to implement the deci- views with other human rights stake- sion of the African Court. The only holders on ways and means of promot- attempt that has been so far made was ing and protecting human rights in the to include the right of an independent country.60 candidate to stand for election in the proposed new constitution. However, The Commission gave out a number since the constitutional review process of recommendations to the government has been suspended for the time being, that range from ratifying outstanding realisation of the remedy ordered by the human rights instruments;61 improving African Court is still illusive in Tanza- prison conditions;62 improving the nia.
12 Special mechanisms and promotional visits of the African Commission
59 Member of the African Commission The Commission undertook its first responsible for the promotion and protection promotional mission to Tanzania in of human rights in the United Republic of Tanzania and the African Commission’s 2000 through Commissioner Vera Special Rapporteur on Prisons and Mlanguzwa Chirwa. The report of the Conditions of Detention in Africa. 60 http://www.achpr.org/states/tanzania/miss mission was presented at the 28th ordi- ions/promo-2008/ (accessed 27 November nary session of the Commission in 2015). 58 61 Tanzania has ratified African Youth Charter 2000. It has been difficult for the in 2013. researchers to get details of this visit. 62 Enactment of Community Service Act CAP 291, the National Parole Board Act CAP This is because only the French version 400, National Prosecutions Service Act 8 of of the mission report is published on the 2008 and the establishment of Criminal Justice Forum have been collectively used to Commission’s website. The second reduce congestion in prisons. The promotional mission was undertaken by government has bought 17 buses, the LSRF has bought 14 buses which all together have been distributed across the country to 57 An independent candidate is a Tanzanian facilitate movement of inmates to attend who is not a member of any political party, court sessions and thus facilitate disposal of but aspires to contest for a political office in cases. The government has built 12 health Tanzania. centres in central prisons. Measures to 58 http://www.achpr.org/states/tanzania/miss rehabilitate latrines, improve ventilation, and ions/promo-2000/ (accessed 11 August access to information have also been taken to 2015). improve conditions of prisons. Impact of the African Charter and the Maputo Protocol in selected African states 261 working of the judiciary and appoint- purpose of raising awareness on the ment of judges;63 equipping the problems and challenges that indigenous Commission for Human Rights and people are facing in attaining their rights Good Governance with adequate and freedoms. resources and collaboration with it in sensitisation programmes. It is well known that the concept of indigenous peoples remains a conten- These promotional visits have tious issue in Tanzania. The official helped to bring the Commission, the position of the government is that the government and other stakeholders on term ‘indigenous people’ is not applica- the same page with regard to Tanzania’s ble, as all Tanzanians of African descent obligations under the African Charter. are indigenous to Tanzania. The The recommendations have made the government acknowledges that there are government put greater effort into special groups which need special improving human rights situations in protection within the country and has the country in the areas recommended taken various measures to provide polit- and other areas not touched on by the ical, social and cultural amenities to visits. such groups.65 What is clear is that the visit increased awareness about the Afri- Between 21 January and 6 February can Charter, the Maputo Protocol and 2013, the Working Group on Indige- the work of the Commission and nous Population/Communities in Afri- improved the Commission’s engage- ca (WGIP) led by Dr Naomi Kipuri and ment with the government and other Dr Abraham Sing’Oei Korir visited stakeholders on human rights in the Tanzania. The aim of the visit by the country. WGIP was to undertake research, gath- er information and examine steps taken 13 Factors that may impede or by the government towards the recogni- enhance the impact of the tion, promotion and protection of the African Charter, the Maputo rights of indigenous peoples.64 The WGIP met with various government Protocol and the African officials, higher learning institutions, Commission civil society organisations, indigenous communities in Manyara, Arusha and A strong Bar and Bench in the country Morogoro and the media for the provides an opportunity for advancing the African Charter, the Maputo Proto- col and the work of the Commission. 63 The enactment of Judiciary Administration Act 4 of 2011 and the establishment of The Commission has so far generated Judiciary Fund have brought significant jurisprudence in various areas that are changes in the working of the Judiciary. The number of justices of Appeal Court has left open to both the bench and bar to increased from nine in 2005 to 16 in 2015. utilise by making reference to them. The Judges of the High Court have increased from 35 in 2005 to 84 in 2015 and the spirit of the bench and bar to make refer- number of magistrates has increased from ence to these norms will also be fuelled 151 in 2005 to 670 in 2015 http://www. judiciary.go.tz/index.php?option=com_con if law schools and law faculties include tent&view=article&id=217:mahakama-yam uaga-rais-wa-jamhuri-ya-muungano-wa-tanz ania&catid=1:latest&Itemid=124 (accessed 65 National report submitted in accordance 12 August 2015). with paragraph 15(a) of the annex to Human 64 A Letter from Ministry of Foreign Affairs Rights Council resolution 5/1 ‒ United and International Cooperation Ref: No. Republic of Tanzania A/HRC/WG.6/12/ CHD 87/738/01/90, 20 January 2013. TZA/1 11. 262 Tanzania modules on the African human rights African Charter, Maputo Protocol and system with specific attention to the the work of the Commission in the spot- African Charter and Maputo Protocol in light of their reports, writings and their curriculums. programmes. Undoubtedly, this is a result of lack of training and knowledge The adoption of the Proposed of key issues. It is the duty of civil socie- Constitution provides a great opportuni- ty organisations to bridge the knowledge ty for advancing the rights in the African gap in media houses by engaging them 66 Charter and the Maputo Protocol. effectively. This is because the scope of the rights enshrined in the current Constitution The existence of negative cultural have been widened.67 Unlike the current practices in the country continues to Constitution, the proposed constitution defeat the full realisation of women's has put an obligation on the courts to rights as enshrined in the Maputo Proto- consider international human rights col. Practices such as FGM, domestic instruments while interpreting the Bill of and gender-based violence still need Rights.68 special attention by all players on human rights. The CHRAGG, with its newly appointed Chairman Tom Nyanduga, a Reporting obligations in other former member of the African Commis- human rights instruments also pose a sion, and NGOs with and without challenge to the state to fulfil its obliga- observer status with the African tion under the African Charter and the Commission can play an instrumental Maputo Protocol. The report timing in role in advancing the work of the many instruments collides; as a result it Commission in Tanzania. This can be brings to bear budgetary implications done by integrating the African Charter, and a work load that has posed to be a Maputo Protocol and work of the challenge to the country. Commission in their programmes. It is important to have coordination amongst various players to enable working together and sharing experience.69
Much as they are major players in exposing human rights violations in the country, the press has not placed the
66 The proposed constitution was passed on 4 October 2014 by the Constituent assembly and it awaits adoption through a referendum to be scheduled any time. 67 Unlike the current Constitution, the proposed constitution provides for special group rights such as, the rights of employers and employees (art 45); rights of farmers, pastoralists and fishers (art 46); children’s rights (art 53); youth rights (art 54); rights of disabled persons (art 55); women’s rights (art 57); rights of elderly people (art 58); socio- economic rights such as right to health (art 51); the right to education (art 52); and the right to a clean environment (art 50). 68 Article 65(1)(a) of the proposed constitution. 69 Mmbando (n 32 above). THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN UGANDA
Agaba Daphine Kabagambe*
1 Introduction achievement of good governance and human rights principles. To this end, the Uganda’s human rights history has been NRM government went about putting in as tumultuous as its political history. place democratic institutions, most of The various political leaders that she has which had been destroyed during the had since attaining independence in five year NRA guerrilla war. One of the 1962 have often come into power with first steps taken was the drafting of a the promise of improving the human constitution which commentators have rights situation. However, like their commended for being one of the most predecessors, they have often ended up participatory constitutions anywhere. forgetting about their promises as soon This is due to the fact that committees as they entrench themselves in power. were set up in all regions of Uganda, Since acquiring independence, Uganda aimed at soliciting people’s views of has gone through one military regime what they wanted to appear in the 2 after another and each regime has been constitution. As a result, a very forcefully taken over through coups or progressive constitution was drafted wars aimed at regime change. These with an elaborate chapter four reserved periods of instability have greatly affect- to fundamental human rights and free- ed the extent to which the various doms. The constitution put in place regimes observe and adhere to human institutions mandated to uphold and rights protections. protect human rights, such as the judici- ary, the parliament and the Ugandan When the National Resistance Human Rights Commission.3 In show- Movement (NRM) government came ing its compliance with human rights into power in 1986,1 it held so much principles, the Ugandan government promise for transforming Uganda into a signed and ratified all the core interna- democratic country committed to the
2 came into power in 1986 after five years of armed resistance against the Obote government that culminated into his * LLM HRDA (Pretoria), doctoral candidate, deposition by way of a military coup. the Dullar Omar Institute, University of the 2 O Furley & J Katalikawe ‘Constitutional Western Cape. reform in Uganda: The new approach’ 1 The National Resistance Movement (NRM) (1997) 96 African Affairs 243 252-256. was coined from the National Resistance 3 The Constitution of the Republic of Uganda, Army (NRA) led by Yoweri Museveni which 1995.
263 264 Uganda tional human rights treaties including out provisions protecting women’s the African Charter and the Maputo rights. Such policies have been favoura- Protocol.4 ble to women allowing for their inclu- sion in parliament and in local councils One of the most notable contribu- through the quota system. Again, tors to ensuring that the government affirmative action measures have been adheres to the promotion and protection undertaken to uplift the status of girls of human rights are human rights organ- and women including those who come isations. Over the last 20 years, there from disadvantaged backgrounds, in has been a proliferation of both national education and employment.5 Further- and international human rights organi- more, women were comprehensively sations in Uganda. One contributing involved in the constitutional making factor to their proliferation has been the process. Such developments have uplift- stable and relatively peaceful environ- ed the economic, physical and social ment of the NRM government. status of women in Ugandan society. Amongst their achievements are: push- ing for the ratification of various inter- However, women still have a long national and regional human rights way to go before they can fully realise treaties; advocating for the incorpora- their rights. One of the major issues is tion of human rights principles in the the huge disparity amongst women in various laws, policies and programmes; the urban areas with those in the rural and presenting reports to the interna- areas. Due to the fact that over 80 per tional human rights bodies on the cent of Uganda’s population resides in human rights situation in Uganda, the rural areas,6 a very small percentage amongst others. In its first years, the of women are able to fully enjoy their NRM government seemed tolerant of rights. Thus, many women continue to divergent views. However, as it has face numerous challenges in accessing further entrenched itself (having been in health services (leading to high maternal power for more than 28 years) by and infant morbidity rates), poverty, amending the Constitution to remove lack of decision making power in their term limits, it has become less tolerant homes and in public spaces, domestic to dissenting views. This has led to the violence, lack of access to markets to curtailing of the work of non-govern- sell their produce and cultural norms mental organisations, mostly through and practices that perpetuate patriarchy restrictive legislation or limiting the kind and the subordination of women.7 of work they can do.
One of the most noteworthy achievements that the NRM has been lauded for has been the uplifting and improvement of women’s status. For 5 Art 33 of the Constitution of Uganda. example, the Constitution explicitly sets 6 The Danish Institute for Human Rights ‘Access to justice and legal aid in East Africa: A comparison of the legal aid schemes used in the region and the level of cooperation and 4 African Commission on Human and coordination between various actors’ (2011) Peoples’ Rights ‘Report of the joint 30. promotion mission undertaken to the 7 FIDH ‘Uganda becomes the 28th state party Republic of Uganda’ 25-30 August 2013, to the Maputo Protocol’ https://www.fidh. presented at the 55th Ordinary Session, held org/International-Federation-for-Human- from 28 April-12 May 2014, in Luanda Rights/Africa/uganda/Uganda-becomes- Republic of Angola. the-28th-State (accessed 25 August 2015). Impact of the African Charter and the Maputo Protocol in selected African states 265
2 Ratification of the African factions, which were in opposition to Charter and the Maputo some of the clauses in the Maputo Protocol Protocol, specifically those on abortion. Therefore, upon ratification, Uganda Uganda unreservedly ratified the Afri- entered reservations to article 14 (1)(a) can Charter on 27 May 1986.8 One of and (2)(c) of the Maputo Protocol which the motivating factors for the ratification emphasises that states shall ‘protect the of the African Charter was the political reproductive rights of women by will at the time. The timing of the Afri- approving medical abortions in instanc- can Charter can best be termed as es of rape, sexual assault, incest and ‘perfect’ timing as it was ratified in 1986 where the continuance with the preg- when the NRM government had just nancy endangers the mental and physi- cal health of the mother and the come into power. Due to the fact that 12 the new NRM government had over- foetus’. The justification for this reser- thrown what it referred to as a non- vation was that it was not in line with transparent and non-democratic regime Uganda’s laws such as the Constitution read together with the Penal Code, that was violating numerous human 13 rights, it was very eager to demonstrate which outlaws abortion. Religious internally, regionally and internationally groups which were vehemently opposed that unlike previous regimes, it was to these clauses wrote several petitions protesting their conversion into Ugan- committed to the promotion and protec- 14 tion of human rights.9 To this end, dan law. Uganda has not yet with- regional and international human rights drawn its reservation to the Maputo treaties that had not been ratified, Protocol despite recommendations from including the African Charter, were the African Commission asking Uganda readily signed and ratified as a sign that to withdraw this reservation and to the new government was ready to revise its legislation on termination of pregnancy in instances of life threaten- embrace principles of human rights, 15 transparency, democracy and good ing conditions to the mother. governance.10 3 Domestication or incorporation On the other hand, Uganda signed the Maputo Protocol on 18 December Uganda is a dualist country. Rules oper- 2003 but it was not until 22 July 2010 ating in international law are not bind- that Uganda ratified the Maputo Proto- 11 col. The delay can be attributed to 12 Statement by Mrs Hannah Forster, Executive Director, African Centre for Democracy and opposition from mostly religious Human Rights Studies and Chairperson of the NGO Forum Steering Committee, at the official opening of the 50th ordinary session 8 Concluding Observations of the African of the African Commission, 24th October Commission on the 2nd Periodic Report of 2011, The Gambia. the Republic of Uganda’ Presented at the 13 SO Orach ‘Violating human rights to protect 45th ordinary session of the African human rights ‒ What a contradiction and Commission held in Banjul, The Gambia whose agenda is it?’http://www.ucmb. from 13-27 May 2009. Full citation co.ug/files/UCMBdocs/Reports/ARTICLE 9 K Eunice ‘On the international and internal S/Violating%20human%20rights%20to%20 ratification of treaties according to protect%20human%20rights.pdf (accessed constitutional processes of the Republic of 9 December 2015). Uganda’ Organization of the study of Treaty 14 The Maputo Protocol ‘A clear and present Law 5-7 www.treatylaw.org (accessed danger: The fight against the Maputo 2 September 2015). Protocol’ Human life International (2011). 10 Eunice (n 9 above). 15 Report on the Joint promotional visit to 11 FIDH (n 7 above). Uganda (n 4 above) 60. 266 Uganda ing upon Uganda unless they are ratified Parliament through a resolution is and translated into national law.16 required.21 The parliament either Therefore, article 123 of the Uganda domesticates the treaty by adopting the Constitution, on the execution of trea- whole text as a schedule to the domesti- ties, conventions and agreements, sets cating Act or through the transforma- out that the President may make tion of the provisions of the treaty into arrangements, treaties, conventions and provisions of an act of Parliament, any other form of agreement between which in some instances are re-draft- Uganda and any international organisa- ed.22 tion or body. Furthermore, it gives parliament the power to make laws This is the process set out under setting out the ratification of treaties, Uganda’s law. However, in practice, agreements and conventions agreed to this procedure is often not followed; by the state.17 In order to dispense its some steps may be skipped or an entire- role, parliament adopted the Ratifica- ly arbitrary process might be undertak- tion of Treaties Act in 1998.18 en. For instance, to date the African Charter has not been domesticated even The focal point for treaties is the though it was ratified in 1986. However, Ministry of Foreign Affairs. The process as will be shown later, both lawyers and taken prior to the ratification of an inter- judges use the African Charter in the national treaty requires that the Ministry Ugandan courts of law.23 Furthermore, of Foreign Affairs first distributes the use of the African Charter in courts has treaty to various line ministries. The line not been uniform as in certain instances ministries then come up with a cabinet it has been used both in defining the law memo justifying their approval of the and also in limiting rights. Therefore, as ratification of that particular treaty.19 pointed out by the African Commission, Once they have approved it, the Minis- there is an urgent need for the govern- ter of Foreign Affairs ratifies the treaty ment of Uganda to uniformly imple- and then drafts a bill. The bill often sets ment the strategies of domesticating out the human rights instrument in the instruments that have been ratified by schedule thus giving it the force of the Uganda in order to ensure effective law. The bill is then taken back to the promotion and protection of human Cabinet for its approval and then it is rights.24 taken to the Parliament for its enact- ment into law.20 However, if the ratifi- cation of the treaty requires reviewing of the Constitution (where it relates to armistice, peace or where its implemen- tation would require amendment to the 21 As above. 22 C Mbazira ‘Uganda and the UN treaty Constitution) then the approval by bodies: Reflections on the past and thoughts for the future in the implementation of economic social and cultural rights’ in 16 The Republic of Uganda ‘Report to the United Nations Office of the High African Commission’ presented at the 39th Commissioner for Human Rights Uganda ordinary session of the Commission in May and United Nations Human Rights Mechanisms: 2006, 6-7. A compilation on the occasion of the 60th 17 Constitution of Uganda (n 3 above). anniversary of the Universal Declaration of 18 Ratification of Treaties Act (CAP 204) 5 of Human Rights (2005) 20. 1998. 23 A Nolkaemper National courts and the 19 The State Report to the African Commission international rule of law (2011) 81. (n 16 above) 23. 24 Report on Joint Promotional Visit (n 4 20 Ratification of Treaties Act (n 18 above). above) 61. Impact of the African Charter and the Maputo Protocol in selected African states 267
4 Legislative and policy reforms domination, oppression, racism and any other forms of exploitation. It further The Ugandan Constitution was adopted states that Uganda ‘shall actively partici- in 1995; a few years after Uganda rati- pate in international and regional organ- fied the African Charter. At the time the izations that stand for peace and African Charter was ratified in 1986, the wellbeing and progress of humanity’, old Constitution of 1967 was in opera- and that ‘the state shall promote region- tion. Therefore, when the 1995 Consti- al and pan-African cultural, economic tution was drafted, a provision was put and political cooperation and integra- 26 into the new constitution in article 287 tion’. Furthermore, chapter four of the which stated: Constitution is dedicated to the ‘protec- tion and promotion of fundamental and where any treaty, agreement or Convention other human rights and freedoms’. Arti- with any country or international cle 20 specifically states that ‘fundamen- organisation was made or affirmed by tal rights and freedoms are inherent and Uganda or the government on or after the ninth day of October, 1962, and was still in not granted by the state’. force immediately before the coming into force of this Constitution … the treaty, However, unlike the African Char- agreement or convention shall not be ter, the Constitution does not include affected by the coming into force of this economic, social and cultural rights in Constitution; and Uganda or the its Bill of Rights. The African Charter government, as the case may be, shall continue to be a party to it. was a ground-breaking regional docu- ment in that it gave recognition both to The purpose of this provision was to civil and political rights as well as ensure that the treaties that had existed economic, social and cultural rights in before the Constitution were not invali- the same document. By doing this, the dated by the adoption of the new consti- Charter emphasised the indivisibility or tution. However, in some instances, this interdependent nature of both these provision has been interpreted by courts rights and the fact that one cannot be as declaring treaties like the African achieved without the other. On the Charter to be self-executing, an assertion other hand, in the Uganda Constitution, that has been refuted by scholars.25 these rights were relegated to the section on ‘directive principles of state policy’. Furthermore, the Ugandan Consti- As a result, there has been a lot of tution contained several provisions that debate on the justiciabilty of these direc- are similar to those in the African Char- tive principles. ter. First off, the Constitution sets out, in its principles, a section on ‘foreign Additionally, over the reporting policy objectives’. This section states timeframes to the African Commission, amongst other things that Uganda’s Uganda has formulated as well as foreign policy shall be based on respect amended a series of laws and policies to for international law and treaty obliga- respond to the recommendations by the tions and strongly opposes all forms of African Commission. These include the Access to Information Regulations 2011, Prohibition and Prevention 25 B Kabumba ‘The application of international law in the Ugandan judicial system: A critical inquiry’ in M Killander (ed) International and domestic human rights 26 Constitution of Uganda (n 4 above) ‘Foreign litigation (2010) 83-107. Policy Objectives XXVIII’ 1995. 268 Uganda against Torture Act 2012, Anti-Money unsafe abortions constitute 13 per cent Laundering Act of 2013, National of preventable maternal deaths. Development Plan and Uganda Health Policy.27 Furthermore, implementation of the enacted laws such as the FGM Act and Regarding women’s rights, the Domestic Violence Act is fraught with Constitution sets out in article 21 that all numerous challenges including: the persons are equal before the law in all costs associated with the complaints spheres, shall enjoy equal protection of process; allocation of budgets for the the law and shall not be discriminated implementation of such laws; and the against on any ground including sex. need for revising other laws such as the Article 31 sets out the minimum age for Local Council Act to include provisions marriage as 18 and both men and of these laws and the need to train medi- women are entitled to equal rights in cal officers, police officers and judicial marriage, during marriage and at the officials to implement the provisions set termination of the marriage. Article 33 out in these laws. Also, other harmful sets out that the state shall avail the practices still persist, which hinder appropriate opportunities and facilities women’s enjoyment of their rights, such to improve women’s welfare and enable as early and forced marriage and widow them to reach their full potential. The inheritance.29 Therefore, there is a need same article states ‘women shall have for the African Commission to go affirmative action for the purpose of beyond recommending formulation of redressing the imbalances created by more laws and policies to their actual history, tradition or custom’. This has implementation. The formulation of led to the increase in women’s participa- laws is only the first step to the improve- tion in politics from 20 per cent before ment of human rights and should not be 1996 to over 40 per cent in 2013.28 seen as an end in itself. The focus on drafting legislation has led to a situation In addition to this, gender respon- which can best be referred to as ‘legisla- sive laws and policies have been adopt- tion overload’ whereby the govern- ed such as the Gender Policy (2007), ment’s main response to the issues Domestic Violence Act (2010) as well as raised by the African Commission is to the Female Genital Mutilation Act draft new pieces of legislation. Thus, the (2010). However, certain laws which are African Commission should go beyond vital for the realisation of women’s merely offering recommendations call- rights, such as the Marriage and ing for the passing of legislation, to its Divorce Bill and the Sexual Offenses actual implementation. Bill, have been shelved for years despite various calls for their enactment into One way of doing this is to focus law. Also, Uganda still maintains reser- more on disaggregated data and any vations to article 14 of the Maputo other information showing how human Protocol which aims at permitting the rights principles have been implement- termination of pregnancy in life threat- ed. This should take into consideration ening conditions despite the fact that the rural and urban divide as well as especially vulnerable populations. The
27 Report of the Joint Promotional Visit (n 4 above) 55-56. 29 International Federation for Human Rights 28 Report on the Joint Promotional Visit (n 4 (FIDH) ‘Women’s rights in Uganda: Gaps above) 18. between policy and practise’ (2012). Impact of the African Charter and the Maputo Protocol in selected African states 269
African Commission should also name called, to which the government is a consider undertaking an analysis of the party or in respect of which the policies and programmes implemented government has an interest, shall be concluded without legal advice from the towards the improvement of human Attorney General, except in such cases and rights in Uganda. This is because the subject to such conditions as parliament Ugandan government has been very may by law prescribe. proactive in drafting legislation but not implementing it, thus the situation on The usage of international and regional the ground is still very dire. Further- documents by Ugandan courts has not more, the process of drafting more laws been consistent. In most cases, Ugandan often assumes that Ugandans will revert courts shy away from using internation- to the law once their rights have been al texts but rather prefer to use their own violated. However, this assumption is domestic law. Some of the reasons erroneous considering that in Uganda, advanced for this include lack of exten- poverty coupled with ignorance of the sive knowledge, research and under- law are so pervasive that they lead to the standing of the modalities of the usage failure by a substantial part of the popu- of international law by lawyers, and 30 sometimes judges who prefer not to use lation to access legal services. This 32 leads to a situation whereby the majori- it at all. Also, there is a lack of aware- ty of people whose rights have been ness on the decisions of the African violated cannot access the support of Commission by lawyers and judges; these decisions are rarely referenced in a Uganda’s legal system. This calls for 33 more proactive and creative methods of court of law. In cases where they have human rights protection which do not been used, they have not been interpret- solely rely on formal justice mecha- ed consistently so as to set judicial prec- nisms. edents that can be continuously improved upon so as to advance their incorporation into Ugandan law. 5 Court judgments This discussion sets outs some of the International law does not become law cases where the African Charter has in Uganda until an Act of Parliament been cited. It should be noted that the 31 has been adopted, domesticating it. Maputo Protocol was only ratified in Article 2(2) of the Constitution states 2010 and thus the timeframe has not that the Constitution is the supreme law allowed for extensive usage of the of the land and any law that is inconsist- Maputo Protocol in Ugandan courts. ent with the provisions therein shall be One of the cases where the African declared null and void as the Constitu- Charter was used was Mwenda v Attorney tion shall prevail over it. Furthermore, General. In order to expound on the article 119(5) of the Constitution points nature and content of the right to free- out: dom of expression, the court cited perti- nent clauses from the ‘Declaration of [N]o agreement, contract, treaty, convention or document by whatever Principles on Freedom of Expression in Africa’ which was adopted by the Afri- can Commission to give normative 30 The Danish Institute for Human Rights (n 6 above) 33. 31 Ratification of Treaties Act (n 18 above). See 32 Kabumba (n 25 above) 83-107. also the State Report to the African 33 Report on the Joint Promotional Visit (n 4 Commission (n 16 above). above) 33. 270 Uganda content to article 9 of the African Char- two soldiers on the same day for the ter.34 murder of three civilians, the petitioners sought a ruling declaring the process a In the case of Attorney General v violation of the right to life as well as Susan Kigula & 417 Others which fair trial. Justice Twinomujuni, who concerned the constitutionality of the gave the lead judgment in the Constitu- death penalty, reference was made to tional Court, stated that the African the African Charter, amongst other Charter was self-executing by virtue of 35 provisions. The Court used the Afri- article 286 of the Constitution which can Charter in supporting and emphasis- states that where Uganda was party to a ing the connection between the treaty or convention or agreement after constitutional provisions and the right to October 1962, that agreement was not life and torture. The Supreme Court to be affected by the coming into force emphasised that the fact that article 4 of of the 1995 Constitution and thus Ugan- the African Charter spelt out the right to da shall continue to be party to it. He life and torture did not mean that it had thus stated that since the African Char- therefore outlawed the death penalty. ter was signed in 1981 and ratified in The Court further emphasised that 1986, it had become ‘part and parcel’ of usage of the word ‘arbitrarily’ in the the Constitution. He also read article African Charter showed a limitation on 286 together with article 45 of the the right; that in certain instances, a Constitution which states: person could be lawfully deprived of the right to life. Note should be taken that The rights, duties, declarations and usage of the African Charter in this guarantees relating to the fundamental and instance was not to spell out a legal other human rights and freedoms specifically mentioned in this chapter shall principle but to buttress or further not be regarded as excluding others not emphasise provisions in the Ugandan specifically mentioned. Constitution on the right to life. That notwithstanding, the Court held that the Thus he asserted that even though the death penalty should be abolished and right to appeal was not clearly spelt out replaced with punishments such as life in the Ugandan Constitution, the fact imprisonment.36 that it is one of the provisions of the African Charter made it applicable in In certain instances, judges have the Ugandan Context.37 held contrasting positions on the usage of international texts like the African However, while one of the judges, Charter. In Uganda Law Society & Anoth- Kavuma JA, who gave the minority er v the Attorney General which dealt with judgment in the case, agreed with the the indictment, trial and execution of ruling made by Twinomujuni J that the killing of the two soldiers was unconsti- tutional, he disagreed with the position 34 Obbo and Another v Attorney-General (2004) taken by the lead judge on the African AHRLR 256 (UgSC 2004) sec 16. 35 Attorney General v Susan Kigula & 417 Others Charter. He stated that despite the fact 03 of 2006, Uganda: Supreme Court, that the African Charter by virtue of 21 January 2009 http://www.refworld.org/ docid/499aa02c2.html (accessed 28 October article 286 was one of the international 2015). 36 Following this case, guidelines specifying 35 years as the natural life of the person were 37 Uganda Law Society & Another v The Attorney developed however these have not been General Constitutional Petitions No 2 & 8 of operationalised. 2002 [2009]. Impact of the African Charter and the Maputo Protocol in selected African states 271 treaties recognised in Uganda, he did and community mobilisation. One of not support the assertion that the Afri- the main activities undertaken by NGOs can Charter automatically became part has been to lobby government officials and parcel of the Ugandan Constitution. in various departments to implement the This view is supported by other scholars recommendations laid out by the Afri- who state that the inclusion of article can Commission. CSOs were instru- 286 was mainly for the purpose of vali- mental in lobbying the government to dating the agreements that had been in ratify the Maputo Protocol in 2010. place prior to the Constitution. This They are still pushing for the withdraw- does not make them self-executing, as al of reservations to the Maputo Proto- ‘an act of Parliament’ is required before col. CSOs also use the two instruments the treaty can be converted into national in their research and in their human law.38 rights work.
