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Download This Issue As a Full-Text