Kavuma JA went ahead to state that One of the main ways through the right to appeal is to be conferred by which NGOs and civil society have virtue of a statute and that the African utilised the African human rights mech- Charter was the statute that bridged the anisms is by obtaining observer status gap in terms of section 286 rather than with the African Commission. Current- article 45. Yet, there seems to be an ly, 10 civil society organisations based anomaly in this due to the fact that the in Uganda have observer status with the African Charter has not been translated African Commission. These are: Foun- into national law by an Act of Parlia- dation for Human Rights Initiative ment. These contradictions show the (FHRI); Human Rights Network challenges faced by Ugandan courts in (HURINET); Ugandan Association for the consistent application of internation- Women Lawyers (FIDA); East and al law in the domestic space. Therefore, Horn of Africa Human Rights Defend- due to the fear of wrongfully applying ers Project; Pan African Movement; these international law principles, most Kituo Cha Katiba – The East African lawyers and judges decide to completely Constitutional Centre for Constitutional refrain from using international human Development; African Freedom of rights instruments and only use the Information Centre; Strategic Initiative domestic ones. Therefore, there is a for Women in the horn of Africa; Afri- need to domesticate the African Charter can Centre for the Treatment and Reha- and also to conduct more training for bilitation of Torture Victims (ACTV); judicial officers on the appropriate usage and Human Rights Centre-Uganda.39 of international legal texts in the domes- tic context. These organisations have contribut- ed to the promotion of human rights in 6 Awareness and use by civil Uganda by sending shadow reports to society the African Commission to complement state reports, by providing information on the human rights situation which the In advancing human rights in Uganda, government might have left out. In its civil society organisations (CSO's) use various strategies including networking, advocacy, research, lobbying, education 39 African Commission on Human and Preoples’ Rights ‘Uganda’ http://www. ach pr.org/states/uganda/ (accessed 38 Kabumba (n 25 above) 83-107. 28 October 2015). 272 Uganda
2006 concluding observations, the Afri- 7 Higher education and academic can Commission noted that it had writing received shadow reports from: the Foundation for Human Rights Initiative Regarding education, the Constitution (FHRI); the Uganda Association for sets out that all persons have a right to Women Lawyers (FIDA-U); and a joint education and universities have thus report from the International Gay and gone ahead to incorporate human rights Lesbian Human Rights Commission as one of the fields of study both in the (IGLHRC) and Sexual Minorities legal field and in the social sciences. For 40 Uganda (SMUG). Civil society organ- instance, the Makerere University has a isations, as well as human rights faculty of law which runs a programme lawyers, were also very instrumental in under the Human Rights and Peace ensuring that the Constitutional Court Centre (HURIPEC) which aims to teach annuls the discriminative anti-homosex- human rights to interdisciplinary 41 uality bill in 2014. governmentstudents and also integrate them into human rights activities in However, the submission of shadow various human rights organisations reports is not consistent as these organi- around the country.42 sations did not submit reports in the subsequent reporting periods on the Uganda has nine universities which implementation by the Ugandan are accredited to teach law including government of the recommendations Makerere University and Uganda Chris- pointed out by the African Commission. tian University.43 All these universities As the NRM government has have a human rights course unit both entrenched its power over the subse- within and outside their law faculties, quent years, it has increasingly disre- which teaches about the African human garded human rights. Various strategies rights system. For instance, under the have been used to narrow the operating college of humanities and social scienc- environment for such organisations es of Makerere University, there is a including the drafting of laws meant to bachelor’s degree in ethics and human narrow their operation. At the time of rights and some of the course units are: writing this report, an NGO bill is being African Traditional Systems and discussed by parliament which organisa- Human Rights, and Human Rights in tions have criticised for giving too much Africa.44 However, most of Ugandan power to the government under the curricula on human rights place empha- guise of supervising the work of NGOs. sis on the United Nations human rights Other tactics used by the government system rather than the African human include threats, closing workshops and rights system. reprimanding NGOs claiming they are intruding into political matters. 42 State Report to the African Commission (n 16 above) 25. 43 Uganda National Council for Higher 40 African Commission ‘Concluding obser- Education http://www.unche.or.ug/latest- vations and Recommendations on the news/list-of- universities-accredited-to-teach- Second Periodic Report of the Republic of law-in-uganda.html (accessed 8 September Uganda’ 40th ordinary session, 15-29 2015). November 2006, in Banjul, The Gambia. 44 Makerere University ‘Courses – Bachelor of 41 ‘Uganda Court annuls anti-homosexuality ethics and human rights’ http://courses. law’ BBC News 1 August 2014 http://www. mak.ac.ug/programmes/bachelor-ethics- bbc.com/news/world-africa-28605400 and-human-rights (accessed 8 September (accessed 8 September 2015). 2015). Impact of the African Charter and the Maputo Protocol in selected African states 273
8 National human rights treaties.46 It also undertakes human institutions rights education and training to various groups such as the police, health work- In compliance with the African Charter, ers, administrators and teachers under the Constitution established several its mandate with the aim of ensuring institutions mandated to uphold human that they adhere to human rights princi- rights such as the Uganda Human ples in their work. It has also been Rights Commission (UHRC). The instrumental in drafting documents UHRC is very vibrant and functional. aimed at ensuring the respect of human The Constitution gives the UHRC an rights. These include the Guidelines for expansive mandate which goes beyond Managing Public Demonstrations, merely monitoring and reporting on amongst others. human rights violations, to providing legal remedies to those whose rights 9 State reporting have been violated. Where a rights hold- er is not satisfied with the decisions of Despite ratification of the African Char- the UHRC, they can appeal to the High ter in 1986, it was not until 1 April 2000 Court of Uganda.45 that Uganda submitted its first State Report to the African Commission. The The UHRC acts as a court with a Report covered the period from 1986- functional ‘human rights tribunal’ which 2000. Its second report was submitted receives, investigates and concludes on 1 May 2006 covering the period of cases of those whose rights have been 2000-2006. Uganda attributed the delay violated. It then provides monetary in submitting reports timeously to lack compensation and encourages media- of qualified personnel to write the state tion between the parties towards an report as those who had been trained agreeable resolution. The UHRC has had either left the country or changed been instrumental in working with the jobs.47 African Commission for the promotion and protection of human rights in Ugan- The subsequent reports were, da. To this end, it has affiliate status however, submitted on time as the next with the African Commission. Also, the periodic report was submitted on 1 fact that the current chairperson of the November 2008, and the next on 26 UHRC, Med SK Kaggwa, is also a March 2011. The most recent periodic member of the African Commission has report was submitted on 25 September greatly enhanced its work and has 2013.48 The Concluding Observations allowed for fruitful collaboration to the 1st state report were given at the between the two bodies. African Commission’s 27th ordinary session which took place from 27 April The UHRC often aids the govern- ment in coming up with a comprehen- 46 Report on the Joint Promotional Visit (n 4 sive periodic state report to the African above) 30. Commission by providing the appropri- 47 EVO Dankwa ‘Report on promotional visits to Uganda and Kenya’ 12-21 July 1998 ate information and calling for the http://www.achpr.org/states/uganda/miss domestication of some international ions/promo-1998/ (accessed 8 September 2015). 48 ‘State reports and concluding observations’ http://www.achpr.org/states/reports-and-co 45 Report on the Joint Promotional Visit (n 4 ncluding-observations/ (accessed above) 13-29. 26 August 2015). 274 Uganda to 11 May 2000. The Concluding Obser- Since Uganda submitted its first vations for the 2nd state report were periodic report, a series of issues have given during the 40th ordinary session been brought up throughout the subse- from the 15-29 November 2006. The quent reports to be addressed by the observations for the 3rd state report Ugandan government. These include: were given during the 45th ordinary police brutality especially during assem- session which took place from the 13-27 blies and protests, the poor state of May 2009. The Commission gave its Ugandan prisons and the restrictive observations for the 4th state report NGO operation environment with a bill during the 49th ordinary session from that has been looming over them for 28 April-12 May 2011. The Commission years. Some of these observations have is yet to respond to Uganda’s 5th state been responded to by putting in place report which was submitted in 2013.49 laws, programmes and policies to respond to the issues. State reports are prepared under the Ministry of Foreign Affairs which also However, certain laws that have represents the country during the Afri- been drafted by the state further impinge can Commission’s sessions.50 The dele- on human rights such as the HIV and gation that goes to the African AIDS Prevention and Control Act Commission sessions is often a mixture which the President signed into law on of the various ministries such as repre- 31 July 2014. This law had been criti- sentatives from the Ministry of Justice cised by human rights activists as being and Constitutional Affairs and those discriminatory since it criminalises the from the Ministry of Gender. Gender transmission of HIV and calls for representation is also a factor as the mandatory testing. In effect, the Act delegation often has female representa- criminalises HIV thus it may deter tion. For instance, when Uganda people from voluntarily testing for HIV presented its 2006 state report to the due to fear of being held criminally African Commission, the delegation liable.54 Another worrying piece of comprised of two females and two legislation is the Public Order Manage- males.51 The 2008 state report delega- ment Act of 2013. Domestic and inter- tion had 4 males and 2 females52 and national organisations have criticised the 2011 state report delegation was the bill for severely restricting freedom represented by one male and one of expression as well as peaceful assem- female.53 bly. If assented to by the President, it has the potential of curtailing human rights.55 49 State reports and concluding observations (n 48 above). 50 Report on the Joint Promotional Visit (n 4 Additionally, one of the issues that above) 13. was raised in response to the earlier 51 Concluding Observations (n 40 above) 1-2. 52 African Commission ‘Concluding observations of the African Commission on the third periodic report of the Republic of 54 ‘HIV Prevention Act angers Ugandan AIDS Uganda’ presented at the 45th ordinary activists’ Voice of America 27 August 2014 session held in Banjul, The Gambia, 13-27 http://www.voanews.com/content/hiv-pre May 2009 1. vention-act-aids-activists/2429821.html 53 African Commission ‘Concluding obser- (accessed 8 September 2015). vations of the African Commission on the 55 ‘Uganda: Public Order Management Bill’ fourth periodic report of the Republic of Article 19 13 August 2013 https://www. Uganda’ presented at the 49th ordinary article19.org/resources.php/resource/37201 session, Banjul, The Gambia, 28 April-12 /en/uganda:-public-order-management-bill May 2011 1. (accessed 8 September 2015). Impact of the African Charter and the Maputo Protocol in selected African states 275 state reports was the duplication of gain international support in order to reports. The African Commission asked work amicably with other countries. Uganda to refrain from submitting Therefore, even if on paper Uganda has reports on the implementation of the seemingly undertaken steps that are African Charter which were exactly human rights compliant, one can only similar to those submitted to the UN conclude that at best, the recommenda- Human Rights Committee and other tions from the African Commission international human rights bodies.56 contributed to a certain law or policy The Commission further pointed out reform. that such a reporting practice demon- strates a lack of commitment on the part 10 Communications of the Ugandan government to conduct research and present issues that are So far, three cases have been brought to peculiar to the African Charter and to the African Commission involving the African situation in general. The Uganda. The first case was decided by government improved the subsequent the African Commission in 1995 and reports by adhering to the guidelines set concerned a citizen from the Democrat- out by the African Commission and ic Republic of Congo (which was then thus the reports improved significantly Zaire) called Nziwa Buyingo. He over time to address the issues pointed alleged that he had been subjected to out by the African Commission. arrest, arbitrary detention and torture by Ugandan soldiers in Kisoro, Uganda in However, it should be noted that it December 1987. However the Commis- is an almost impossible task to ascertain sion failed to get any response from him whether laws, policies and programmes on whether or not he had received that are implemented in a certain period access to the available remedies in are a direct result of one piece of legisla- Uganda. Thus, the African Commission tion, in this case the African Charter or declared the communication inadmissi- the Maputo Protocol. This is due to the ble.57 The second communication was fact that Uganda reports to several filed in 1996 by the Association pour la human rights bodies both at the regional sauvegarde de la paix au Burundi (ASP- and international level, thus, the same Burundi, Association for the Preserva- recommendations may be pointed out tion of Peace in Burundi) which alleged by such other bodies. Also, a series of that, Uganda, Kenya, Tanzania, factors beyond the recommendations Zambia and Zaire (now Democratic may push government to pass certain Republic of Congo) had violated a series policies. Such factors may include: the of African Charter rights by imposing an need for political support of a regime, to embargo on Burundi. These included: push for a certain agenda which is in the right to life and integrity, the right to line with their political views and to education, the right to economic social and cultural development and the frus- 56 This observation was made by the African tration of attempts to strengthen peace, Commission in its concluding observations made in 2006 to the Uganda’s 2nd periodic solidarity and friendly relations. The report submitted to the Commission in the African Commission found that the same year. The Republic of Uganda ‘Report to the African Commission on Human and Peoples’ Rights presented at the 39th ordinary session of the Commission on 57 8/88 Nziwa Buyingo/Uganda http://www. Human and Peoples’ Rights’ Banjul, The achpr.org/communications/decision/8.88/ Gambia, 25 May 2006. (accessed 8 September 2015). 276 Uganda states were not guilty of a violation of the African Charter provisions, UN any of the Charter rights as the embargo Declaration on Principles of Interna- had been put in place to pressure the tional Law Concerning Friendly Rela- government of Burundi to put in place tions and Cooperation among States democratic institutions, establish the and other applicable laws.59 At the time rule of law and to respect human of handing down the decision, the Afri- rights.58 can Commission noted that some posi- tive developments had already occurred Additionally, in early 1999, the in this matter, specifically the withdraw- Democratic Republic of the Congo al of the armed forces of the respondent (DRC) submitted a communication to states from that of the complainant the African Commission against Burun- state.60 di, Rwanda and Uganda. DRC alleged that the armed forces of these three 11 Special mechanisms and countries had committed grave viola- promotional visits tions of human rights and massacres under the ‘fallacious’ pretext of safe- The African Commission has undertak- guarding their interests. Thus, these en several promotional visits to Uganda countries had acted in blatant disregard under article 45 of the Charter. The first of the fundamental principles that visit was undertaken from 12 to 21 July govern friendly relations between states, 1998 in order to inform the relevant avoidance of use of force in internation- stakeholders about the mandate of the al relations, respect for the territorial African Commission and also to integrity and sovereignty of states and encourage the country to submit a state the non-interference in the internal report as it had not submitted any affairs of states. Therefore, the three reports as at that time. This was so states had violated numerous provisions despite the fact that Uganda was of the African Charter including the amongst the first set of countries to have right to life, the right to liberty, the right a national – Grace Ibingira – serve as a to equality, the right to health and the commissioner of the African Commis- right to education. sion. Uganda expressed that the non- In this instance, the African submission of its report was mostly due Commission ruled in favour of the DRC to lack of qualified people to write a by finding that the three countries were comprehensive and analytical report, indeed in violation of numerous rights and that the personnel who had been of the African Charter. The African trained to undertake the writing process Commission asked the countries to with the Ministry of Foreign Affairs had either left the country or left the minis- withdraw its troops from the DRC, 61 asked for adequate reparations to the try. The second visit was undertaken victims of the numerous violations as a by the Special Rapporteur on Prisons result of the actions of the armed forces and Conditions of Detention in Africa, of the three countries and to abide by
59 227/99 Democratic Republic of Congo/Burundi, Rwanda, Uganda http://caselaw.ihrda.org/ 58 157/96 Association pour la sauvegarde de la paix doc/227.99/ (accessed 8 September 2015). au Burundi/Kenya, Uganda, Rwanda, 60 227/99 Democratic Republic of Congo/Burundi, Tanzania, Zaire (DRC), Zambia http://www. Rwanda, Uganda http://caselaw.ihrda.org/ achpr.org/communications/decision/157. doc/227.99/ (accessed 8 September 2015). 96/ (accessed 8 September 2015). 61 Dankwa (n 47 above). Impact of the African Charter and the Maputo Protocol in selected African states 277
Vera M Chirwa, from 11 to 22 March Commission had given over the years in 2001. This visit was aimed at document- response to Uganda’s periodic reports. ing conditions of detention in Africa The visit was successful as it revealed a and establishing dialogue with the lot of pertinent information on Uganda. government on how to improve condi- One of the reasons for this was the fact tions of detention and rehabilitation in that within the delegation, there was a Uganda. Some of the recommendations Ugandan who is also a Commissioner. by the Commissioner were: to reduce Honourable Commissioner Med SK congestion in prisons by reforming the Kaggwa is the Special Rapporteur on police and courts; improve general Prisons and Conditions of Detention in hygiene and the health conditions of Africa. He is also the chairperson of the prisoners; and to improve the drafted Uganda Human Rights Commission. prison bill to reflect all the challenges of His vast human rights experience in Uganda’s prison system.62 Uganda as well as contacts made over the course of his human rights career The African Commission undertook enabled a connection between the dele- a third promotional visit upon the invi- gation and the right people and places. tation of the Ugandan government from This greatly contributed to comprehen-
25 to 30 August 2013. This promotional sive findings on the human rights situa- visit was very important and compre- tion in Uganda. hensive as it enabled the African Commission to interact with various In addition to the official visits stake holders which allowed for an mentioned above, a research and infor- informed view of the human rights situ- mation tour was undertaken by a ation in Uganda. Amongst the groups member of the African Commission’s that the Commissioners visited were: working group on indigenous popula- the Ministry of Foreign; the Prime tions/communities in Africa. This took Minister; the Ministry of Justice and place between 14 to 17 July and then Constitutional Affairs; the Electoral from 24 to 29 July 2006. The visit was Commission; a few prisons; the Speaker aimed at dissemination of information of Parliament; and a few human rights to the Ugandan government about the organisations. As a result of these inter- position of the African Commission on actions, the African Commission was the rights of indigenous peoples in the able to come up with a comprehensive country. It was also aimed at identifying report on the human rights situation in challenges faced by the indigenous Uganda and to devise practical recom- peoples such as the Batwa Pygmies of mendations specific to Uganda. Western Uganda and formulating diverse strategies for addressing the Also as a result of this visit, the human rights situations of such indige- report was more detailed than any of the nous communities.63 These objectives concluding observations that the African were met through this visit and several recommendations were devised, which included: the need to recognise the 62 African Commission on Human and Peoples’ Rights ‘Report on the mission of the Batwa and the pastoralists as indigenous Special Rapporteur on prisons and peoples in the sense in which the word conditions of detention in Africa to Uganda’ presented at the 33rd ordinary session of the African Commission, 15-29 May 2003, 63 Report of the African Commission’s working Niamey, Niger DOC/OS(XXXIII)/ group on indigenous populations/ 324CcIII. communities’ Research and Information 278 Uganda is understood internationally; and the difficult to measure progress. Some of need to adopt appropriate legislation in the general recommendations include this respect. ensuring the establishment of adequate legislation on freedom of expression to 12 Factors that may enhance or fulfil its obligations under the African Charter.64 Another was to ensure that impede the impact of the 65 African Charter, the Maputo legal aid is available to every citizen. Protocol and the African Such recommendations may be too broad, such that any step taken by the Commission government may be assumed sufficient. Furthermore, such recommendations do One of the good practices that the Afri- not set any benchmarks to measure can Commission undertakes is working progress from one reporting period to closely with the UHRC. This collabora- another. The giving of general recom- tion should be carried forward and mendations also impedes the purpose of enhanced principally because the the reporting process where unique chal- UHRC is the primary human rights lenges facing Uganda are not discussed body for monitoring the promotion and in detail but, rather, are at times general protection of human rights in Uganda. and repetitive. This in turn may have Thus, it has wide coverage throughout the effect that state reports are equally all the regions in Uganda and receives general and repetitive. This calls for funding from the government. In collab- specific recommendations whose oration with the UHRC and suitably progress can be measured in the next placed human rights organisations, the periodic report. African Commission should also conduct sensitisation programmes for There is also a clear need for the the judges, lawyers and legislators on African Commission to build upon its how to incorporate the African Charter, previous recommendations and keep Maputo Protocol and the jurisprudence following up on the recommendations of the African Commission in their that have not been implemented. For work. instance, in its earlier recommendations, the African Commission pointed out Additionally, the African Commis- that NGOs had not submitted alterna- sion should shift its focus from merely tive reports to make for a balanced situa- recommending the enactment of more tional review on the human rights legislation to laying emphasis on moni- situation in Uganda. Thus, the govern- toring the implementation of such legis- ment was asked to encourage NGOs to lation. Over the years, the submit alternative reports. However, recommendations from the African this did not happen and was not report- Commission have tended to become ed on in the subsequent report and, more general and thus it is sometimes consequently, the African Commission did not bring this recommendation up again or ask for reasons why this was the case. Also, the issue of extending the reporting period was not dealt with by
visit to the Republic of Uganda, 14-17 July, 24-29 July 2006. The report was adopted at the 43rd ordinary session of the African 64 Concluding observations (n 52 above) 7. Commission, 7-22 May 2008. 65 Concluding observations (n 53 above) 6. Impact of the African Charter and the Maputo Protocol in selected African states 279 the African Commission. The Ugandan government asked the African Commis- sion to look into the issue of extending the reporting period to three years in order to give it enough time to imple- ment the recommendations pointed out by the African Commission and to give comprehensive feedback to the African Commission in the next reporting peri- od.
Last but not least, the African Commission should encourage civil society organisations to continue submitting shadow reports to the period- ic state reports. This will help the Afri- can Commission to gather enough information on implementation of the recommendations in its previous reports thus gaining a better and more informed understanding of adherence to human rights in that reporting period. TABLE OF CONTENTS
Preface ...... vii
Introduction ...... 1 Victor Oluwasina Ayeni
Burkina Faso ...... 17 Kounkinè Augustin Somé
Cameroon...... 31 Polycarp Ngufor Forkum
Côte d’Ivoire ...... 45 Kounkinè Augustin Somé Armand Tanoh
Ethiopia ...... 57 Meskerem Geset Techane
Gambia ...... 75 Satang Nabaneh
Ghana ...... 95 Michael Gyan Nyarko
Kenya ...... 115 Saoyo Tabitha Griffith Paul Ogendi
Lesotho ...... 133 Sizakele Hlatshwayo
Malawi...... 149 Sarai Chisala-Tempelhoff Seun Solomon Bakare
v THE IMPACT OF THE AFRICAN CHARTER AND THE MAPUTO PROTOCOL IN ZIMBABWE
Tarisai Mutangi*
1 Introduction It then follows that whenever a national law with a bearing on the Charter or The adoption of a Constitution in 2013 Maputo Protocol is subject to interpreta- (the 2013 Constitution) was a paradigm tion, the court concerned must prefer an shift in the legal framework for the interpretation that is consistent with protection of human rights in Zimba- these instruments. bwe.1 Amongst other things, the 2013 Constitution provides for an entrenched The new equality provisions in the and elaborate Bill of Rights literally 2013 Constitution have improved the domesticating all civil and political protection of women’s rights. Gender rights as they are enshrined in interna- equality has been earmarked as one of tional human rights treaties. Further, the national objectives where the state is the Constitution now provides for justi- obligated to ‘promote the full participa- ciable economic, social and cultural tion of women in all spheres of Zimba- bwean society on the basis of equality rights such as rights to health, shelter, 3 education and water, amongst others. It with men’. This national objective of also provides for environmental rights. gender equality has introduced a fifty per cent membership quota system in The 2013 Constitution also provides constitutional commissions and other for a new legislative interpretation bodies established by government or regime in which the Bill of Rights must parliament. The economic empower- be central whenever legislation is being ment of women is also stressed to enable interpreted.2 Any court interpreting any them to access land on an equal basis 4 legislation must prefer an interpretation with men. that is consistent with international law. As to justiciable rights, section 56 of the 2013 Constitution is the equality provision prohibiting discrimination and promoting equality. ‘Women and men * LLM HRDA (Pretoria), Managing Partner, have the right to equal treatment, Donsa-Nkomo and Mutangi Attorneys, including the right to equal opportuni- Lecturer at Midlands State University and consultant based in Zimbabwe. 1 See Constitution of Zimbabwe (Amend- ment) Act 20 of 2013. 3 Sec 17(1)(a) of the 2013 Constitution. 2 Sec 45 of the 2013 Constitution. 4 Sec 17(1)(c) of the 2013 Constitution.
281 282 Zimbabwe ties in political, economic, cultural and African Commission processes because social spheres,’5 while gender and sex of the increasing cases of human rights are listed as grounds upon which abuses and violation of several of its discrimination is prohibited. Interesting- obligations under the African Charter. ly, custom, which used to be an excep- Because of the high number of cases tion to discrimination in the previous filed against Zimbabwe and the constitutional order is now a listed increased resolutions and statements by ground with section 26 on marriage the African Commission on Zimbabwe, rights emphasising the need for ‘equality the last ten years have seen increased of rights and obligations of spouses communication between the African during marriage and at its dissolution’.6 Commission and the government of Zimbabwe. Chapter 12 of the 2013 Constitution establishes independent institutions to The most recent regional instrument support democracy including the ratified by Zimbabwe is the Maputo Gender Commission and the Zimbabwe Protocol. This was ratified on 15 April Human Rights Commission.7 The 2008. Using the Maputo Protocol as an Gender Commission is therefore the example, the process of ratification start- premier institution in terms of promo- ed off with the Ministry of Gender. The tion and protection of women’s rights responsible Minister tabled the proposal while the Zimbabwe Human Rights for ratification before Cabinet which Commission deals with general human approved the ratification process. The rights issues. Meanwhile gender contin- ratification was presented to parliament ues to be mainstreamed into which did not debate it, but simply took programmes and policies of government note of the proposed ratification. The with the assistance of United Nations ratification instruments were prepared agencies such as UN Women and line and lodged through the Ministry of ministries. Foreign Affairs.9
2 Ratification of the African By and large, Zimbabwe pursues an Charter and the Maputo ad hoc system in terms of ratification of international instruments. It is not possi- Protocol ble to find any rules that justify ratifica- tion of any instrument. It appears that Zimbabwe became a state party to the the decision to initiate the ratification African Charter on 30 May 1986. process is initiated by the line minister Communication with the African who desires that a certain instrument be Commission is through the Ministry of ratified by Zimbabwe for reasons that Justice and Legal Affairs and more are best known by that ministry. Once specifically the office of the Permanent the Cabinet approves the ratification, Secretary.8 It was not until 2000 that the above procedure is followed result- Zimbabwe came into the lime light of ing in final ratification of the instrument concerned. 5 Sec 56(2) of the 2013 Constitution. 6 Sec 26(c) of the 2013 Constitution. 7 At the time of writing, the Gender Commission Bill, a law to implement constitutional provisions on the Gender Commission, was before parliament and could be enacted in the short term. 9 Interview with a government official at the 8 Interview with government official. Ministry of Foreign Affairs. Impact of the African Charter and the Maputo Protocol in selected African states 283
3 Domestication and by or under the authority of the Presi- incorporation dent before 1 November 1993 and which, immediately before that date, did As regards hierarchy of sources of law not require approval or ratification by in Zimbabwe, the 2013 Constitution Parliament, remained part of the law of provides in section 3 that: ‘This Consti- Zimbabwe after the 1993 Amendment’. tution is the supreme law of Zimbabwe Zimbabwe ratified the African Charter and if any other law is inconsistent with in 1986, thus making it part of the law this Constitution that other law shall, to of Zimbabwe without need for any the extent of the inconsistency, be void’. further legislative act. This technically This means that any law, despite its seems to be the position in Zimbabwe. nature or origin, should conform to the Nevertheless, the Maputo Protocol, provisions of the Constitution. having been ratified in 2008, does not form part of domestic law until such Zimbabwe is a typical dualist state. time as it has been domesticated by In terms of section 327(2) of the 2013 virtue of a legislative act, in terms of the Constitution, all international treaties, current provisions of section 327 of the agreements and conventions ratified by 2013 Constitution. Zimbabwe which bind Zimbabwe and other countries such as the African The 2013 Constitution provides for Charter and Maputo Protocol, ‘shall not a full catalogue of civil and political form part of the law of Zimbabwe unless rights on one hand and justiciable it has been incorporated into the law by economic, social and cultural rights on or under an Act of Parliament’. This the other hand. Save for provisions on means that domestication is a prerequi- equality between men and women in site for international instruments to relation to opportunities and matrimoni- form part of the domestic law. al issues, women’s rights are not at all distinctly provided for. Women-specific However, section 327 of the 2013 rights such as those against harmful Constitution has a history of being cultural practices are not specifically changed from monist to dualist, back to provided for in the 2013 Constitution. monist and then finally dualist as it In that vein, ratification of the Maputo stands today by virtue of constitutional Protocol has not resulted in any legal amendment. In the case decided by the reform to bring national law in conform- Supreme Court of Zimbabwe sitting as a ity with international standards. Constitutional Court in Kachingwe and Another v Minister of Home Affairs and While the Charter is part of domes- Others,10 it was held that ‘the Constitu- tic law, there have not been any efforts tion of Zimbabwe Amendment (12) Act, to achieve full incorporation of the 1993 (4 of 1993)’ … amended the then Maputo Protocol into national legisla- dualist section 111B … ‘so that any tion. This is only possible with the convention, treaty or agreement which domestication process as far as the was acceded to, concluded or executed Protocol is concerned. Other interna- tional instruments such as the Geneva 10 SC145/04 (18 July 2005) http://www. Conventions have been fully domesti- chr.up.ac.za/index.php/browse-by-subject/ cated by parliament resulting in the 514-zimbabwe-kachingwe-and-others-v-the- minister-of-home-affairs-and-others-2005-ah Geneva Conventions Act [Chapter rlr-228-zwsc-2005.html (accessed 10 August 11:06] and the Child Abduction Act 2015). 284 Zimbabwe
[Chapter 5:05] which give effect to some the African Commission. Two of these aspects of the Convention on the Civil are key. These are the Public Order and Aspects of International Child Abduc- Security Act of 2002 (POSA) and the tion, signed at the Hague on the Access to Information and Protection of 25 October 1980. Privacy Act of 2002 (AIPPA). POSA seriously curtailed the exercise of free- 4 Legislative and policy reform dom of assembly and the African Commission in its 2002 Fact Finding There are no records of whether a Mission Report, recommended its compatibility study was done before the repeal. AIPPA on the other hand limit- 1986 ratification of the African Charter ed freedom of the press and freedom of by Zimbabwe. Similarly, this research expression. Again the African Commis- was unable to find a record to show that sion recommended the repeal of this a compatibility study was carried out legislation. Since becoming party to the before ratification of the Maputo Proto- African Charter, Zimbabwe has there- col in 2008. Since ratification of the fore had a mix of progressive and retro- African Charter in 1986, several laws gressive legislative reform. have been passed in Zimbabwe, some Zimbabwe adopted its inaugural giving effect to the African Charter and National Gender Policy in 2004, which some derogating from the rights that are Policy has since been replaced by the provided for in the African Charter. National Gender Policy 2013-2017. It is Amendment 17 to the Constitution encouraging to note that the current which was passed in 2005 expanded the Gender Policy makes reference to the grounds on which discrimination is Maputo Protocol in so far as it stands as prohibited to include disability, sex, a point of reference in terms of what the gender and marital status. The same Policy seeks to achieve. One could say Amendment also recognises and the Policy seeks to give effect to the obli- protects women’s rights to equal access gations contained in the Maputo Proto- to land. It also legislated for affirmative col amongst other instruments such as action for previously disadvantaged CEDAW and the SADC Gender Proto- groups. Amendment 19 of the Constitu- col of 2008. However, the Maputo tion passed in 2008 created the Zimba- Protocol is so incorrectly cited to the bwe Human Rights Commission and extent that one wonders whether the Zimbabwe Electoral Commission. drafters of the Policy had a copy of the Enabling legislation such as the Domes- Maputo Protocol during drafting. It is tic Violence Act of 2006 was passed to cited as the ‘protocol to the 2003 Afri- further afford protection of rights of can Charter on Human and People’s women. These and other progressive Rights on the Rights of Women’. pieces of legislation do not however make explicit reference to the African The Gender Policy goes on to shed Charter. light on the extent and nature of legisla- tive reform that followed its adoption in However, retrogressive legislation 2004. It claims that 17 pieces of legisla- was passed by Zimbabwe after its acces- tion to advance gender equality and sion to the African Charter leading to equity objectives have since been adopt- major human rights abuses and viola- ed or amended. These include the tions which have been the subject of liti- Matrimonial Causes Act (1987); Admin- gation in national courts as well as with Impact of the African Charter and the Maputo Protocol in selected African states 285 istration of Estates Act (1997); Mainte- Broadcasting Authority of Zimbabwe, Minis- nance Act (1999); Sexual Offences Act ter of State for Information and Publicity (2001); Education Act (2004); Labour and the Attorney General of Zimbabwe.12 In Act, [Chapter 28:01]; Criminal Law that case, Capital Radio, which had (Codification & reform) Act (2006); and been granted a license to broadcast in Domestic Violence Act (2007), amongst Zimbabwe, brought in broadcasting others. The 2004 Public Sector Gender equipment, but the Minister of Informa- Policy put in place Gender Focal Points tion and Publicity sought to stop the in all government ministries and state- applicant from broadcasting on grounds controlled corporations and in 2012, a that this violated the Presidential process was initiated to set up a Gender Powers (Temporary Measures) Act. The Commission, which was established Presidential Powers Act was later super- under the 2013 Constitution. The imple- seded by the Broadcasting Act. Capital menting legislation is before parliament Radio’s constitutional challenge was in the form of the Gender Commission that a number of provisions of the Bill. Broadcasting Act infringe section 20(1) of the 1980 Constitution, which guaran- 6 Court judgments tees freedom of expression. One of the issues that the Zimbabwe International human rights instruments Supreme Court (ZSC) had to grapple may be directly applied at the domestic with was whether section 20 includes level after domestication through parlia- freedom of the media. The court relied mentary approval. This is provided for on the UDHR, ICCPR and the African in section 327(1) of the 2013 Constitu- Charter. Chidyausiku CJ made refer- tion. This has been the position since ence to article 9 of the African Charter 1993 where the old section 111B was and the twin articles 19 of the UDHR held not to have the effect of requiring and ICCPR. He further quoted the Afri- approval by Parliament of any conven- can Commission’s interpretation of arti- tion, treaty or agreement which was cle 9 and concluded by saying that acceded to, concluded or executed by or ‘Zimbabwe … is a party to the African under the authority of the President Charter and consequently article 9 before 1 November 1993 and which should provide guidance in interpreting immediately before that date, did not section 20 of the constitution’. The require approval or ratification by Court then held that freedom of expres- Parliament.11 Despite this provision, sion has to be interpreted to include application of the African Charter by freedom of the press and is also enjoyed the Zimbabwe Supreme Court (ZSC) by corporate persons. About six sections has been disappointing. This assessment of the Broadcasting Act were found to covers the period 2002 to 2011 and out fail constitutional muster, and were of the 642 surveyed cases, the ZSC accordingly struck down. made reference to the African Charter in just three cases.
The first case in which the African Charter was referred to is Capital Radio v
11 See sec 111B of the Constitution of Zimbabwe. 12 SC128/02. 286 Zimbabwe
The ZSC was not so progressive in tuted inhuman and degrading treatment Association of Independent Journalists and in contravention of section 15 of the Others v Minister of Information and Public- Constitution. The Court held: ity and Others.13 In that case, the appli- cants challenged sections 79, 80, 83 and I have no doubt, in my mind, that the 85 of the Access to Information and holding cell that the court inspected at Highlands Police station, the same hold- Protection of Privacy Act. Section 79 ing cell in which Kachingwe was provides for the accreditation of journal- detained overnight, does not comply ists, section 83 outlaws the practice of with elementary norms of human journalism without accreditation and decency, let alone, comply with interna- section 85 provides for the development tionally accepted minimum standards. of a code of conduct by the Media and The Court further held that Kachingwe Information Commission and confers and Chibebe were detained in condi- on it disciplinary powers and provides tions that constituted inhuman and guidelines on sanctions for misconduct. degrading treatment in violation of The applicants sought to have these four section 15(1) of the Constitution. The sections declared unconstitutional. Court observed that the African Charter prohibits torture and inhuman and The Court referred to jurisprudence degrading punishment in article 5 and from the Inter-American Commission concurred that the African Charter and and Court on Human Rights as well as the ICCPR were signed before 1993 and the European Court on Human Rights. became part of Zimbabwe law by virtue There was no reference to the African of section 111B of the Constitution. The Charter or the African Commission’s Court further made reference to the Declaration of Principles on Freedom of jurisprudence of the African Commis- Expression in Africa. Principle IX of the sion in which there was a finding of Declaration provides as follows: violation of article 5 of the African 15 Any regulatory body established to hear Charter. Surprisingly, the ZSC did not complaints about media content, includ- find a violation of section 15(1) of the ing media councils, shall be protected Constitution in another case of inhuman against political, economic or any other and degrading treatment and punish- undue interference. Its powers shall be ment in prisons in the case of Woods v administrative in nature and it shall not 16 seek to usurp the role of the courts. Commissioner of Prisons and Another and Effective self-regulation is the best there was no reference to the African system for promoting high standards in Charter. the media. Concluding on this point, it is hoped In the case of Nancy Kachingwe and that in the future, superior courts in Another v Minister of Home Affairs and 14 Zimbabwe will apply the African Char- Another, the ZSC made extensive ter and the Maputo Protocol to protect reference to the African Charter, the rights more robustly and achieve justice ICCPR and the European Convention for all. The current jurisprudence has on Human Rights. In that case, the applicants challenged the conditions of police cells and alleged that they consti- 15 Communication 225/95 Huri-laws v Nigeria; Communication 222/99 Civil Liberties Organisation v Nigeria 151/96 and Communication 232/99 John D Ouko v 13 SC136/02. Kenya. 14 SC145/04. 16 SC137/02. Impact of the African Charter and the Maputo Protocol in selected African states 287 shown glaring paucity in the application have been decided on the merits and of these important regional human often against Zimbabwe.18 This goes a rights instruments. However, with the long way to showing that the African advent of section 46 of the 2013 Consti- Charter and Maputo Protocol are right tution, the interpretation clause which at the core of these internationally enjoins courts to prefer interpretations focused programmes and projects. consistent with international law, it is anticipated that more reliance will be Both organisations have submitted placed by courts on authoritative inter- shadow reports most notably in 2006 pretation of international human rights when Zimbabwe submitted her inaugu- instruments. Further, section 326 of the ral and combined report to the African Constitution now requires courts to Commission. The ZLHR worked tire- prefer interpretations that are consistent lessly in terms of preparing a shadow with customary international law, to the report that was submitted parallel to extent that it is not contrary to the 2013 Zimbabwe’s inaugural Universal Peer Constitution. Review (UPR) in 2011. Although this is before a United Nations mechanism, it 7 Awareness and use by civil indicates the extent to which some society1717 NGOs are reaching out in terms of utilising regional and international standards and human rights protection The African Charter and Maputo Proto- mechanisms. col are very well known in the NGO sector especially with respect to NGOs Other organisations such as the that have international human rights Zimbabwe Women Lawyers Associa- programmes. For instance, Zimbabwe tion (ZWLA) are increasingly getting Lawyers for Human Rights (ZLHR) has involved in utilising the African Charter an international litigation project and the Maputo Protocol in their through which they engage international projects and programmes especially human rights institutions and proce- after having been accorded observer dures. They have observer status before status by the African Commission.19 the African Commission hence orient Although they have been engaging and some of their projects around this area. utilising mainly national mechanisms and laws, observer status is clear testi- On its part, the Zimbabwe Human mony of their growing involvement in Rights NGO Forum focuses on ending human rights dialogue at the interna- impunity in the context of torture. After failing to secure effective remedies at national levels, the Forum has on sever- 18 Zimbabwe Human Rights NGO Forum v Zimbabwe (2006) AHRLR 128 (ACHPR al occasions approached regional mech- 2006). anisms such as the African Commission 19 Catholic Commission for Justice and Peace in Zimbabwe, African Bar Association, for relief. It has accordingly filed a Southern African Research and Documenta- number of communications before the tion Centre (SARDC), Zimbabwean Human Rights Association (ZIMRIGHTS), Legal African Commission, many of which Resources Foundation (LRF), Human Rights Trust of Southern Africa, Zimbabwe Human Rights NGO Forum, Media Moni- 17 Information gathered from interviews held toring Project, Zimbabwe Lawyers for with personnel from the NGO sector Human Rights (ZLHR), Zimbabwe Associa- especially Zimbabwe Lawyers for Human tion of Doctors for Human Rights (ZADHR) Rights and the Zimbabwe Human Rights and Zimbabwe Women Lawyers Associa- NGO Forum. tion. 288 Zimbabwe tional level. One has to bear in mind tion to issues of international concern. that the African Commission is the Instruments such as the UDHR, the oversight institution monitoring imple- African Charter and the ICCPR are mentation of the Maputo Protocol commonly cited and utilised as resource hence such organisations are drawing material in such workshops. For exam- near this Commission to influence its ple, between 24 and 27 June 2015, the role in monitoring national implementa- LSZ convened a workshop for lawyers tion. on economic, social and cultural rights where such rights in the African Charter 8 Awareness and use by practising were analysed from the perspective of and other lawyers20 African women, amongst other objec- tives. The approach ensured that dele- The Law Society of Zimbabwe (LSZ), gates made use of the Maputo Protocol to which every practising lawyer manda- to the extent that it represents the torily registers, oversees the legal profes- context of an African woman in relation sion in Zimbabwe especially through to some aspects of socio-economic and enforcing ethical conduct as well as cultural rights. negotiating for legal fee tariffs for vari- As regards reliance by lawyers on ous legal services. However, since the the African Charter and Maputo Proto- early 2000s with the deteriorating col in litigation, it has come up very human rights situation and disregard for clearly that only very few lawyers are rule of law on issues such as the land aware of the existence of the African reform programme, the LSZ has human rights system or any other increasingly been involved in advocacy human rights system in the world. The and litigation with an international root of this problem goes back to the flavour around these issues. This means fact that human rights as a module have that advocacy programmes initiated by only been recently introduced in univer- the LSZ together with continuing educa- sities’ curricula in Zimbabwe. Even so, tion initiatives for LSZ members, are the module remains elective and hence now being punctuated with reference to tends to slip through the fingers of many regional and international human rights lawyers. The interviews conducted in instruments and institutions. this area revealed that many lawyers do Illustratively, the LSZ now teams not take human rights as a career possi- up with prominent NGOs in the human bility on its own hence they leave it to rights sector in providing national work- human rights NGOs and activist shops on human rights litigation at the lawyers. national level targeting upcoming lawyers to consider human rights litiga- 9 Higher education and academic tion as a career. A close look at the writing content of these workshops has shown that there is a deliberate intention to There are only three law schools in introduce young lawyers to internation- Zimbabwe. The most established one is al human rights law, processes and at the Faculty of Law, University of procedures in a bid to draw their atten- Zimbabwe. The other ones, and relative- ly new, are at Midlands State Universi- 20 Based on information provided from the ty, Gweru, Zimbabwe and the Great LSZ advocacy and policy department. Impact of the African Charter and the Maputo Protocol in selected African states 289
Zimbabwe University in Masvingo. The and the Maputo Protocol among other law schools offer a module in human instruments. rights as an elective at the University of Zimbabwe and compulsory at Midlands 10 National human rights State University. It remains to be seen at institutions21 Great Zimbabwe University, which only enrolled its inaugural group of law The Zimbabwe Human Rights Commis- students in 2015. The content of the sion (ZHRC), created in terms of Chap- module includes the national bill of ter 12 of the 2013 Constitution, was first rights, the African human rights system established in 2009 following the adop- and the United Nations system for the tion of the Constitution of Zimbabwe promotion and protection of human Amendment 19. In 2012, the ZHRC rights. As a result, there is deliberate was operationalised when Parliament inclusion of the African Charter and the adopted the Zimbabwe Human Rights Maputo Protocol as part of the sources Commission Act. Notwithstanding of the catalogue of rights protected financial challenges facing the institu- therein. tion, it now has a full complement of secretariat to implement its In September 2015, the Midlands programmes. In 2015, the ZHRC State University launched a master of conducted the very first baseline survey laws programme entitled LLM in of the human rights situation in Zimba- Constitutional Law and Human Rights. bwe in order to inform its Strategic Plan One of the core-modules of the degree going forward. programme is Advanced Human Rights. The curriculum discusses the Maputo Bearing in mind that the ZHRC Protocol extensively under the legal must still fully open its doors to the framework of the African human rights public, in terms of involvement in a system. Further, one of the electives of variety of complaints, it is premature to the degree programme is a module on discuss the content of its programmes in Women’s Law in which the Maputo as much as they relate or make reference Protocol is exclusively relied upon in the to the African Charter or the Maputo African context. Protocol. However, one can conclude that the ZHRC will most likely engage There is no evidence of formal these international human rights instru- academic publications in Zimbabwe, ments in view of the provisional refer- except for Zimbabwean authors who ence in its 2015 Strategic Plan to tend to publish in international journals ‘international human rights’ ratified and for lack of publishing opportunities in domesticated in Zimbabwe. Now, the country. The Midlands State taking into account that the African University has recently launched an Charter is already part and parcel of the online law review known as Midlands Zimbabwean legal system and the State University Law Review, which ZHRC’s proposed mandate of assisting focusses on legal issues of relevance to Zimbabwe. This is a platform on which 21 This part of the report was prepared from the many local lawyers and authors have information gathered from interviews with started to share ideas. Invariably, such UNDP Zimbabwe officials, which organisation is involved in capacity building discussions include the African Charter initiatives with the Human Rights Commission in order to adequately prepare as it looks ahead to commence its mandate. 290 Zimbabwe in the preparation of state reports, one servants represent these government can only hope that both instruments will ministries and departments in the Inter- play a central role in the ZHRC's ministerial Committee. programmes. Using the last state party report that 11 State reporting Zimbabwe submitted to the African Commission as an example, the process of preparing state reports is initiated by In 1994, the government of Zimbabwe the IMC Secretariat which is hosted by established the Inter-ministerial the Ministry of Justice. The secretariat Committee on Human Rights and produces a first draft which is then Humanitarian Law (IMC) with the shared with the entire IMC. The IMC is mandate to carry out various human organised through sub-committees with rights functions on behalf of the govern- various expertise and knowledge on ment. Amongst its responsibilities are different issues. It is the responsibility of the writing of state party reports to these sub-committees to give further different treaty monitoring bodies, details, analysis and information includ- dissemination of concluding observa- ing statistics from different government tions and following up on recommenda- ministries and departments on each of tions of treaty bodies as well as advising the issues under the African Charter that government on which human rights the government will be reporting on. instruments to accede to.22 The IMC is Once a substantive first draft has been comprised of 22 government ministries developed, the report is shared with and departments and is hosted by the members of civil society and other Department of Policy and Legal government departments that are not Research under the Ministry of Justice involved in the preparation of the draft and Legal Affairs which is its secretari- as well as independent bodies and at. Important and relevant departments commissions. The sharing of the report such as the army, police, security, is the beginning of a consultative gender, health, the ombudsman and process where the Inter-ministerial justice are part of the Committee. The Committee will hold meetings with setting up of the IMC was applauded by different stakeholders to seek their input various treaty monitoring bodies that and in some cases written submissions Zimbabwe reports to such as the are made by stakeholders. Committee on the Rights of the Child, Committee on the Elimination of Racial Based on the input from stakehold- Discrimination and the Committee on ers, further drafts of the report are the Elimination of all Forms of Discrim- prepared until a final draft is passed on ination against Women.23 Senior civil to Cabinet through the channels of the Ministry of Justice for approval before 22 Zimbabwe reported on the setting up of this Committee to the African Commission on submission to the African Commission. Human and Peoples’ Rights in its Second The final report is shared with civil soci- report submitted in 1997 http://www. achpr. org/english/Archives/State%20reports/eng ety to enable them to prepare their shad- /Zimbabwe/Zimbabwe_2_eng.pdf. ow reports. (accessed 26 November 2015). 23 Concluding observations for each of these treaty bodies applauding Zimbabwe on the The state through the relevant creation of the Inter-ministerial Committee are available at http://www.ohchr.org/EN/ department in the Ministry of Justice countries/AfricaRegion/Pages/ZWIndex and Legal Affairs disseminates the .aspx. (accessed 26 November 2015). Impact of the African Charter and the Maputo Protocol in selected African states 291 concluding observations. The main on Preventing and Combating Corrup- targets for dissemination are members of tion. the IMC and relevant government departments and ministries with a The African Commission recom- responsibility to implement, take action mended the government of Zimbabwe or make follow ups on the concluding to incorporate socio-economic rights in observations and recommendations of its constitution. As discussed above, this the African Commission. There seems feat has since been achieved following to be no set out process by civil society adoption of the 2013 Constitution. or government to disseminate the Through the Government of National concluding observations to the general Unity, steps are now being taken to public. amend the media laws in Zimbabwe and in particular the Access to Informa- The government of Zimbabwe has tion and Protection of Privacy Act as received several Concluding Observa- well as security laws such as the Public tions based on the three periodic reports Order and Security Act. This forms part that it has submitted so far to the Afri- of an on-going legislative reform and can Commission. This section looks at review process in the aftermath of the some of the concluding observations 2013 Constitution. issued by the African Commission in respect of the second periodic report Overall, some of the concluding which was presented and considered in observations of the African Commission 2007. Steps have been taken to give relate to legislative and institutional effect to some of the observations reforms which still remain contentious although no measures have been taken issues within the political context of the in respect of the others. country. As a result of disagreement, the never ending impasse and horse trading In respect of the recommendation to between parties has stalled a number of expedite the establishment of a human reforms that could see an improvement rights commission, Zimbabwe passed a in human rights, rule of law and inde- constitutional amendment legislation in pendence of the judiciary. 2009 creating the ZHRC. Commission- ers for the human rights body were 12 Communications appointed in May 2010. However, the enabling legislation, the Zimbabwe From around 2000, there has been an Human Rights Commission Bill, has upsurge of communications filed against still not yet been passed into law due to Zimbabwe because of the deteriorating disagreements on some of the provisions human rights situation in the country. A between the two feuding political parties total of seven communications were in the Unity Government. filed and decided upon between 2002 and 2011.24 In four of these communi- Zimbabwe ratified the Maputo cations, the African Commission found Protocol in 2008, in response to the that the government of Zimbabwe had African Commission’s concluding violated provisions of the African Char- observations. However, the country has ter and recommendations were made for still not acceded to other key instru- ments such as the Protocol establishing the African Court and the Convention 24 Index to the African Human Rights Law Reports. 292 Zimbabwe redress including payment of compensa- recommendations has been implement- tion and repeal or amendment of laws. ed. The findings and recommendations of the African Commission have not been In the case of Zimbabwe Lawyers for widely publicised beyond a few reports Human Rights & Associated Newspapers of 26 in the media and dissemination within Zimbabwe v Republic of Zimbabwe, the the circle of human rights organisations. African Commission found the state to The cases and their findings are not be in violation of articles 9(2), 14 and 15 widely known within broader Zimba- of the African Charter and recommend- bwean civil society. ed the government of Zimbabwe to provide adequate compensation to the The Ministry of Justice and the complainants for losses incurred due to Attorney General’s department repre- the violations. In another case, Scanlen sent the state in communications. When & Holderness,27 the African Commission findings and recommendations are found Zimbabwe to be in violation of made against the state, the Ministry of several articles of the African Charter Justice submits these to the relevant and recommended that the government government ministry or department take several actions amongst them being affected by the decision. There is no (i) repealing sections 79 and 80 of the wide publication or dissemination of the Access to Information and Protection of findings and recommendations broadly Privacy Act (AIPPA); (ii) decriminalis- within government beyond the ing offenses relating to accreditation and concerned departments. the practice of journalism; (iii) adopting legislation providing a framework for While several recommendations self-regulation by journalists; and have been made, few steps have been (iv) bringing AIPPA in line with article taken to give effect to these. For exam- 9 of the African Charter and other prin- ple in the case of Zimbabwe Lawyers for ciples and international human rights Human Rights and the Institute for Human instruments. Rights Development (on behalf of Andrew Barclay Meldrum) v Republic of Zimba- In the fourth case of Zimbabwe bwe,25 the African Commission in 2009 Human Rights NGO Forum v Zimbabwe,28 found Zimbabwe to be in violation of the African Commission held that articles 1, 2, 3, 7(1)(a) and (b), 9, 12(4) Zimbabwe was in violation of articles 1 and 26 of the African Charter. The Afri- and 7(1) of the African Charter and can Commission recommended recommended the establishment of a amongst other things that the govern- commission of inquiry to investigate the ment of Zimbabwe should rescind the causes of the violence which took place deportation orders against Mr Andrew from February to June 2000. It further Meldrum, and ensure that the Supreme recommended bringing those responsi- Court finalises the determination of the ble for the violence to justice, and identi- application by Mr Meldrum on the deni- fying victims of the violence in order to al of accreditation as a journalist. provide them with just and adequate However, none of these findings and compensation. The author is aware that the government of Zimbabwe neither
25 Communication 294/2004. Article 19 and 26 Communication 284/2003. Others v Zimbabwe (2010) AHRLR 126 27 Communication 297/2005. (ACHPR 2010). 28 Communication 245/2002. Impact of the African Charter and the Maputo Protocol in selected African states 293 established a commission of inquiry into Since the Mission, Zimbabwe has the violence nor took other steps to taken some measures to restore inde- redress the human rights violations that pendence of the judiciary and respect for took place during that time. In fact, an the rule of law, though these measures amnesty law for perpetrators of the have not been adequate to instil public political violence which was passed in and stakeholder confidence at national, 2000 remains in force in the form of regional and international levels. In Clemency Order 1 of 2000. 2006, the Minister of Justice, Chief Justice of Zimbabwe and other senior 13 Special mechanisms and judges of the Supreme and High Courts promotional visits of African met with members of civil society Commission including the LSZ for the first time since 2000 to discuss issues of the rule of law and the impasse between the civil socie- In 2002, the African Commission sent a ty and the judiciary. Between 2006 and special fact finding mission to Zimba- 2007, the Judiciary and the Ministry of bwe to investigate the cases of human Justice were part of a UNDP – Zimba- rights abuses after the holding of Presi- bwe ‒ lead process to assess the capacity dential elections which were marred needs of the Judiciary in Zimbabwe and with high levels of political violence.29 an analysis of the issues of rule of law The purpose of the mission was to gath- and independence of the judiciary. er information on the state of human Government showed goodwill in agree- rights in Zimbabwe. The Mission report ing to table and discuss these issues with noted the flurry of repressive legislation stakeholders. Though this was a positive such as the Public Order and Security response to the recommendations of the Act of 2002 (POSA) and the Access to Mission and other regional and interna- Information and the Protection of Priva- tional bodies, other challenges in this cy Act of 2002 (AIPPA), both of which area have continued, such as the selec- stifled democratic space and freedom of tive application of law which saw many expression in Zimbabwe. Based on these opposition party leaders arrested, and other observations on the rule of detained and tried. Political gatherings law and independence of the judiciary, of the opposition party were not allowed the Mission report made several recom- under POSA and were often disrupted. mendations to the government of 30 Zimbabwe. Through Constitutional Amend- ment 19 of 2009, Zimbabwe ultimately established two significant independent 29 The Fact Finding Mission was from 24-28 June 2002 after a decision was made by the bodies which are the Zimbabwe Elector- African Commission to undertake this al Commission and the ZHRC. This mission at its 29th Ordinary Session which was held in Tripoli in April of the same year. came almost three years after the recom- 30 Working on national dialogue and mendations of the fact finding mission reconciliation across the political divides; Creation of an environment conducive for and in the context of further highly democracy and human rights through contested elections of 2008, the creation repealing of the AIPPA and POSA and abiding by court judgments; Restoring rule of the Unity government and increasing of law and respect of independence of the judiciary; Establishment of an independent human rights body and an Independent 30 Zimbabwe was behind in terms of its Electoral Commission in the place of the reporting obligations and was reminded to Electoral Supervisory Commission, which submit outstanding reports under the African was viewed as highly compromised; Charter. 294 Zimbabwe national, regional and international Fact-finding Mission to Zimbabwe pressure for legislative and institutional between 30 June and 4 July 2005. This reform. Mission was not carried out after failure of negotiations with the Zimbabwe The increased cases of human rights government. The Ministry of Foreign abuses and violations in Zimbabwe Affairs in Zimbabwe requested the especially between the period 2000 and Special Rapporteur to leave the coun- 2008 attracted both international and try.32 regional attention. Civil society in Zimbabwe worked hard to highlight In December 2005, the African these abuses and bring attention as well Commission passed a resolution on the as remedies. One of the forums and human rights situation in Zimbabwe mechanisms that was widely utilised urging the government of Zimbabwe to was the African Commission. As a implement the recommendations in the result of this, the African Commission July 2005 Report of the UN Special attempted during this period to engage Envoy on Human Settlement Issues, in its special mechanisms on Zimbabwe, particular to ensure full and unimpeded though with limited success. For exam- access for the provision of aid and ple, after operation Murambatsvina (a protection to the victims of the forced government clean-up exercise to rid the evictions and demolitions by impartial major cities of illegal vendors, buildings national and international humanitarian and squatters amongst others) in June agencies and human rights monitors, 2005, the African Commission’s Special and to ensure that those responsible for Rapporteur on Refugees, Asylum Seek- the violations are brought to justice ers and Internally Displaced Persons, without delay. The 2005 resolution also Commissioner Nyanduga issued a state- called on the government of Zimbabwe ment, expressing his concerns on the to respect human rights by repealing or operation. He urgently appeal to the amending repressive legislation, such as government of Zimbabwe the Access to Information and Protec- tion of Privacy Act, the Broadcasting To halt the eviction and demolition exer- Services Act and the Public Order and cise, and assist the victims of the opera- Security Act. tion, by providing them with humanitarian assistance in the form of temporary shelter, accommodation, In June of 2007, the Special Rappor- water, food, medicines and other forms teur of the African Commission on of assistance, while looking for an Human Rights Defenders in Africa, Ms amicable solution to the illegal settle- Reine Alapini-Gansou issued a press ments and squatter problem in a manner statement in which she expressed that upholds the dignity of the individu- als and the families, which have become particular concern around the alleged victims of the ... operations.31 acts of violence and harassment of human rights defenders in Zimbabwe. As a follow up to this action, the Special Her press statement was in particular Rapporteur was then requested by the reference to the unlawful arrest and African Commission to undertake a detention of members of the Women of Zimbabwe Arise grouping. The Special 31 Nineteenth activity report of the African Rapporteur urged the Zimbabwean Commission (2005) 12 http://www.chr. up.ac.za/test/images/files/documents/ahrd d/theme02/african_commission_19th_activi ty_report.pdf (accessed 1 October 2015). 32 As above. Impact of the African Charter and the Maputo Protocol in selected African states 295 authorities to take all necessary meas- cal rights as provided for in the 2013 ures to guarantee the freedom of human Constitution. The human rights situa- rights defenders in Zimbabwe to carry tion in the country has not improved out their work as human rights defend- since the record low attained at the turn ers. of the millennium. Freedoms such as expression including artistic expression In addition to these special mecha- and association continue to be muzzled nisms’ engagements, the African by repressive laws that criminalise utter- Commission has issued several resolu- ances regarded as undermining govern- tions on the human rights situation in ment, police or the President’s Zimbabwe. The following are only a authority. few examples. In and around the period of the highly contested presidential elec- The adoption of the Maputo Proto- tion in Zimbabwe in 2008, the Commis- col in the National Gender Policy sion passed statements and resolutions heralds improvement in the impact of expressing its concerns over the human this instrument. Women’s rights are rights violations occasioned by the regarded as the least contentious in violence that followed the March 2008 Zimbabwe; hence their realisation is elections.33 Prior to these highly contest- often supported even by politicians. On ed elections, the Commission passed a their part, women’s rights based organi- resolution in which it urged the govern- sations as well as UN Women continue ment to ensure the holding of a free and to provide technical and in some cases fair election.34 financial support to the government to meet its obligations regarding gender 14 Factors that may enhance or mainstreaming in the work place as well impede the impact of the as society at large. African Charter, the Maputo On its part, the African Commission Protocol and the African suffers from the general negative atti- Commission tude of government towards internation- al institutions. This attitude of resenting Many of the factors affecting the impact international oversight is reflected in the of the two instruments as well as the government of Zimbabwe's treatment of African Commission have been the SADC Tribunal and its unwilling- discussed in other parts of this report. ness to ratify the Protocol on the Afri- As stated earlier, many of the obliga- can Court. It then follows that unless tions contained in the African Charter this attitude changes, it would be critical have been domesticated through the Bill for interventions to utilise other options of Rights of the 2013 Constitution of engaging the state to ensure that except the right to asylum. By and large, provisions of the African Charter and the government still struggles in ensur- Maputo Protocol are given effect in ing that all citizens enjoy civil and politi- Zimbabwe.
33 See African Commission Resolution 132 adopted at the 43rd ordinary session of the 15 Conclusion African Commission, Ezulwini, Swaziland; 7-22 May 2008. 34 See African Commission Resolution 128 By and large, the African Charter and adopted at the 42nd ordinary session of the Maputo Protocol are popular interna- African Commission in Brazzaville, Republic of Congo, 2007. tional human rights instruments in 296 Zimbabwe
Zimbabwe. Their impact is low but the instruments continue to take root in the legal system through the efforts of influ- ential partners such as development agencies and civil society organisations. The 2013 Constitution is a timely contri- bution to this process, to the extent that it provides for a robust approach to human rights and makes radical changes to the legal framework. The Bill of Rights is central to all decision-making and legislative interpretation. Gender mainstreaming in all spheres of life is now a national objective. All these changes can only result in better protec- tion of human rights through the Afri- can Charter and Maputo Protocol. CONCLUSION, SUMMARY OF FINDINGS AND RECOMMENDATIONS
Victor Oluwasina Ayeni*
1 Introduction effect in all states. Rather, their effects have been conditional on a combination This book is a modest contribution of of factors, including state level charac- the Centre for Human Rights, through teristics, the nature of the treaty and the its alumni network, to the debate on the level of interaction, persuasion and pres- domestic impact of regional human sure applied on state actors by domestic rights treaties in Africa. Given the sheer and international compliance partner- number of regional human rights instru- ships. ments in Africa and the practical and logistical challenges of undertaking a With regard to the theory of compli- continent-wide study, the book assesses ance with international law that best the impact and effectiveness of only two explains the domestic effects of the Afri- regional human rights instruments – the can Charter and Maputo Protocol in the African Charter and the Maputo Proto- 17 selected states, evidence from the col – in 17 African countries, namely, country chapters tends towards modern Burkina Faso, Cameroon, Côte d’Ivoire, constructivism, a synthesis of traditional normative theory and rational choice Ethiopia, The Gambia, Ghana, Kenya, 1 Lesotho, Malawi, Mauritius, Nigeria, models. Each of the studied states Sierra Leone, South Africa, Swaziland, demonstrates a normative sense of obli- Tanzania, Uganda and Zimbabwe. gation to abide by the provisions of the African Charter and the Maputo Proto- Evidence obtained from the 17 col yet some willingness to exploit vari- countries suggests that the African Char- ous instrumental and cost-saving 2 ter and the Maputo Protocol have had a options to comply as little as possible. modest yet significant impact in each of In addition to material inducements, the selected countries. The two instru- normative considerations – such as the ments, however, do not have the same persuasive power of human rights obli-
1 See ES Bates ‘Sophisticated constructivism in human rights compliance theory’ (2015) 25 European Journal of International Law 1170. 2 See A von Staden ‘Rational choice within * LLB (Akungba-Akoko), BL (Abuja), LLM normative constraints: compliance by liberal HRDA (Pretoria), doctoral candidate, Centre democracies with the judgments of the for Human Rights, University of Pretoria. European Court of Human Rights’ SSRN Email: [email protected]. eLibrary, 6 February 2012.
297 298 Conclusion gations imposed by the two instruments, One of the major findings of this repeated transnational interactions, study is that it is insufficient to create argumentation and continuous exposure awareness about the African Charter or to international human rights norms – the Maputo Protocol or to translate sometimes play a significant role in provisions of these instruments into cases where effect was given to provi- local languages. The African Charter sions of the African Charter and the and the Maputo Protocol have maximal Maputo Protocol in the selected states. impact when policy makers, legislators, judges and members of civil society The evidence in this book supports organisations are aware of the jurispru- at least three major theories of compli- dence of the African Commission and ance with international law: the domes- other human rights bodies in respect of tic politics theory, transnational legal these instruments and know how to process theory and the ‘spiral model of demand and apply relevant provisions human rights change’ as developed by in their own contexts. The jurisprudence 3 Risse, Ropp and Sikkink. Domestic of monitoring bodies breathes life into actors – policy makers, legislators, judg- human rights provisions. es and domestic civil society organiza- tions – are the primary drivers of impact Findings from the various country of the African Charter and the Maputo chapters point to at least one conclusion Protocol in all the selected states. – that awareness is central to improving Repeated interaction between state and the impact of the African Charter and non-state actors in domestic and inter- the Maputo Protocol at the domestic national fora is responsible for height- level. More than anything else, ‘bring- ened treaty impact in all the 17 studied ing’ the African Charter or the Maputo states. Protocol ‘home’ requires taking it to the people for whose benefit the instruments Evidence from most of the country were adopted. It is not all right to chapters also reveals that the African complain that governments are not Charter and the Maputo Protocol have implementing decisions of the African their greatest impact during political Commission when the people who have transition, especially in new democra- the power to challenge governments are cies. The findings of this study are also not empowered with the requisite consistent with the view of Murray and knowledge and skill to do so. The gap Long that human rights treaties will between the promise of the African have their most significant impact if Charter and the Maputo Protocol on the 4 they have ‘added value’, that is, if one hand and government’s perfor- recourse to them will provide a remedy mance on the other hand will be filled that cannot otherwise be realised only through knowledge-based and skill- through a domestic human rights frame- driven awareness programmes. Aware- work. ness has the ability to put international human rights on ‘auto-pilot:’ when citi- zens are well-informed, they will go to 3 T Risse, SC Ropp & K Sikkink The persistent parliament to domesticate treaties and power of human rights (2013); T Risse, SC Ropp incorporate treaties in judicial decisions. & K Sikkink The power of human rights (1999). 4 See R Murray & D Long The implementation of the findings of the African Commission on Human One of the country chapters reports and Peoples’ Rights (2015) 10-26; BA Simmons an instance where a member of the Mobilising for human rights (2009) 125. Impact of the African Charter and the Maputo Protocol in selected African states 299
Constitution Review Committee in Sier- should not remain subordinate to ra Leone admitted ignorance of the Afri- national constitutions. The judiciary, can Charter and the Maputo Protocol not parliament, is the most likely place prior to being appointed to the commit- for these transformative thoughts to tee. In another instance, a judge in Ethi- begin. opia also admitted to not having used the African Charter in over two decades 2 Summary of study findings of judicial service. These are not isolated examples; they are a representative (a) Ratification sample of the level of awareness of the African Charter, Maputo Protocol and In all the countries studied, the Presi- jurisprudence of the African Commis- dent is responsible for negotiating, sign- sion. However, these instruments and ing and ratifying international human jurisprudence are popular with civil rights treaties on behalf of the state. society organisations working in the Ratification of international treaties is a field of human rights and also, although two-stage process. It has both external less so, among policy makers, legislators and internal dimensions.5 While the and ordinary citizens. internal dimension depends on national processes, the international dimension In the years to come, the judiciary involves the transmission of the instru- remains the most important state institu- ment of ratification.6 In some countries, tion for the internalisation of human such as Nigeria and Lesotho, the rights norms. The chances of getting processes are merged into one and parliaments in every country to directly carried out by the President or any other domesticate each and every human officer duly designated for that rights instrument is quite slim, and the purpose.7 In all monist states, and in probative value of a blanket ‘constitu- some dualist states, such as Ethiopia, tional’ domestication (as is the case in Mauritius, South Africa, Tanzania, Kenya and many monist states) has not Zimbabwe and Swaziland, external rati- been tested empirically. In order to put fication by the President must be preced- the judiciary in a position where it can ed by an ‘internal process of ratification’ freely internalise international human by parliament. In other word words, rights norms, there is a need for African ratification of international treaties must countries to borrow a leaf from South be approved by parliament before the Africa and Côte d’Ivoire. Following the instrument of ratification is transmitted example of South Africa, national to the relevant international organisa- constitutions in every country in Africa tion. should impose an obligation on courts to consider international law when There is wisdom in involving parlia- interpreting bills of rights. In Côte ment in the process of treaty ratification. d’Ivoire, ratified international treaties The traditional role of the executive arm have a higher status than the constitu- of government is to implement laws tion. It is also recommended that courts in Africa should revisit the supremacy 5F Viljoen International human rights law in arguments earlier advanced by Nigerian Africa (2012) 24. 6As above. courts. Duly ratified treaties should be 7 It must be noted that the Nigerian superior to domestic laws, and princi- government is currently reviewing her laws to involve the parliament formally in the process ples of international human rights law of treaty ratification. 300 Conclusion while a parliament makes law. It would (b) Designation of government amount to usurpation of legislative func- focal points tion if ‘rule-making’ treaties, ratified solely by the executive arm of govern- The African Commission, at its 13th ment, are made part of the national law ordinary session, recommended to the without passing through legislative OAU Assembly of Heads of States and process. In order to make treaties direct- Governments (now the AU Assembly) ly applicable at the domestic level, it is that all state parties to the African Char- fundamental that parliament should be ter designate high ranking officials in involved prior to ratification. This is the their respective countries to act as Focal only legitimate way to break the dualist Points in the relations between the Afri- tradition. can Commission and state parties.10 The OAU Assembly approved this In all Francophone countries select- recommendation at its 29th ordinary ed for the study, parliamentary internal session in 1993,11 and since then, sever- ratification processes are complemented al state parties have designated focal by a compatibility analysis carried out points. The focal point for the African by the apex court before the executive Charter in the majority of countries arm of government can proceed with studied is the Ministry of Justice, while external ratification. For example, a the Ministry of Women's Affairs is compatibility study was carried out in usually responsible for the Maputo Burkina Faso prior to ratification of the Protocol. However, in Burkina Faso, Maputo Protocol in 2006. A process the Ministry of Justice is responsible for close to a compatibility study was both the Charter and the Protocol. In undertaken prior to ratification of the Cameroon, Ethiopia and Ghana, the 8 Maputo Protocol in South Africa. Ministry of Foreign Affairs is the focal point for both instruments while in Côte The official reason for ratification of d’Ivoire, a fully-fledged ministry has the African Charter was not publicly been dedicated for human rights. This available in all the countries studied. ministry handles communication However, what is clear is that African between Côte d’Ivoire and the African states, most of which were under dicta- Commission. torial regimes at the time, ratified the African Charter and other international human rights instruments as a result of international pressure demanding domestic reform.9 Since the adoption of the Maputo Protocol is more recent, a 10 Sixth Activity Report of the African few governments have publicly provided Commission (1992-1993) 105-106; See their reasons for ratifying the Protocol. VO Ayeni ‘Domestic impact of the African Charter on Human and Peoples’ Rights and For instance, the government of Burkina the Protocol on the Rights of Women in Faso claimed it ratified the Maputo Africa: a case study of Nigeria’ unpublished LLM Dissertation, University of Pretoria Protocol ‘to advance women’s rights’. 2011 23. 11 Resolution on the African Commission on Human and Peoples' Rights, Twenty-Ninth Ordinary Session of the Assembly of Heads of State and Government of the Organization of 8 https://pmg.org.za/committee-meeting/101 African Unity, 28-30 June 1993, Cairo, Egypt 81/ (accessed 31 August 2015). available at http://www1.umn.edu/human 9 See KO Kufuor The African human rights rts/africa/resafchar29th.html (accessed system: Origins and evolution (2010). 28 November 2015). Impact of the African Charter and the Maputo Protocol in selected African states 301
(c) Domestication countries guarantee basic civil and polit- ical rights. In most cases, constitutional Domestication of international human guarantees are co-extensive with provi- rights treaties may take place at two sions of the African Charter on civil and levels: directly through incorporation or political rights, although some notable indirectly through transformation.12 inconsistencies exist. For instance, the While incorporation is the wholesale Constitution of Lesotho does not enactment of the provisions of a treaty, expressly recognise the right to dignity. usually with specific reference to the In Mauritius, there is no constitutional treaty being incorporated,13 transforma- protection of the right to integrity and tion occurs where treaty norms influ- security of the person and freedom from ence a legislative enactment or cruel punishment, among others. Only amendment without explicit reference to South Africa and Kenya have justiciable the treaty.14 socio-economic rights in their Bills of Rights. In Nigeria, Lesotho, and Sierra Nigeria is the only Anglophone Leone, socio-economic rights are under state under study to have directly the Directive Principles of State Policy. domesticated the African Charter.15 The The rights of peoples to self-determina- African Charter and the Maputo Proto- tion, development, culture and language col are part of the domestic law in are constitutionally recognised and Burkina Faso, Cameroon, Côte d’Ivoire guaranteed only in Ethiopia. and Kenya. Technically, these countries do not require domestication for duly In Côte d’Ivoire, the African Char- ratified international treaties to be appli- ter, Maputo Protocol and other duly cable within their territories. Although ratified international treaties have a the constitutions of the four countries higher status than the constitution. Trea- listed above stipulate the monist ties have a status higher than ordinary approach to domestic application of legislation, though equal to the constitu- international treaty standards, a deep tion, in Ethiopia. In Nigeria, duly rati- culture of dualism prevails in practice in fied treaties are superior to ordinary those countries. legislation but lower in status than the constitution. In South Africa, national With the exception of Kenya, and to laws are superior to international law. some extent, Nigeria, all dualist coun- An argument was made in respect of tries in the study followed the path of Nigeria where the author noted that in a indirect domestication with regard to limited number of cases, it is possible for the African Charter and the Maputo provisions of duly ratified international Protocol. Indirect domestication, other- treaties to be directly applicable in Nige- wise referred to as ‘transformation’, ria prior to domestication. occurs where treaty norms influence a legislative enactment or amendment (d) Legislative reform and without explicit reference to the treaty. adoption The constitutions of most of the studied No compatibility studies were reported 12 J James-Eluyode ‘Enforcement of interna- to have been carried out in any country tional humanitarian law in Nigeria’ (2003) 3 African Human Rights Law Journal 266. prior to adoption of the African Charter. 13 Viljoen (n 4 above) 536. However, more recently, laws in Burki- 14 As above. 15 Viljoen (n 4 above) 529. na Faso, Cameroon and Côte d’Ivoire 302 Conclusion require the apex courts of those coun- Rights. For instance, the provisions of tries to undertake a compatibility analy- the African Charter which relate to pres- sis before a treaty can be ratified. As ervation of family values were cited such, the constitutional court of Burkina often. Faso issued a legal opinion in 2006 confirming that the Maputo Protocol The provisions of the African Char- was in conformity with the country’s ter and the Maputo Protocol did not constitution. A process close to a influence the constitution or subsequent compatibility study was undertaken amendments, to date, in South Africa. prior to ratification of the Maputo None of the seventeen Constitutional Protocol in South Africa.16 Amendment Acts adopted since the 1996 Constitution came into force have Legislative reform to give effect to altered the provisions of the Bill of the African Charter and the Maputo Rights. However, during public hearings Protocol are mostly implicit. However, on the Women Empowerment and direct causal relationships were estab- Gender Equality Bill in 2014, civil socie- lished in a number of instances between ty organisations in South Africa request- the African Charter and the Maputo ed that the Maputo Protocol be included Protocol on the one hand and some under the bill’s objectives.17 Equality domestic legislative and policy reform provisions of the Maputo Protocol were on the other. For instance, in Nigeria, also invoked during public hearings on decisions of the African Commission the Traditional Courts Bill, in Septem- were used by civil society organisations ber 2012, to challenge certain discrimi- and other activist forces to pressure natory provisions.18 government to repeal or amend some military decrees which violated provi- In The Gambia, the long title of the sions of the African Charter. A letter Women’s Act states that it was enacted written to the Speaker of the Burkinabe to incorporate and give effect to the Parliament by Salamata Sawadogo, a provisions of CEDAW and the Maputo 19 Burkinabe who was then the Chairper- Protocol. There is also strong evidence son of the African Commission, was pointing to the fact that the Legal Aid reported to have played a significant Act of The Gambia was enacted to give advocacy role in the adoption of legisla- effect to the African Charter. The tion allocating gender-based quotas for Maputo Protocol played a crucial role parliamentary and local elections in during the formulation of gender Burkina Faso. justice laws in Malawi. A Bill to domesticate articles 1-24 of the Maputo Paragraph 8 of the Preamble to the Protocol in Nigeria was being debated Constitution of Burkina Faso expressly refers to the African Charter as an inte- gral part of the constitution. During the review process that led to the adoption 17 https://pmg.org.za/tabled-committee-report /2202/ (accessed 31 August 2015). See also of the Kenyan Constitution in 2010, the http://pmg-assets.s3-website-eu-west-1.ama African Charter is reported as featuring zonaws.com/140129cals.pdf (accessed 13 September 2015). prominently in discussions on the Bill of 18 Report of the Select Committee on Security and Constitutional Development on the Traditional Courts Bill (2012); https:// pmg.org.za/tabled-committee-report/286/ 16 https://pmg.org.za/committee-meeting/101 (accessed 31 August 2015). 81/ (accessed 31 August 2015). 19 See Long Title, Women’s Act of 2010. Impact of the African Charter and the Maputo Protocol in selected African states 303 in parliament as at the time of compiling Populations and Communities22 to this report.20 develop strategies for the public health needs of marginalised and vulnerable (e) Policy reform groups in Kenya. The African Charter is also reported to have played a role in While a number of national policies the formulation of the National HIV/ have been adopted and give effect to the AIDS Policy in Malawi. Similarly, the provisions of the African Charter and National Gender and Empowerment the Maputo Protocol across all 17 states Policy Framework of The Gambia under study, these policies seldom refer- expressly referenced the Maputo Proto- ence either the African Charter or the col and the National Gender Policy of Maputo Protocol specifically. However, Swaziland also articulates that its in Nigeria and Zimbabwe, direct influ- contents were guided by provisions of ence of the African Charter is noted in the African Charter and Maputo Proto- 23 the National Action Plan for the Promo- col. tion and Protection of Human Rights as well as in the National Gender Policy. (f) Judicial decisions The Nigerian National Action Plan and Gender Policy make reference to the Researchers were unable to find refer- African Charter and the Maputo Proto- ences to the African Charter or Maputo col several times. Most of the countries Protocol in decisions of domestic courts studied have policies on poverty reduc- in Cameroon, Côte d’Ivoire, Burkina tion and HIV/AIDS prevention and Faso and Mauritius. The jurisprudence treatment, among others. Côte d’Ivoire of the African Commission has also not went as far as appointing a government been used or referred to in any court minister for HIV/AIDS. The Draft decision in Francophone Africa. The White Paper on Remand Detention African Charter, Maputo Protocol and Management of the Department of jurisprudence of the African Commis- Correctional Services in South Africa sion have been most impactful on judi- makes reference to articles 4, 5, 6 and 7 cial activities in Anglophone Africa, of the African Charter.21 particularly, Ghana, Kenya and Nigeria.
The Ministry of Public Health and Courts in Nigeria and Kenya have Sanitation in Kenya is reported to have directly invoked article 24 of the African used the report of the African Commis- Charter to protect citizens against envi- sion’s Working Group on Indigenous ronmental pollution. Kenyan courts have also made reference to the African Commission’s Guidelines on Fair Trial 20 See Nigeria’s Fourth Periodic Country as an authoritative interpretation of the Report: 2008-2010 on the implementation of the African Charter on Human and Peoples’ obligations of Kenya under the African Rights in Nigeria (2011) 5; Nigeria’s Fifth Periodic Country Report: 2011-2014 on the implementation of the African Charter on Human and Peoples’ Rights in Nigeria (2014) ii & 2. 22 African Commission ‘Report of the African 21 Department of Correctional Services ‘Draft Commission on Human and Peoples’ Rights White Paper on Remand Detention Manage- Working Group of Experts on Indigenous ment in South Africa’ 2013. http://www.dcs. Populations/Communities’. gov.za/docs/landing/White%20paper%20on 23 http://www.undp.org/content/dam/swazila %20Remand%20Detention%20in%20SA%20 nd/docs/publications/UNDP_SZ_Gender Draft%20Final.pdf (accessed 13 September _SwazilandNational Gender Policy2010.pdf 2015). (accessed 25 August 2105). 304 Conclusion
Charter.24 In Rono v Rono, the Court of Action Campaign30 and Mazibuko,31 the Appeal of Kenya held that customary Constitutional Court failed to cite rele- laws of intestate succession, which vant provisions of the African Charter disinherited women, contravene article or the socio-economic rights jurispru- 18 of the African Charter. In Nigeria, dence of the African Commission.32 the African Charter has been referenced South African courts have a duty to in more than 70 decided cases, often25 consider international law, including as a basis for remedy, interpretive guid- African regional human rights instru- ance or as a legal source of legitimacy. ments, when interpreting the Bill of Rights. The South African Constitutional Court in National Commissioner of the In the Swaziland case of Fakudze v South African Police Service v Southern Afri- The Director of Public Prosecutions,33 the can Litigation Centre and Others,26cited domestic court referred to the Principles article 5 of the African Charter and the and Guidelines on the Right to a Fair African Commission’s interpretation of Trial, adopted by the African Commis- that article in the case of Huri-Laws v sion, and relied on it as an interpretative Nigeria.27 South African courts have guide. While interpreting the right to relied most heavily on the African Char- legal representation in the case of DPP v ter’s provisions relating to rights and Sole,34 a Lesotho court made reference duties in the context of the family. In to article 7(1) of the African Charter as part, this is because the South African interpretive aid.35 In Judicial Officers Constitution has no provisions on the Association of Lesotho v The Prime Minis- right to freely marry and raise a fami- ter,36 a Lesotho court referred to article ly.28 It is, however, unfortunate that in 7 and 26 of the African Charter. While most of the landmark socio-economic interpreting the right to freedom of rights decisions handed down in South expression in Ousman Sabally v IGP, The Africa, such as Grootboom,29 Treatment Gambian Supreme Court referred to the decision of the African Commission in Constitutional Rights Project, Civil Liberties 24 African Commission on Human and Peoples' Organization and Media Rights Agenda v Rights ‘Principles and Guidelines on the 37 Rights to a fair Trial and Legal Assistance in Nigeria. Africa’ http://www.achpr.org/english/decla rations/Guidelines_Trial_en.html (accessed Unlike the African Charter, the 10 October 2011). 25 The list of these cases is on file with the Maputo Protocol has not enjoyed a author. great deal of judicial use at the domestic 26 [2014] ZACC 30; 2015 (1) SA 315 (CC). 27 Communication 225/98, HURILAWS v level. This perhaps is due to the fact that Nigeria 13th Annual Activity Report para 39. the Maputo Protocol is relatively recent 28 See the South African chapter. See also O Motlhasedi & L du Toit ‘The impact of the and some state parties to the African African Charter and the Maputo Protocol in South Africa’ in this book. See also Dawood and Another v Minister of Home Affairs and 30 2002 (5) SA 721 (CC). Others consolidated with Shalabi and Another v 31 2010 (4) SA 55 (CC). Minister of Home Affairs and Others and Thomas 32 See Motlhasedi & Toit (n 28 above). and Another v Minister of Home Affairs and 33 (237/08) [2008] SZHC 161 http://www. Others [2000] ZACC 8; 2000 (3) SA 936 at swazilii.org/files/sz/judgment/high-court/ para 29; Volks NO v Robinson and Others and 2008/161/SZHC_237_2008.pdf (accessed most recently, in DE v RH [2005] ZACC 2 8 August 2008). para 82. 34 [2001] LSHC 101 (unreported). 29 See the South African chapter. See also 35 See also Judicial Officers Association of Lesotho v Government of the Republic of South Africa and The Prime Minister [2006] LSHC. Others v Grootboom and Others [2000] ZACC 36 [2006] LSHC. 19; 2001 (1) SA 46 (CC). 37 (2000) AHRLR 227 (ACHPR 1999). Impact of the African Charter and the Maputo Protocol in selected African states 305
Charter are yet to ratify the Maputo Uganda (1) and Zimbabwe (4).42 To Protocol. However, in Kishindo v Kishin- date, Malawi is the only country to have do,38 a Malawian court referred to arti- submitted a specific report in the appro- cle 4 of the Maputo Protocol when priate form (Part B) on the Maputo distributing marital property following Protocol. the dissolution of a marriage. In the Kenyan case of KELIN & Others v In most countries, the Ministry of Medicins Sans Frontiere and Others, peti- Justice is responsible for preparing state tioners cited the provisions of the Afri- report, although the ministry of foreign can Charter and the Maputo Protocol affairs (MoFA), women affairs and among other human rights instruments other relevant government departments to argue against the forced and coerced are sometimes involved. In Mauritius, sterilization of women living with the process is led by the Human Rights HIV.39 The Court of Appeal of Lesotho Unit in the Office of the Prime Minister in the celebrated case of Molefi Ts’epe v but the final report is submitted by the The Independent Electoral Commission and MoFA. In Burkina Faso, the state report Others also referred to several undomes- is compiled by the Ministry of Justice ticated treaties, including the Maputo and Human Rights but the actual Protocol and article 18(4) of the African submission and presentation is done by Charter.40 In most cases, domestic the MoFA. There is limited civil society courts cite the Maputo Protocol as one involvement in the reporting process in of the numerous human rights instru- Cameroon and Mauritius. ments protecting a particular women’s right. Generally, concluding observations of the African Commission are not widely disseminated by states, except in (g) State reporting Kenya where it was reported that the government usually organises ‘dissemi- Only four countries – Burkina Faso, nation workshops’ after receiving copies Ethiopia, Kenya and Nigeria – out of of concluding observations from the the 17 countries selected for this study African Commission. The government are up to date in their reporting obliga- of Zimbabwe ratified the Maputo Proto- tion under the African Charter.41 The col following a concluding observation other 13 countries have the following of the African Commission. number of overdue reports: Cameroon (1), Côte d’Ivoire (1), The Gambia (11), One of the clearest demonstrations Ghana (9), Lesotho (7), Malawi (1), of the potential impact of the state Mauritius (4), Sierra Leone (1), South reporting procedure is documented in Africa (5), Swaziland (7), Tanzania (4), the Côte d’Ivoire chapter. The country hosted the 52nd ordinary session of the 38 [2014] MWHC 2. African Commission in 2012 where it 39 Constitutional Petition No 605 of 2014. See submitted its first ever state report under also Muigai v John Bosco Kariuki & Another (2014). the African Charter. In its concluding 40 See the South African chapter. See also Ts’epe observations, the African Commission v The Independent Electoral Commission and Others (2005) AHRLR 136 (LeCA 2005). See requested the government of Côte also Security Lesotho v Moepa Constitutional d’Ivoire to: (i) first, ratify the following Case No 12 of 2014. 41 African Commission ‘State reporting’ available at http://www.achpr.org/states/ (accessed 14 December 2015). 42 As above. 306 Conclusion human rights instruments: the Conven- The evidence in this book also tion for the Protection and Assistance of shows that states tend to give greater Internally Displaced Persons in Africa; priority to reporting under the UN than the African Charter on Democracy, the African human rights system. This is Elections and Good Governance; and very clear in the case of The Gambia, the Protocol to International Covenant which has submitted up to date state on Civil and Political Rights (ICCPR) reports with some human rights mecha- on the abolition of death penalty; and nisms but whose most recent report to (ii) secondly, make the article 34 (6) the African Commission was in 1994. Declaration pursuant to the Protocol to Reasons for delay in submitting state the African Charter on the Establish- reports to the African Commission ment of the African Court. The African include lack of competent personnel, Commission also used the platform of conflicting reporting obligations and making concluding observations to spot- political instability. light the lack of specific legislation protecting human rights defenders, the (h) Individual communications presence of discriminatory provisions against women in national legislation, From 1987, when the African Commis- the presence of harmful traditional prac- sion was inaugurated, to November tices that affect women, and the low 2015, the African Commission has level of resources dedicated to imple- found violations in 83 communications, mentation of Resolution 1325 on involving 27 states that are party to the women, peace and security, among African Charter.44 Nigeria has the high- others. est number of violation cases followed by Cameroon and Zimbabwe. The Afri- It is interesting to note that subse- can Commission found violations of the quent to these recommendations, the African Charter in the following number government of Côte d’Ivoire made the of communications relating to the article 34(6) Declaration. The Declara- following countries selected for this tion was deposited on 23 July 2013. In study: Burkina Faso (1), Cameroon (6), June 2014, the country adopted Law Ethiopia (1), The Gambia (2), Ghana 2014-388 on the protection and promo- (2), Kenya (3), Malawi (2), Nigeria (20), tion of human rights defenders. It also Sierra Leone (1), Swaziland (1), Uganda adopted a National Action Plan on UN Security Council Resolution 1325 on 44 See African Commission on Human and women, peace and security. It is also People’s Rights, ‘Communications’, available believed that the visits of Commissioner at http://www.achpr.org/communications/ (accessed 26 August 2015); IHRDA, African Reine Alapini-Gansou to Côte d’Ivoire, human rights case law analyser http:// in 2014 and 2015, as Special Rapporteur caselaw.ihrda.org/body/acmhpr/ (accessed 26 August 2015). In its 32nd and 33rd (joint) on Human Rights Defenders, played a activity report adopted by the Executive role in the adoption of the law on Council of the AU in January 2013, the human rights defenders in Côte Commission reported that since inception, it 43 has handled a total of 426 Communications d’Ivoire. and concluded 210 Communications. As at December 2014, the Commission had 89 pending communications. See Statement by the Chairperson of the African Commission on Human and Peoples’ Rights on the human 43 http://ci-ddh.org/2015/01/visite-de-la-rapp rights situation in Africa (28th Session of The orteure-speciale-des-defenseurs-des-droits-de- United Nations Human Rights Council), lhomme-aupres-de-la-cadhp/ (accessed available at http://www.achpr.org/news/ 13 September 2015). 2015/04/d171 (accessed 8 September 2015). Impact of the African Charter and the Maputo Protocol in selected African states 307
(2) and Zimbabwe (6).45 So far, the Afri- cations submitted against this country at can Commission is yet to make a find- the ECCJ. ing of violation against Côte d’Ivoire, Lesotho, Mauritius, South Africa and (i) Awareness and use of the Tanzania, despite allegations of serious African Charter and the human rights violations taking place in Maputo Protocol by civil these countries. society, practising lawyers, academics and NHRIs The African Court has found two countries, namely Burkina Faso and One challenge identified in all the Tanzania, to be in violation of the Afri- reports is the low level of awareness and can Charter in two cases respectively. use of the African Charter and the Nigeria and The Gambia have also been Maputo Protocol amongst lawyers and found to be in violation of the African domestic judges. Lawyers generally do Charter and other international human not consider the African Charter or the rights instruments by the ECOWAS Maputo Protocol as a main source of Community Court of Justice (ECCJ) in reference in their submissions. Even in a total of eight cases: five in the case of Nigeria and Kenya, where these two Nigeria and three in the case of The 46 instruments are directly applicable, they Gambia. Measures to implement these are most often than not cited only as decisions are few and far between. Some subsidiary sources. One interesting cases of full and partial compliance were example is given in the Ethiopia chap- however recorded in Cameroon, The ter, in which a judge admitted that he Gambia, Kenya and Nigeria. has not used the African Charter in almost two decades of judicial service. There has been a noticeable This example, which is likely not limit- decrease in terms of the number of ed to Ethiopia, is typical of the experi- communications submitted against ence and familiarity of judges across Nigeria since the country returned to Africa of these two instruments. It raises civil rule in 1999. For instance, informa- legitimate questions about the extent to tion on the website of the African which governments have trained local Commission shows that only one judges on the use of duly ratified human communication has been submitted or rights treaties. decided against Nigeria since 1999.47 During this period however, there has The various chapters in this book been a rise in the number of communi- report limited use of the African Charter and the Maputo Protocol by civil society organisation. Evidence suggests that civil society engagement is crucial to the 45 African Commission ‘Communications’ available at http://www.achpr.org/communi modest yet significant impact of the cations/ (accessed 15 December 2015). African Charter and the Maputo Proto- 46 HS Adjolohoun ‘Giving effect to the human rights jurisprudence of the Court of Justice of col in the selected countries. In 2012, the Economic Community of West African three civil society organisations – name- states: compliance and influence’ unpublished LLD Thesis, University of ly the Centre for Democracy and Pretoria 2013 13 &376. See also http://www. Human Rights, the Institute for Human courtecowas.org/ (accessed 15 December 2015). Rights and Development in Africa and 47 African commission ‘Nigeria’ http://www. the Centre for Human Rights at the achpr.org/states/nigeria/ (accessed 15 December 2015). University of Pretoria – received the 308 Conclusion
African Commission’s awards for their ment to the promotion and protection of commitment to the promotion and human rights.51 protection of human rights in Africa.48 Academic writing focusing on the All the countries selected for this African Charter and the Maputo Proto- study, with the exception of Lesotho col is generally scarce. However, exten- and The Gambia, have NHRIs. Many sive academic writing on the African of these institutions attend sessions of Charter and the Maputo Protocol is the African Commission regularly and reported in South Africa, Nigeria, Ugan- make statements about the human rights da and Lesotho. It is impossible to fully situations in their countries. They partic- discuss the impact of the African Char- ipate in the process of generating state ter and the Maputo Protocol in South reports and sometimes use provisions of Africa without mentioning the role of the African Charter and the Maputo two academic institutions, namely the Protocol in their advocacy activities. Centre for Human Rights (CHR) based Although Côte d’Ivoire, Ghana, Mala- at the University of Pretoria and the wi, Swaziland and Zimbabwe have Dullah Omar Institute (formerly the NHRIs, these institutions are yet to Community Law Centre) based at the obtain affiliate status with the African University of the Western Cape. The Commission. NHRIs in Burkina Faso, work of these research centres, and espe- Cameroon, Ethiopia, Kenya, Mauritius, cially the CHR’s Master of Laws (LLM) Nigeria, Sierra Leone, South Africa, in Human Rights and Democratisation Tanzania and Uganda have affiliate in Africa (HRDA), the African Human status with the African Commission. Rights Law Journal (AHRLJ) and the The South African Human Rights African Human Rights Law Reports Commission (SAHRC) has a good (AHRLR), represent among the most record in respect of using the African tangible impact of the African Charter Charter and the Maputo Protocol. The and the Maputo Protocol in any institu- SAHRC makes reference to provisions tion of learning in Africa. It is also of the African Charter and also to the important to mention the African jurisprudence of the African Commis- Human Rights Moot Competition, an sion in its programmes on the Right to event which has been described as the Food in South Africa.49 The SAHRC largest annual gathering of law students considers the African Charter as estab- and lecturers of law in Africa.52 Since lishing the relevant legal framework for the inaugural edition in 1992, the the recognition of right to food.50 In programme, which is organised by the 2012, the SAHRC and the national Centre for Human Rights, has hosted human rights commissions of Came- more than 1071 teams from over 146 roon and Uganda received the African universities in Africa.53 Each year, Commission’s award for their commit- participants argue one hypothetical case based on alleged violations of African 48 SAHRC ‘SAHRC receives African Com regional human rights instruments, mission Award for its commitment to the realisation of human rights’ available at http:/ /www.sahrc.org.za/home/index.php?ipkMe nuID=91&ipkArticleID=139 (accessed 15 December 2015). 51 SAHRC (n 49 above). 49 http://www.sahrc.org.za/home/index.php? 52 http://www.chr.up.ac.za/index.php/moot- ipkArticleID=270 (accessed 10 September court-2015.html (accessed 28 November 2015). 2015). 50 As above. 53 As above. Impact of the African Charter and the Maputo Protocol in selected African states 309 especially the African Charter and the Sierra Leone and Côte d’Ivoire, political Maputo Protocol. instability was identified as a major factor that has limited the impact of the (j) Limiting and enhancing factors African Charter and the Maputo Proto- col. Traditional practices which discrim- Ignorance about the provisions and inate against women and entrench potential uses of the African Charter patriarchy also limit the domestic effects and the Maputo Protocol is the number of the African Charter and especially the one factor impeding the impact of the Maputo Protocol. two instruments at the domestic level. All the chapters report that there is a In all the selected countries, there general lack of awareness about the are no legal frameworks in place spell- African Charter and the Maputo Proto- ing out the procedures for implementa- col by cabinet members, legislators, tion of decisions of the African judges, lawyers, academics, members of Commission, the African Court or other the press, and members of the public, regional human rights monitoring especially women, youth and children. bodies in Africa. The lack of a law It is impossible for citizens to agitate for reform commission in Swaziland was their rights if they are not aware such also identified as a factor that impedes rights exist or do not know the remedial legislative reform in line with the Afri- systems in place at the supranational can Charter and the Maputo Protocol. level to secure them where domestic The political arrangements in some remedies become unavailable. states which practice federalism has been identified as yet another factor that There is also a lack of political will limits the impact of the African Charter by top-level political actors and a gener- and the Maputo Protocol at the sub- al lack of human rights culture in many national level. This is particularly the of the selected states. It should be case in Nigeria. For instance, while the recalled that in 2005, Zimbabwe’s national government in Nigeria is taking Ministry of Foreign Affairs requested some steps to bring its laws into the African Commission’s Special conformity with the Maputo Protocol, Rapporteur on Refugees, Asylum Seek- these laws when finally adopted will not ers and Internally Displaced Persons to have any effect at the sub-national level leave the country. Non-domestication of unless sub-national governments adopt the African Charter and the Maputo specific legislation to that effect. Protocol in Anglophone and Franco- phone countries alike affects the impact It was also reported that conflicting of these instruments. In Mauritius, the reporting obligations to UN and AU Maputo Protocol is yet to be ratified. human rights bodies hampers some This contributes to the neglect of the states from keeping up to date with their Maputo Protocol by courts and civil state reports under the African Charter society organisations in Mauritius. and the Maputo Protocol. As a result of conflicting reporting timelines, states Poverty and high level of illiteracy, tend to give priority to their reporting coupled with political instability in obligation at the UN level at the many of the countries studied for this expense of their regional reporting obli- book impede the impact of the African Charter and the Maputo Protocol. In 310 Conclusion gations. This practice was reported in cial activism, academic writing and the Lesotho54 as well as in The Gambia. overall international and domestic contexts. In South Africa, the most The non-binding nature of the Afri- significant enhancing factor is the value can Commission’s decisions sometimes which the African Charter, the Maputo creates room for states to consider ignor- Protocol and the jurisprudence of the ing the African Commission’s decisions African Commission add to the domes- without legal consequence. In this tic legal framework in the areas of the regard, it may be that the African right to family life, right to food and the Commission has also contributed to the protection of women, coupled with the limited impact of the African Charter by existence of strong civil society and making recommendations and remedial research institutions. In Ethiopia, the orders that are often vague. In some translation of the African Charter into cases, the African Commission did not Amharic was reported as a major make any recommendation for states to enhancing factor. Political transition in implement. South Africa, Kenya, Sierra Leone and Côte d’Ivoire, among others has also Limited media coverage of the work provided vital opportunities for the of the African Commission and the Afri- internationalisation of the African Char- can Court also hamper the domestic ter and the Maputo Protocol in those effects of the African Charter and the countries. Maputo Protocol. It is significant to mention that some positive factors actu- The development of citable jurispru- ally impede the impact of the African dence on the African Charter and the Charter and the Maputo Protocol. In Maputo Protocol in Kenya and Nigeria South Africa, for instance, the relatively has greatly enhanced the impact of the progressive nature of the Bill of Rights African Charter and the Maputo Proto- and the transformative mindedness of col in the two countries. It is important the South African Constitutional Court not to lose sight of the decisions of the have rendered the African human rights ECOWAS Community Court of Justice system less appealing to civil society (ECCJ), the East African Court of organisations and litigants. Justice (EACJ) and the Southern Afri- can Development Commission (SADC) Speaking specifically of factors that Tribunal which have held that several have enhanced the impact of the African states have been in violation of the Afri- Charter, high levels of civil society can Charter. It is also important to engagement top the list, although this is mention the collaboration and support not the case across all countries. In of international partners, without which Nigeria, the most important enhancing many major activities of the African factor is the direct domestication of the Commission and civil society organisa- African Charter. Other factors which tions would be impossible. have enhanced the impact of the African Charter and the Maputo Protocol in 3 Recommendations Nigeria include strong civil society, judi- In order to improve the impact of the 54 See Report of the promotional mission to the Kingdom of Lesotho (2006) paras 129-136 African Charter and the Maputo Proto- www.achpr.org/english/Mission/Lesotho/ col in the selected states and in other Mission%20Report_Lesotho.pdf (accessed 9 September 2011). African states in general, the following Impact of the African Charter and the Maputo Protocol in selected African states 311 suggestions are made first to state nalisation of international human parties of the two instruments, then to rights norms in Africa. civil society and finally to the African (iii) Steps should be taken in every Commission: state to directly domesticate the African Charter and the Maputo (a) State parties Protocol. This may be done by following the Kenyan or Nigerian (i) Governments should raise aware- examples. In Kenya, the Constitu- ness about the African Charter tion provides that all duly ratified and the Maputo Protocol among treaties are directly applicable and cabinet members, legislators, judg- form part of the domestic law. In es, lawyers, academics, civil socie- Nigeria, the entire African Char- ty and members of the public ter was incorporated into domes- especially women, youth and chil- tic law through an Act of dren. State officials may borrow a parliament. At the very least, leaf from Mauritius by translating states should borrow a leaf from provisions of the African Charter South Africa where the Constitu- and the Maputo Protocol into tion imposes an obligation on local languages and ensuring that courts to consider international these documents are disseminated law when interpreting the Bill of not only in urban areas but also in Rights. It is also suggested that in rural communities. This is an future, political bodies within the important step for social internali- African Union should consider sation of the norms of the African the possibility of making domesti- Charter and the Maputo Protocol. cation of duly ratified treaties (ii) Adequate budgetary provision obligatory for all state parties to should be made for the periodic regional human rights instruments training and capacity building of in Africa. States that have incor- civil servants whose line of duty porated the African Charter and relates to the protection of human the Maputo Protocol in their rights at the domestic level. This domestic law should raise aware- includes staff of NHRIs, minis- ness about these treaties and tries of justice, gender and foreign encourage citizens to use them affairs offices and other relevant interchangeably with domestic government departments. The laws. African Commission should (iv) The practice of stifling democratic engage state delegations during space and restricting civil society presentation of state reports on operations should be discouraged. steps taken to train top-level Specifically, the government of government officials, such as cabi- Ethiopia should consider abolish- net members, legislators and judg- ing the policy which requires civil es, on use of the African Charter, society organisations to generate the Maputo Protocol and other 90 percent of their funding from regional human rights instruments local sources. in Africa. This is an important (v) There is a need for state parties to step for political and legal inter- the African Charter to ratify other regional human rights instruments 312 Conclusion
in Africa that may help to government of Swaziland is advance the objects of the African encouraged to set up a law reform Charter and the Maputo Protocol. commission. The lack of a law The African Court Protocol and reform commission in Swaziland African Charter on Democracy, has been identified as one of the Elections and Good Governance, factors that impede legislative among others are examples of reform in line with the African such treaties. Along this line, the Charter and the Maputo Protocol. government of Mauritius is (x) Curricula of educational institu- encouraged to ratify the Maputo tions should be revisited to incor- Protocol. States that are yet to porate elements of the African make the article 34(6) Declaration human rights system in relevant under the African Court Protocol academic disciplines. This is should also urgently do so. important for the training of (vi) Measures should be taken by lawyers and also for the continu- national governments, with the ous legal education of members of support of development partners, the bar and the bench. to reduce the rate of poverty and (xi) The regional human rights illiteracy, and to improve the master’s programme, the African overall socio-economic conditions Human Rights Moot Competi- of people in Africa. Poverty, high tion, the African Human Rights levels of illiteracy and poor socio- Law Journal (AHRLJ) and the economic conditions significantly African Human Rights Law impede the domestic impact and Report (AHRLR) should all be effectiveness of human rights trea- encouraged and supported. ties in Africa. (xii) Judges and legislators at the (vii) Traditional practices which domestic level should deploy the discriminate against women and African Charter and the Maputo entrench patriarchy should be Protocol in their work. The devel- proscribed. Governments are opment of citable jurisprudence encouraged not to stop at making on the African Charter and the laws which prohibit these practic- Maputo Protocol in Kenya and es but, at the same time, must Nigeria has greatly enhanced the ensure that the laws are effectively impact of these instruments in implemented. those countries. (viii) Legal mechanisms should be put (xiii) Provision should be made in the in place prescribing procedures for national budgets of every state for the implementation of decisions of the implementation of decisions of the African Commission and the relevant international, human African Court at the domestic rights tribunals. level. An institutional mechanism should also be created to coordi- (b) Civil society organisations nate this process. (ix) Law reform commissions should (i) Civil society organisations should be established in states that are yet comply with their reporting obli- to have them. Along this line, the gations by virtue of their observer Impact of the African Charter and the Maputo Protocol in selected African states 313
status with the African Commis- Commission on their follow up sion. It is reported in the various activities. chapters that civil society organi- (v) NGOs and other civil society sations that enjoy observer status organisations should explore with the African Commission do options outside the African not submit their activity reports as Commission and African Court in required by the Commission’s their attempts to ‘bring home’ the Resolution on the Criteria for benefits of the African Charter Granting and Enjoying Observer and the Maputo Protocol. The Status to Non-Governmental ECOWAS Community Court of Organizations Working in the Justice, for example, and more field of Human and Peoples’ recently the East African Court of Rights. Justice have become viable alter- (ii) Civil society organisations should natives for enforcing provisions of monitor the process of state the African Charter. reporting; submit shadow reports where appropriate, ensure easy (c) African Commission access to state reports and concluding observations, help (i) The African Commission should with the dissemination of create a special mechanism on concluding observations and law reform to monitor and to follow up on their implementa- liaise with states in the process of tion. transition to democracy. In addi- (iii) Civil society organisations have tion, such a mechanism could be generally taken the lead in creat- deployed to assist states that are ing awareness about the African reviewing their constitutions or Charter and the Maputo Protocol adopting important legislative through advocacy and promotion- instruments or amendments. al activities. However, they often States are generally more recep- fail to involve the media in these tive to human rights norms during activities. The use of the media to political transition and evidence promote the African Charter and from this study shows that if there the Maputo Protocol should not is effective engagement with rele- be left to state actors alone. vant domestic actors during politi- cal transition, and prior to the (iv) During submission of individual adoption of national constitutions communications, civil society or important domestic legislation, organisations assisting complain- there is a higher likelihood that ants should ensure that communi- human rights instruments will cations submitted to the African have an impact on legislative Commission include very specific outcomes and processes at the relief. This will assist the African domestic level. Commission in formulating specific recommendations at the (ii) It is submitted that the African conclusion of the case. They Commission would do well to should also follow up on states’ ensure that its recommendations implementation of these decisions are more specific. It may not be and report to the African helpful to ask a state to bring all 314 Conclusion
its laws into conformity with the its fifth state report, for instance, African Charter, without specify- should not be reminded of recom- ing in the remedial order what mendations or concluding obser- specific laws, or even what provi- vations issued during sions of those laws, should be consideration of the first or brought in line with the African second state report. This approach Charter. Vague recommendations should also be adopted for recom- have been shown to be difficult to mendations arising from previous implement and follow up. mission reports and decisions of (iii) The African Commission might the African Commission. consider the possibility of (vi) Media coverage of the work of the persuading more states to host its African Commission and of the ordinary sessions. This could decisions of the African Court greatly improve the level of should be intensified. Special awareness and the overall impact training programmes should also of the African Charter and the be organised, under the auspices Maputo Protocol in those states. of the African Commission, for Significant impact was recorded, members of the press to sensitise for example, when Côte d’Ivoire the media about the African Char- hosted the 52nd ordinary session ter, the Maputo Protocol and of the African Commission. other regional human rights trea- (iv) There is a need for the African ties in Africa. Commission to consider the possi- bility of adopting more model laws on critical human rights issues in Africa. Following the many success stories of the Model Law on Access to Information in Africa, coupled with the advocacy undertaken by the Special Rapporteur on Freedom of Expression to promote that law, adoption of model laws may be an area the African Commission should look into in future. The Model Law on Access to Informa- tion in African has been applaud- ed within and outside Africa for its significant impact on access to information legislation in Africa. (v) The African Commission should also build on its previous recom- mendations, and keep following up on those recommendations that have not been fully or effec- tively implemented. There is no reason why a country submitting BIBLIOGRAPHY
Books Franck, T The power of legitimacy among nations (Oxford University Press: New Ankumah, EA The African Commission on York 1990). Human and Peoples’ Rights: Practices and Goodman, R & Jinks, D Socializing states: procedures (Martinus Nijhoff: The Hague Promoting human rights through international 1996). law (Oxford University Press: New York Burgstaller, M Theories of compliance with 2013). international law (Martinus Nijhoff: Leid- Hafner-Burton, E Making human rights a reali- en 2005). ty (Princeton University Press: Princeton Cardenas, S Conflict and compliance: State and Oxford 2013). responses to international human rights pres- Heyns, C (ed) Compendium of key human sure (University of Pennsylvania Press: rights documents of the African Union (Preto- Philadelphia 2007). ria University Law Press: Pretoria 2005). Centre for Human Rights The impact of the Heyns, C & Killander, M (eds) Compendium African Charter and the Women’s Protocol in of key human rights documents of the African selected African states (Pretoria University Union (Pretoria University Law Press: Law Press: Pretoria 2012). Pretoria 2007). Chayes, A & Chayes, AH The new sovereign- Heyns, C & Linde, M van der Human rights ty: Compliance with international regulatory law in Africa (Martinus Nijhoff: Leiden agreements (Harvard University Press: 2004). Cambridge 1995). Heyns, C & Viljoen, F The impact of the Unit- Chirwa, DM Human rights under the ed Nations human rights treaties on the domes- Malawian Constitution (Juta: Cape Town tic level (Kluwer Law International: The 2011). Hague 2002). Dugard, J International law: A South African Hillebrecht, C Domestic politics and internation- perspective (Juta: Cape Town 2011). al human rights tribunals: The problem of Durojaye, E (ed) Litigating the right to health compliance (Cambridge University Press: in Africa (Ashgate: Surrey 2015). Cambridge 2014). Fisher, R Improving compliance with interna- Jammeh, OAS The constitutional law of The tional law (The University Press of Virgin- Gambia, 1965-2010 (Rosedog Books: Pitts- ia: Charlottesville 1981). burgh 2011). Franck, T Fairness in international law and Kadima, D & Booysen, S (eds) Compendium institutions (Clarendon Press: Oxford of elections in Southern Africa 1989-2009 1995).
315 316 Bibliography
(Electoral Institute of Southern Africa: Power, J Political culture and nationalism in Johannesburg 2009). Malawi: Building kwacha (University of Kazoba, GK Consumer protection and a guard Rochester Press: New York 2010). against counterfeit and substandard pharma- Risse, T; Ropp, SC & Sikkink, K The power of ceuticals in Tanzania: Examining legal and human rights (Cambridge University Press: institutional frameworks (Dar es Salaam Cambridge 1999). University Press: Dar es Salaam 2013). Risse, T; Ropp, SC & Sikkink, K The persis- Keck, ME & Sikkink, K Activists beyond tent power of human rights (Cambridge borders: Advocacy networks in international University Press: Cambridge 2013). politics (Cornell University Press: Ithaca Romano, C; Alter, K & Shany, Y (eds) 2008). Oxford handbook of international adjudication Keohane, RO After hegemony: Cooperation and (Oxford University Press: Oxford 2014). discord in the world political economy Rosenau, JN & Czempiel, E-O (eds) Govern- (Princeton University Press: New Jersey ance without government: Order and change in 1984). world politics (Cambridge University Press: Killander, M (ed) International law and domes- Cambridge 1992). tic human rights litigation in Africa (Pretoria Simmons, BA Mobilising for human rights University Law Press: Pretoria 2010). (Cambridge University Press: Cambridge Kufuor, KO The African human rights system: 2009). Origins and evolution (Palgrave Macmillan: Simon, H Models of man: Social and rational- New York 2010). mathematical essays on rational human Meinhardt, H & Patel, N Malawi's process of behaviour in a social setting (Wiley: New democratic transition: an analysis of political York 1957). developments between 1990 and 2003 Stefiszyn, K & Prezanti, A The impact of the (Konrad-Adenauer-Stiftung: Lilongwe, Protocol on the Rights of Women in Africa on Malawi 2003). violence against women in six selected South- Morgenthau, HJ Politics amongst nations: The ern African countries: An advocacy tool struggle for power and peace (Alfred A (Pretoria University Law Press: Pretoria Knopf: New York 1978). 2009). Murray, R & Long, D The implementation of Viljoen, F International human rights law in the findings of the African Commission on Africa (Oxford University Press: Oxford Human and Peoples’ Rights (Cambridge 2007). University Press: Cambridge 2015). Viljoen, F International human rights law in Nijman, J & Nollkaemper, A New perspectives Africa (Oxford University Press: Oxford on the divide between national & international 2012). law (Oxford University Press: Oxford Young, OR Compliance and public authority: A 2007). theory with international applications (RFF Nolkaemper, A National courts and the Inter- Press: New York 1979). national rule of law (Oxford University Press: Oxford 2011). Chapters in books Okafor, OC The African human rights system, activist forces and international institutions Appeagyei-Atua, K ‘Ghana at 50: The place (Cambridge University Press: Cambridge of international human rights norms in 2010). the courts’ in Mensa-Bonsu, H (ed) Ghana Oyebode, A (ed) International law and politics: law since independence: History, development, An African perspective (Bolabay Publishing: and prospects (University of Ghana: Legon Lagos 2003). 2007). Impact of the African Charter and Women’s Protocol in selected African states 317
Busia, NKA ‘Ghana’ in An-Na'im, AA (ed) (Pretoria University Law Press: Pretoria Human rights in African constitutions: realiz- 2012). ing the promise for ourselves (University of Viljoen, F ‘The African Commission on Pennsylvania Press: Philadelphia 2013). Human and Peoples’ Rights: Introduction Kabumba, B ‘The application of internation- to the African Commission and the al law in the Ugandan judicial system: A regional human rights system’ in Heyns, critical inquiry’ in Killander, M (ed) Inter- C & van der Linde, M (ed) Human rights national law and domestic human rights liti- law in Africa (Martinus Nijhoff: Leiden gation in Africa (Pretoria University Law 2004). Press: Pretoria 2010). Young, OR ‘The effectiveness of internation- Kasenally, A ‘Chapter 8: Mauritius’ in Kadi- al institutions: Hard cases and critical ma, D & Booysen, S (eds) Compendium of variables’ in Rosenau, JN & Czempiel, E- elections in Southern Africa 1989-2009 (Elec- O (eds) Governance without government: toral Institute of Southern Africa: Johan- Order and change in world politics nesburg 2009). (Cambridge University Press: Cambridge Killander, M & Adjolohoun, H ‘Internation- 1992). al law and domestic human rights litiga- tion in Africa: An Introduction’ in Journal articles Killander, M (ed) International law and domestic human rights litigation in Africa Abebe, AK ‘Human rights under the Ethio- (Pretoria University Press: Pretoria 2010). pian Constitution: A descriptive over- Mahadew, R ‘The right to health in Mauri- view’ (2011) 5 Mizan Law Review 41. tius: Is the state doing enough or is the Acheampong, K ‘The African Charter and constitutional protection of the right to equalisation of human rights’ (1991) 7 health still required?’ in Durojaye, E (ed) Lesotho Law Journal 21. Litigating the right to health in Africa Acheampong, K ‘Human rights, democracy (Ashgate: Surrey 2015). and development aid to Africa’ (1992) 8 Oyebode, A ‘Treaty making power in Nige- Lesotho Law Journal 17. ria’ in Oyebode, A (ed) International law Acheampong, KA ‘The ramifications of and politics: An African perspective (Bolabay Lesotho’s ratification of the Convention Publishing: Lagos 2003). on the Elimination of all Forms of Quansah, EK ‘An examination of the use of Discrimination against Women’ (1993) 9 international law as in interpretative tool Lesotho Law Journal 79. in human rights litigation in Ghana and Acheampong, K ‘Freedom of expression Botswana’ in Killander, M (ed) Interna- including freedom of the press under the tional law and domestic human rights litiga- African Charter’ (1997) 10 Lesotho Law tion in Africa (Pretoria University Law Journal 57. Press: Pretoria 2010). Acheampong, K ‘Africa and the vicissitudes Tanoh, A & Adjolohoun, H ‘International of the human rights principle of the will law and human rights litigation in Côte of the people as the basis of the authority d’Ivoire and Benin’ in Killander, M (ed) of government’ (1998) 11 Lesotho Law International law and domestic human rights Journal 87. litigation in Africa (Pretoria University Law Press: Pretoria 2010). Adu, KK ‘Ghana’s Right to Information Bill: An opportunity for the implementa- Techane, MG ‘The impact of the African tion of digital preservation structure’ Charter and the Women’s Protocol in (2014) 4 Journal of Emerging Trends in Mauritius’ in Centre for Human Rights Computing and Information Sciences 795. The impact of the African Charter and the Women’s Protocol in selected African states 318 Bibliography
Akinbuwa, AA ‘The concept of women’s Dankwa, EVO ‘Implementation of interna- rights in Nigeria’ (2009) 15 East African tional human rights instruments: Ghana Journal of Peace and Human Rights 465. as an illustration’ (1991) 3 Annual confer- Ali, AJ ‘The admissibility of sub-regional ence - African Society of International and courts’ decisions before the African Comparative Law 57. Commission or African Court’ (2012) 4 Demissie, W ‘The right to bail in Ethiopia: Mizan Law Review 241. Respective roles of the court and the legis- Alston, P ‘A third generation of solidarity lature’ (2009) 23 Journal of Ethiopian Law rights: Progressive development or obfus- 1. cation of international human rights law?’ Downs, GW; Rocke, DM & Barsoom, PN (1982) 29 Netherlands International Law ‘Is the good news about compliance good Review 307. news about cooperation?’ (1996) 50 Inter- Alter, K ‘Tipping the balance: International national Organization 379. courts and the construction of internation- Egede, E ‘Bringing human rights home: An al and domestic politics’ (2011) 13 examination of the domestication of Cambridge Yearbook of European Legal Stud- human rights treaties in Nigeria’ (2007) ies 1. 51 Journal of African Law 249. Amoah, PKA ‘Independence of the judiciary Eze-Anaba, I ‘Domestic violence and legal in Lesotho: A tribute to Justice reforms in Nigeria: Prospects and chal- Mofokeng’ (1987) 3 Lesotho Law Journal lenges’ (2007) 14 Cardozo Journal of Law & 21. Gender 21. Aniekwu, N ‘Customary law impacts on Fanana, M ‘The peoples’ rights under the women’s rights issues: Reconciling the African charter on human and peoples’ tensions in Nigeria’ (2008-2009) 18 Leso- rights’ (1997) 10 Lesotho Law Journal 37. tho Law Journal 85 Fombad, CM ‘The Swaziland Constitution Banda, F ‘Brazing a trail: The African Proto- of 2005: Can absolutism be reconciled col on Women’s Rights comes into force’ with modern constitutionalism?’ (2007) (2006) 50 Journal of African Law 72. 23 South African Human Rights Law Journal Bates, ES ‘Sophisticated constructivism in 93. human rights compliance theory’ (2015) Forster, P ‘Culture, nationalism and the 25 European Journal of International Law invention of tradition in Malawi’ (1994) 1169. 32 The Journal of Modern African studies Bawa, S ‘Women’s rights and culture in 477. Africa: a dialogue with global patriarchal Furley, O & Katalikawe, J ‘Constitutional traditions’ (2012) 33 Canadian Journal of reform in Uganda: The new approach’ Development Studies 90. (1997) 96 African Affairs 243. Blanchet, NJ; Fink, G & Osei-Akoto, I ‘The Ginsburg, T ‘Locking in democracy: Consti- effects of Ghana’s National Health Insur- tution, commitment and international ance Scheme on health care utilisation’ law’ (2006) 38 New York University Journal (2012) 46 Ghana Medical Journal 76. of International Law and Politics 707. Cassel, D ‘Does international human rights Gloppen, S & Kanyongolo, FE ‘Courts and law make a difference?’ (2001) 2 Chicago the poor in Malawi: Economic marginali- Journal of International Law 121. zation, vulnerability, and the law’ (2007) Chayes, A & Chayes, AH ‘On compliance’ 5 International Journal of Constitutional Law (1993) 47 International Organization 175. 258. Checkel, JT ‘The constructivist turn in inter- Gondwe, ZS ‘Prohibition against all forms national relations theory’ (1998) 50 World of racial discrimination: Policy, law and Politics 324. reality’ (1996) Lesotho Law Journal 13. Impact of the African Charter and Women’s Protocol in selected African states 319
Guzman, AT ‘A compliance-based theory of Keith, LC ‘The United Nations International international law’ (2002) 90 California Law Covenant on Civil and Political Rights: Review 1823. Does it make a difference in human rights Hafner-Burton, EM ‘Trading human rights: behavior?’ (1999) 36 Journal of Peace How preferential trade agreements influ- Research 95. ence government repression’ (2005) 59 Kludze, AKP ‘Constitutional rights and their International Organization 593. relationship with international human Hafner-Burton, EM & Tsutsui, K ‘Human rights in Ghana’ (2008) 41 Israel Law rights in a globalizing world: The paradox Review 677. of empty promises’ (2005) 110 American Koh, HH ‘The 1994 Roscoe Pound Lecture: Journal of Sociology 1373. transnational legal process’ (1996) 75 Hatchard, J ‘The right to legal representation Nebraska Law Review181. in Africa: The Zimbabwean experience’ Koh, HH ‘The 1998 Frankel Lecture: Bring- (1988) 4 Lesotho Law Journal 135. ing international law home’ (1998) 35 Hathaway, OA ‘Do human rights treaties Houston Law Review 623. make a difference?’ (2002) 111 Yale Law Koh, HH ‘How is international human Journal 1935. rights law enforced?’ (1999) 74 Indiana Hathaway, OA ‘Between power and princi- Law Journal 1397. ple: An integrated theory of international Kuria, GK ‘The rule of law in Kenya and law’ (2005) 72 University of Chicago Law status of human rights: An interview’ Review 469. (1991) 16 Yale Journal of International Law Heyns, C & Kagoungo, W ‘Constitutional 217. human rights law in Africa’ (2006) 22 Lallah, R ‘The domestic application of inter- South African Journal of Human Rights 678. national human rights norms’ (1988) 2 Heyns, C & Viljoen, F ‘The impact of the Mauritius Law Review 216. United Nations human rights treaties on Langwenya, SM ‘Recent legal developments the domestic level’ (2001) 23 Human – Swaziland’ (2005) University of Botswana Rights Quarterly 483. Law Journal 170. Hill, DW ‘Estimating the effects of human Leeds, BA ‘Alliance reliability in times of rights treaties on state behaviour’ (2010) war: Explaining state decisions to violate 72 Journal of Politics 1161. treaties’ (2003) 57 International Organiza- Idris, I ‘The status and application of inter- tion 801. national treaties in Ethiopia’ (2000) 20 Letete, P ‘The notion of culture and equality Journal of Ethiopian Law 113. in international law: Conflict of laws in James-Eluyode, J ‘Enforcement of interna- Lesotho’ (1998) 11 Lesotho Law Journal tional humanitarian law in Nigeria’ 159. (2003) 3 African Human Rights Law Journal Van der Linde, M & Louw, L ‘Considering 264. the interpretation and implementation of Juma, L ‘Nothing but a mass of debris: art 24 of the African Charter on Human Urban evictions and the right of access to and Peoples’ Rights in light of SERAC adequate housing in Kenya’ (2012) 12 Communication’ (2003) 3 African Human African Human Rights Law Journal 470. Rights Law Journal 167. Kapindu, R ‘Courts and the enforcement of Mahadew, RA ‘Mauritius decriminalizes socio-economic rights in Malawi: Juris- abortion in certain circumstances – prudential trends, challenges and oppor- Lessons from the travaux preparatoires’ tunities’ (2013) 1 African Human Rights (2015) 36 Statute Law Review 160. Law Journal 125. Mbondenyi, M ‘Improving the substance and the content of civil and political 320 Bibliography
rights under the African Human Rights Orago, NS ‘The 2010 Kenyan Constitution System’ (2007) 17 Lesotho Law Journal 37. and the hierarchical place of international Mbondenyi, MK ‘The right to participate in law in Kenyan domestic legal system: A the government of one’s country: An comparative perspective (2013 13 African analysis of art 13 of the African Charter Human Rights Law Journal 415. on Human and Peoples’ Rights in light of Paulson, C ‘Compliance with final judg- Kenya’s 2007 political crisis’ (2009) 9 ments of the International Court of African Human Rights Law Journal 183. Justice since 1987’ (2004) 98 American Mengesha, EH ‘Reconciling the need for Journal of International Law 434. advancing women's rights in Africa and Plessis, L Du ‘Legal academics and the open the dictates of international trade norms: community of constitutional interpreters’ The position of the Protocol on the Rights (1996) 12 South Africa Journal on Human of Women in Africa’ (2006) 6 African Rights 214. Human Rights Law Journal 168. Raustiala, K ‘Compliance and effectiveness Mmbando, CJ ‘The protocol on the rights of in international regulatory cooperation’ women in Africa: A tool to women rights (2000) 32 Case Western Reserve Journal of protection in Tanzania’ (2014) 3 Tumaini International Law 387. University Makumira Law Review 16. Ruhangisa, JE ‘Human rights and good Moravcsik, A ‘Taking preferences seriously: governance: The role of law reform agen- A liberal theory of international politics’ cies’ (2005) 11 East African Journal of Peace (1997) 51 International Organisation 513. and Human Rights 93. Moravcsik, A ‘The origins of human rights Semu, L ‘Kamuzu's Mbumba: Malawi regimes: Democratic delegation in Post- women's embeddedness to culture in the war Europe’ (2000) 54 International Organ- face of international political pressure and ization 217. internal legal change’ (2002) 49 Africa Mwambene, L ‘Marriage under African Today 77. customary law in the face of the Bill of Simmons, BA ‘International law and state Rights and international human rights behaviour: Commitment and compliance standards in Malawi’ (2010) 1 African in international monetary affairs’ (2000) Human Rights Law Journal 78. 94 American Political Science Review 819. Mubanguzi, JC ‘Constitutional protection of Simmons, BA & Hopkins, D ‘The constrain- socio-economic rights’ (2006) African Jour- ing power of international treaties: Theo- nal of Legal Studies 1. ry and methods’ (2005) 99 American Mutua, M ‘The Banjul Charter and the Afri- Political Science Review 623. can cultural fingerprint: An assessment of Slaughter, A-M ‘International law in a world the language of duties’ (1995) 35 Virginia of liberal states’ (1995) 6 European Journal Journal of International Law 339. of International Law 503. Neumayer, E ‘Do international human Snidal, D ‘The limits of hegemonic stability rights agreements improve respect for theory’ (1985) 39 International Organisation human rights?’ (2005) 49 Journal of Conflict 579. Resolution 925. Soboka, T ‘The monist-dualist divide and the Nsibirwa, MS ‘A brief analysis of the draft supremacy clause: revisiting the status of protocol to the African Charter on human rights treaties in Ethiopia’ (2009) Human and Peoples’ Rights on the rights 23(1) Journal of Ethiopian Law 132. of women’ (2001) 1 African Human Rights Torto, BT ‘Affirmative action and women’s Law Journal 40. empowerment in Ghana: challenges to a Onkemetse, BT ‘Giving effect to treaties in growing democracy’ (2013) Conflict Trends the domestic law of Botswana’ (1997) 10 41. Lesotho Law Journal 205. Impact of the African Charter and Women’s Protocol in selected African states 321
Tshosa, O ‘Judicial protection of the rights Ayeni, VO ‘Domestic impact of the African of women under the constitutions of Charter on Human and Peoples’ Rights southern African countries with particular and the Protocol on the Rights of Women reference to non-discrimination’ (2008- in Africa: A case study of Nigeria’ unpub- 2009) 18 Lesotho Law Journal 99. lished LLM dissertation, University of Twibell, TS ‘Ethiopian constitutional law: Pretoria 2011. The structure of the Ethiopian govern- Binpong-Buta, SY ‘The Role of the Supreme ment and the new constitution’s ability to Court in the development of constitution- overcome Ethiopia’s problems’ (1999) 21 al law in Ghana’ unpublished LLD thesis, Loyola of Los Angeles International and University of South Africa 2005. Comparative Law Review 399. Kabata, FN ‘Impact of international human Viljoen, F ‘An introduction to the Protocol rights monitoring mechanisms in Kenya’ to the African Charter on Human and unpublished LLD thesis, University of Peoples’ Rights on the Rights of Women Pretoria 2015. in Africa’ (2009) 16 Washington & Lee Louw, L ‘An analysis of state compliance Journal of Civil Rights & Social Justice 17. with the recommendations of the African Viljoen, F & Louw, L ‘State compliance Commission on Human and Peoples’ with the recommendations of the African Rights’ unpublished LLD thesis, Univer- Commission on Human and People's sity of Pretoria 2005. Rights, 1994-2004’ (2007) 101 The Ameri- Ojienda, TO ‘HIV/AIDS and the labour can Journal of International Law 1. sector: examining the role of law in Viljoen, F & Nsibirwa, M ‘Political partici- protecting the HIV positive worker in pation of women in Lesotho: The case of Kenya’ unpublished LLD thesis, Univer- Molefi Ts’epe v The Independent Electoral sity of South Africa 2010. Commission and Others, Judgement of 30 Techane, MG ‘Where is the African Char- June 2005’ (2006) 39 Comparative and ter? Assessing the impact of the African International Law Journal of Southern Africa Charter on Human and Peoples’ Rights in 351. Mauritius’ unpublished LLM disserta- Winks, BE ‘A covenant of compassion: Afri- tion, University of Pretoria 2011. can humanism and the rights of solidarity in the African Charter on Human and Judicial decisions Peoples’ Rights’ (2011) 11 African Human Rights Law Journal 447. African Commission on Human and Yeshanew, SA ‘The justiciability of human Peoples’ Rights rights in the Federal Democratic Republic of Ethiopia’ (2008) 8(2) African Human Rights Law Journal 273. Abubakar v Ghana (2000) AHRLR 124 (ACHPR 1996). Yola, AA ‘Overview of all departments in the Federal Ministry of Justice’ (2012) 4 Aminu v Nigeria (2000) AHRLR 258 Justice Journal 1. (ACHPR 2000). Centre for Free Speech v Nigeria (2000) AHRLR Theses and dissertations 250 (ACHPR 1999). Centre for Minority Rights Development (Kenya) Adjolohoun, HS ‘Giving effect to the human and Another (on behalf of Endorois Welfare rights jurisprudence of the Court of Council) v Kenya (2009) AHRLR 75 Justice of the Economic Community of (ACHPR 2009). West African states: Compliance and Constitutional Right Project v Nigeria (2000) influence’ unpublished LLD thesis, AHRLR 241 (ACHPR 1999). University of Pretoria 2013. 322 Bibliography
Constitutional Rights Project v Nigeria (2000) Ugokwe v Nigeria ECW/CCJ/JUD/03/05. AHRLR 248 (ACHPR 1999). Djot Bayi v Nigeria ECW/CCJ/JUD/01/09. Constitutional Rights Project, Civil Liberties SERAP v Nigeria (Education) ECW/CCJ/ Organization and Media Rights Agenda v JUD/07/10. Nigeria (2000) AHRLR 227 (ACHPR Chief Manneh v The Gambia (2008) AHRLR 1999). 171 (ECOWAS 2008). Constitutional Rights Project (in respect of Zama- Musa Saidykhan v The Gambia ECW/CCJ/ ni Lakwot and 6 Others) v Nigeria (2000) JUD/08/10. AHRLR 183 (ACHPR 1995). Etim Moses Essien v The Gambia ECW/CCJ/ Constitutional Rights Project (in respect of JUD/05/07. Akamu, Adega and Others) v Nigeria (2000) AHRLR 180 (ACHPR 1995). Deyda Hydara Jr & Others v The Gambia ECW/CCJ/PP/30/11. Lawyers for Human Rights Swaziland v Swazi- land (2005) AHRLR 66 (ACHPR 2005). Miss A v Cameroon (2004) AHRLR 39 The Gambia (ACHPR 2004). Attorney General v Jobe (No 2) [1960-1963] Open Society Justice Initiative (on behalf of Pius GLR 226. Njawe Noumeni) v Cameroon (2006) AHRLR 75 (ACHPR 2006). Mariam Denton v the Director General of the NIA and & 5 Others HC/24/06 MF/087/ Purohit and Another v The Gambia (2003) F1 AHRLJ 96 (ACHPR 2003). Sir Dawda Jawara v The Gambia (2000) Ghana AHRLR 107 (ACHPR 2000).
Social Economic Right Action Centre (SERAC) Adjei-Ampofo v Attorney-General [2003-2004] 1 and Another v Nigeria (2001) AHRLR 60 SCGLR 411; NPP v Attorney-General (ACHPR 2001). [1996-97] SCGLR 729 761. Tembani & Freeth v Angola and Thirteen Others Adjei-Ampofo v Attorney General [2003-2004] (2014) AHRLR 54 (ACHPR 2014). SCGLR 418. Asare and Others v GA West District Assembly & African Court on Human and Peoples’ Another (2009) AHRLR 343 (GhHC Rights 2009) Ghana Lotto Operators Association & Others v Mtikila v Tanzania Applications Nos. 009/ National Lottery Authority [2007-2008] 2011 and 011/2011, Judgment of 14 June SCGLR 1088. 2013. Ghana Lotto Operators Association & Others v National Lottery Authority [2007-2008] ECOWAS Community Court of Justice SCGLR 1088 1096. NPP v Attorney-General [1996-97] SCGLR SERAP v Nigeria ECW/CCJ/JUD/18/12. 729 761. Simone Ehivet and Michel Gbagbo v Côte d’Ivoire NPP v Inspector General of Police [1993-94] 2 ECW/CCJ/JUD/03/13. GLR 459. Amouzou Henri & 5 Others v Côte d’Ivoire ECW/CCJ/JUG/04/09. Kenya The National Co-ordinating Group of Depart- mental Representatives of the Cocoa-Coffee CK and 11 Others v The Commissioner of Police/ Sector (CNDD) v Côte d'Ivoire ECW/CCJ/ Inspector General of the National Police JUD/05/09. Service and 2 Others, Petition 10 of Impact of the African Charter and Women’s Protocol in selected African states 323
2012.David Njoroge Macharia v Republic Malawi Telecommunications Limited v Makande Court of Appeal at Nairobi Criminal & Omar Civil Appeal No. 2 of 2006. Appeal 497 of 2007. R v Chihana [1993] MWSC 1. FIDA Kenya & 5 Others v The Attorney General R v Cheuka & Others [2009] MWHC 49. and the Judicial Service Commission, Petition Republic v Mphembedzu [2011] MWHC 12. 102 of 2011. Trustees, Women & Law (Malawi) Research & IMLU v Attorney General of Kenya and 4 others Education Trust v Attorney General [2014] EACJ Ref. No 3 of 2010. MWHC 1. Martha Karua v Radio Africa Ltd, High Court at Nairobi (Nairobi Law Courts) Civil Suit 288 of 2004. Mauritius Okunda v Republic [1970] EA 453. Bajan M v The State (2010) SCJ 348. Richard Muasya v AG High Court Petition No Bundhun VP v The State (2010) SCJ 206. 705 of 2007. Devendranath Hurnam, Toolskykamal v HH The Rono v Rono (2005) AHRLR 107 (KeCA District Magistrate of Pamplemousses (2007) 2005). SCJ 289. VMK v CUEA (2013) eKLR. Dookhits S v The District Magistrate of Pample- Waweru v Republic (2007) AHRLR 149 mousses (2011) SCJ 101. (KeHC 2006). Fakeemeeah Mohamed v Commissioner of Police and Others (2001) SCJ252. Lesotho Jeekahrajee v Registrar Co-operatives (1978) MR 215. Basotho National Party and Another v govern- Moodoosoodun v The State (2009) SCJ 413. ment of Lesotho and Others (Constitutional Case No 5/2002) [2003] LSHC 6. Oozeer SA.S & Others v The State (2007) SCJ 307. Judicial Officers Association of Lesotho v The Prime Minister [2006] LSHC. Parayag RK v The Independent Commission against Corruption (2011) SCJ 309. Moosa and Others v Magistrate - His Worship Mr Ntlhakana and others [2007] LSHC. Société United Docks v government of Mauritius (1976) MR 81. Senate Gabashane Masupha v Senior Resident Magistrate of the Subordinate Court of Berea State v Assame HD & Another (2001) SCJ 177. District and Others (2013) LSHC 9CC. Senate Gabashane Masupha v Senior Resident Nigeria Magistrate of the Subordinate Court of Berea District and Others (2014) LSCA CofA Civ. Abacha v Fawehinmi [2000] 6 NWLR (Part Senate Masupha v Senior Resident Magistrate of 660) 228. the Subordinate Court of Berea District and Agbakoba v Director of State Security Service Others 2014 LSCA CofA Civ. (1994) 6 NWLR 475. African Reinsurance Corporation v Abata Malawi Fantaye [1986] 3 NWLR (part 32) 811. AG Federation v AG Abia State and 35 Others Banda v Lekha [2005] MWIRC 44. [2002] 16 I WRN 175. Chakuamba and Others v Attorney General and Anekwe v Nwekwe Suit No: SC.129/2013; Others [2000] MWSC 1. (2014) LPELR 22697 (SC). Jumbe and Another v Attorney General [2005] Archbishop Okogie v Attorney General of Lagos MWHC 15. State (1981) 2 NCLR 337 350. Kishindo v Kishindo [2014] MWHC 2. 324 Bibliography
Comptroller Nigerian Prisons v Dr Femi Adeka- Government of the Republic of South Africa nye and Others (1999) 10 NWLR 400. and Others v Grootboom and Others Comptroller of Nigerian Prisons v Dr Femi [2000] ZACC 19; 2001 (1) SA 46 (CC). Adekanye (No 2) (2002) 15 NWLR 332 Hassam v Jacobs NO and Others [2009] ZACC SC. 19; 2009 (5) SA 572 (CC). Fawehinmi v Abacha (1996) 9 NWLR (pt 475) Khosa v Minister of Social Development 710 CA. [2004] (6) SA 505 (CC). Ibidapo v Lufthansa Airlines [1997] 4 NWLR Mazibuko v City of Johannesburg [2010] (4) (Part 498) 124 150. SA 55 (CC). Moujekwu v Ejikeme (2000) 5 NWLR (part Minister of Health and Others v Treatment 567) 402. Action Campaign and Others [2002] (5) Nemi v The State (1994) 1 LRC 376. SA 721 (CC). Nwankwo v Onomeze-Madu (2009) 1 NWLR National Commissioner of the South African (part 1123) 671, 715-716. Police Service v Southern African Litigation Centre and Others [2014] ZACC 30; 2015 Nwosu v Nwosu (2012) 8 NWLR (Part 1303) (1) SA 315 (CC). 27. S v Williams 1995 3 SA 632 (CC). Odafe v Attorney General of the Federation (2004) AHRLR 205, 211. Samuel Kaunda and others v President of the Republic of South Africa and others 2005 4 Odebunmi v Oladimeji (2012) LPELR 15419 SA 235 (CC). (CA). Shalabi and Another v Minister of Home Affairs Ogugu v The State (1994) 9 NWLR 1, 26-27. and Other & Thomas and Another v Minister Ohakosin v Commissioner of Police, Imo State of Home Affairs and Others [2000] ZACC 8; (2009) 15 NWLR (part 1164) 229. 2000 (3) SA 936. Oshevire v British Caledonian Airways Ltd Volks NO v Robinson and Others [2005] ZACC (1990) 7 NWLR 507. 2. UAC v Global Transporte Oceanic SA (1996) 5 NWLR 291. Swaziland Ubani v Director of SSS (1999) 11 NWLR (pt 265) 129 CA. Aphane v Registrar of Deeds & Others (383/09) Ukeje v Ukeje Suit No: SC.224/2004; (2014) [2010] SZHC 29. LPELR 22724 (SC). Attorney-General v Aphane (12/09) [2010] SZSC 32. South Africa Fakudze v The Director of Public Prosecutions (237/08) [2008] SZHC 161. Bhe and Others v Khayelitsha Magistrate and Mabila v The Director of Public Prosecutions Others [2004] ZACC 17; 2005 (1) SA 580 (3347/2003) [2009] SHZC. (CC). Masinga v Director of Public Prosecutions & Consolidated with Shalabi and Another v Others (21/07) [2011] SZHC 58. Minister of Home Affairs and Other & Ndzimandze & Others v Ndzimandze & Others Thomas and Another v Minister of Home (981/14) [2014] SZHC 234. Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 Nombuyiselo Sihlongonyane v Mholi Sihlongon- yane (470/2013) [2013] SZHC 144. Dawood and Another v Minister of Home Affairs and Others [2000] ZACC 8. Sithole NO and Others v Prime Minister of the Kingdom of Swaziland & Others (2792/ DE v RH [2015] ZACC 8. 2006)[2007] SZHC 1. Impact of the African Charter and Women’s Protocol in selected African states 325
Southern Trading Company v Minister of Agri- Legislation culture& Cooperatives & 4 Others (50/2011) [2011] SZSC 17. International human rights Stapley v Dobson (2240/07)[2008] SZHC 11. instruments Swaziland National Ex-Miners Workers Associa- tion & Another v The Minister of Education & OAU Convention Governing the Specific Others (335/09) [2009] SZHC 104. Aspects of Refugee Problems in Africa Sithole & Others v The Prime Minister & Others 1969. (35/2007) [2007] SZSC. African Charter on Human and Peoples’ Rights 1981. Tanzania African Charter on the Rights and Welfare of the Child 1990. Attorney General v Rev Christopher Mtikila Civil Protocol to the African Charter on Human Appeal No 45 of 2009. and Peoples’ Rights on the Establishment Bernado v Holaria Pastory (1990) LRC 757. of the African Court on Human and Elizabeth v AG Misc Civil Cause No 82 of Peoples’ Rights 1998. 2005. The Constitutive Act of the African Union Ephraim v Holaria Pastory (2001) AHRLR 236 2000. (TzHC 1990). Protocol to the African Charter on Human Transport Equipment & Reginald John Nolan v and Peoples’ Rights on the Rights of Devram Valambbia Appeal Case No 19 of Women in Africa 2003. 1993. Convention on Prevention and Combating Corruption 2003. Uganda African Charter on Democracy, Elections and Good Governance 2007. Attorney General v Susan Kigula & 417 Others, AU Convention for the Protection of and No 3 of 2006, Uganda Supreme Court, 21 Assistance of Internally Displaced January 2009. Persons 2009. Obbo and Another v Attorney-General (2004) AHRLR 256 (UgSC 2004). Burkina Faso Uganda Law Society & Another v The Attorney General Constitutional Petitions No 2 & 8 Act No 021-2005/AN of 2005. of 2002 [2009]. Constitution of Burkina Faso of 2012. Law No 033-2012/AN of 2012. Zimbabwe Law No 0034-2009/AN of 2009.
Association of Independent Journalists and Others Law No 010-2009/AN of 2009. v Minister of Information and Publicity and Law No 029-2008/AN of 2008. Others SC136/02. Capital Radio v Broadcasting Authority of Cameroon Zimbabwe, Minister of State for Information and Publicity and the Attorney General of Constitution of Cameroon of 1996. Zimbabwe SC128/02. Decree No 94/199 of 1994. Kachingwe and Another v Minister of Home Decree No 2000/287 of 2000. Affairs and Others SC145/04 (18 July 2005). Decree No. 2009/143 of 2009. Decree No 2011/408 of 2011. 326 Bibliography
Côte d’Ivoire Children’s Act of 1998. Labour Act of 2003. Constitution of Côte d’Ivoire of 2000. Public Order Act of 1994. Decree No. 61-157 of 1961. The National Health Insurance Act of 2003. Law No 2012-1134 of 2012. Legal Aid Scheme Act of 1997. Decree No 842 of 2014. Human Trafficking Act of 2005. Law No 2014-388 of 2014. Disability Act of 2006. Domestic Violence Act of 2007. Ethiopia National Peace Council Act of 2011.
Constitution of the Federal Democratic Criminal & Other Offences Act of 1960. Republic of Ethiopia of 1995. Criminal Code (Repeal of criminal libel and Criminal Code of 2004. seditious laws) (Amendment) Act of 2001. Family Law of 2000. Children’s Act of 1998. Kenya Interstate Succession Law of 1985. Labour Act of 2003. Constitution of Kenya of 2010. Public Order Act of 1994. Treaty Making and Ratification Act of 2012. Legal Aid Scheme Act of1997. Constitution of Kenya of 1969. Public Health Act of 2012. Treaty Making and Ratification Act of 2012. Commission on Human Rights and Admin- Sexual Offences Act of 2006. istrative Justice (CHRAJ) Act of 1993. HIV and AIDS Prevention and Control Act of 2006. Lesotho Environmental Co-ordination and Manage- ment Act of 1999. Constitution of Lesotho of 1993 Protection against Domestic Violence Act of Legal Capacity of Married Persons Act 9 of 2015. 2006. Counter Trafficking in Persons Act of 2010. Law Reform Commission Act 5 of 1993. Prohibition of Female Genital Mutilation of Labour Code Wages (Amendment) Act of 2011. 2009. Education Act of 2010. The Gambia Anti-Trafficking in Persons Act of 2011. Children’s Protection and Welfare Act of The Constitution of The Republic of The 2011. Gambia of 1997. Women’s Act of 2010. Malawi Elections (Amendment) Act of 2015. Domestic Violence Act of 2013. Constitution of Malawi of 1995. Sexual Offences Act of 2013. Dress Act of 1973. Censorship and Control of Entertainments Ghana Act of 1968. Marriage Act of 2015. Constitution of Ghana of 1992. Gender Equality Act of 2013. Impact of the African Charter and Women’s Protocol in selected African states 327
Marriage, Divorce and Family Relations Act Constitution of the Federal Republic of of 2015. Nigeria of 1979. Prevention of Domestic Violence Act of Constitution of the Federal Republic of 2006. Nigeria of 1999. Trafficking in Persons Act of 2015. National Human Rights Commission Deceased Estates (Wills, Inheritance and (Amendment) Act of 2010. Protection) Act of 2011. African Charter on Human and Peoples’ Child Care, Protection and Justice Act of Rights (Ratification and Enforcement) 2010. Act of 1983. Disability Act of 2012. State Security (Detention of Persons) (Amendment) Decree 2 of 1994. Mauritius Constitution (Suspension and Modification) Decree of 1984. Constitution of the Republic of Mauritius of State Security (Detention of Persons) Decree 1968. of 1984. Equal Opportunities Act 42 of 2008. Military Courts (Special Powers) Decree of 1984. Employment Rights Act 33 of 2008. Treason and Other Offences (Special Mili- Equal Opportunities Act 42 of 2008. tary Tribunals) Decree of 1986. Occupational Health and Safety Act 28 of Civil Disturbances (Special Tribunals) 2005. Decree of 1987. Training and Employment of Disabled Academic Staff Union of Universities Persons Act 9 of 1996. (Proscription and Prohibition from Partic- National Pensions Act 44 of 1976. ipation in Trade Union) Decree of 1992. Public Health Act of 1925. Treason and Treasonable Offences Decree of National Council for the Rehabilitation of 1993. Disabled Act 37 of 1986. Political Parties (Registration and Activities) The Education Act (RL2/6031957) & Decree 1998Cultural Charter for Africa of Education (Amendment) Act 33 of 1977. 1976. Social Aid Act 2 of 1983. State Security (Detention of Persons) Equal Opportunities Act of 2008. (Amendment) (Repeal) Decree 18 of 1996. Domestic Violence Act (amendments) of 2004, 2007 and 2011. Political Parties Dissolution Decree 114 of 1999. Equal Opportunities Act of 2012. Newspapers Registration Decree 43 of 1993. Combating of Trafficking in Persons Act of 2009. Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Revision of the Civil Code of 2011. Decree 63 of 1999. Criminal Code Amendment of 2012. Treaty to establish the African Union (Ratifi- cation and Enforcement) Act of 2003. Nigeria National Human Rights Commission (Amendment) Act of 2010. Constitution of the Federal Republic of Freedom of Information Act of 2011. Nigeria of 1960. Child’s Rights Act of 2003. Constitution of the Federal Republic of Nigeria of 1963. 328 Bibliography
Sierra Leone Persons with Disabilities Act of 2010. Ant-Trafficking in Persons Act of 2008. Constitution of Sierra Leone of 1991. The HIV/AIDS (Prevention and Control) Devolution of Estates Act 2007. Act of 2008. Disability Act of 2011. National Prosecutions Service Act of 2008. Domestic Violence Act of 2007. Judiciary Administration Act of 2011. Legal Aid Act of 2012. The Declaration of Name Act of 1964. Registration of Customary Marriage and Divorce Act of 2008. Uganda Sexual Offences Act of 2012. Constitution of Uganda of 1995. South Africa Ratification of Treaties Act of 1998.
Abolition of Corporal Punishment Act of Zimbabwe 1997. Aliens Control Act of 1991. Access to Information and Protection of Civil Union Act of 2006. Privacy Act of 2002. Choice on Termination of Pregnancy Administration of Estate Act of 1997. Amendment Act of 2004. Constitution of Zimbabwe of 2013. Constitution of South Africa of 1996. Criminal Law (Codification and Reform) Criminal Procedure Act of 1977. Act of 2006. Employment Equity Act 55 of 1998. Domestic Violence Act of 2006. Sexual Offences and Related Matters Domestic Violence Act of 2007. Amendment Act of 2007. Education Act of 2004. Violence against Persons (Prohibition) Act Maintenance Act of 1999. of 2015. Matrimonial Causes Act of 1987. Trafficking in Persons (Prohibition) Enforce- Public Order and Security Act of 2002. ment and Administration Act of 2015. Sexual Offences Act of 2001. Constitution of the Federal Republic of Zimbabwe Amendment Act of 1993. Nigeria (Third Alteration) Act of 2011. Same Sex Marriage (Prohibition) Act of 2013.
Swaziland
The Constitution of Swaziland of 2005. Deeds Registry Act of 1968 Children’s Protection and Welfare Act of 2012
Tanzania
Constitution of the United Republic of Tanzania of 1977. Law of the Child Act of 2009. QUESTIONNAIRE USED FOR THE STUDY
The following questionnaire was used by researchers to carry out the study at the country level:
(i) Introduction
• Brief background and context of human rights in the country • Overview of the status of women’s rights in the country
(ii) Ratification of African Charter and the Maputo Protocol
• Have the countries ratified the African Charter and the Maputo Protocol? If so, when? Were any reservations entered? If yes, give reasons entered for reservations and whether they were later withdrawn. Provide reasons for withdrawal. If not withdrawn yet, is this issue being discussed or considered? • What is the process of ratification: Role of Parliament or the Executive? • What were the reasons for the ratification of the two instruments – were any reasons articulated in parliamentary debates or elsewhere? Please identify sources.
(iii) Identify government focal point
• Establish which department, person or ‘bench’ is the ‘focal point’ of the state’s response and responsibilities on the African Charter and the Maputo Protocol. While so doing, the researchers must take into account the following: • Are there different focal points? • What are their views about the channel of communication with the African Commission and the institutionalisation of the state’s responsibilities in relation to the African Charter and the Maputo Protocol?
(iv) Domestication or incorporation
• What is the constitutional status of the African Charter and the Maputo Protocol? (between the African Charter, the Maputo Protocol and the constitution or other legislation, which prevails?) • To what extent do the African Charter and the Maputo Protocol rights correspond to the domestic Bill of Rights? Are the African Charter and the Maputo Protocol rights included in a justiciable Bill of Rights? Has the Bill of Rights been changed after the state becoming a party to the Charter? • Has the African Charter or the Maputo Protocol been domesticated or ‘incorporated’ into ordinary legislation?
329 330 Questionnaire
• Which domestic legislation refers to the provisions of the African Charter and the Maputo Protocol?
(v) Legislative reform or adoption
• Was a compatibility study of domestic law with the African Charter and the Maputo Protocol undertaken before ratification of the two instruments? If yes, what were the findings of the study? • Has any implicit or explicit legislation been amended or adopted to give effect to the African Charter and the Maputo Protocol?
(vi) Policy reform or formulation
• Has any government policy (HIV/AIDS Strategy, Poverty Reduction Strategy Paper (PRSP), plan of action, white paper, codes, etc.) been adopted or amended to give effect to the African Charter and the Maputo Protocol? (explicit or implicit) • To what extent do government policies reflect the provisions of the general comments of the African Commission concerning women’s human rights?
(vii) Court judgments
• Have the African Charter, the Maputo Protocol, case-law by the African Commission or Resolutions or General Comments adopted by the African Commission been referred to as an interpretive source in any judgment by any of the domestic courts? If so, what was the effect on the judgment? • Have domestic courts used any provision of the African Charter or the Maputo Protocol as a basis of a remedy (as self-executing)? If so, describe.
(viii) Awareness and use by civil society
• What is the extent of awareness of the African Charter and the Maputo Protocol among civil society organisations? • To what extent have NGOs used the African Charter and the Maputo Protocol in their work? Advocacy, promotional tools, policy reviews, litigation, law reform, etc. (explicit or implicit?) Also, do they use concluding observations issued after state reports and other reports or resolutions of Commission, etc.? • Have NGOs with observer status submitted shadow reports to the Commission?
(ix) Awareness and use by lawyers and judicial officers (law societies and other practising lawyers)
• What is the extent of awareness of the African Charter and the Maputo Protocol among lawyers and the law society? • To what extent have lawyers used the African Charter and the Maputo Protocol in their arguments before courts? • To what extent do judicial officers demonstrate awareness or lack thereof of the African Charter and the Maputo Protocol?
(x) Higher education and academic writing
• Do the curriculum of law schools and other higher education institutions/ university faculties include the African Charter and the Maputo Protocol? If so, when was it introduced; what is its content? • To what extent do academics (especially in law) refer to or discuss the African Charter and the Maputo Protocol in academic writing? If so, what views are expressed? Impact of the African Charter and Women’s Protocol in selected African states 331
(xi) National human rights institutions (NHRIs, Ombudsman offices, etc.)
• Do these institutions include reference to the African Charter and the Maputo Protocol in their programmes? • Do these institutions follow up on the implementation of concluding observations and/or decisions of the African Commission? • Are they involved in the submission of state reports to the African Commission?
(xii) State reporting
• Which department(s) is responsible for state reporting under the African Charter and the Maputo Protocol? • Describe the process of preparing a report (inclusion of women, civil society; cross- departmental). • How many state reports have been presented to the African Commission? • Were the reports submitted within the time frame? If not, what were the reasons for the delay? • Who constituted the government delegation during the presentation of the state report? Were there women? Are concluding observations disseminated (by state, civil society)? • What were the pertinent concluding observations? • Has the government taken any steps to give effect to concluding observations? What steps? If no steps were taken, why not?
(xiii) Communications
• If any communication has been decided against the state, what exposure has been given to this finding? • Has the government taken any steps to give effect to this finding? • If no communication has ever been presented, do NGOs and civil society consider taking cases to the African Commission? If not, why not?
(xiv) Special mechanisms - promotional visits of the African Commission
• Has a promotional, protective or fact-finding visit by the African Commission taken place to the country? If so, what has the effect been and has any recommendation been given effect to by government? Has a special mechanism of the Commission visited the country and made recommendations to the country concerning women’s human rights? What has its effect been?
(xv) Factors that may impede or enhance the impact of the African Charter, the Maputo Protocol and the African Commission
• What are the factors that impede or enhanced the ‘impact’ of the African Charter in your country? • Consider whether a session of the African Commission has ever taken place in your country, and, if so, what its role was. • Consider whether a national has been a member of the African Commission and, if so, what role this factor played. • Consider the role of the media.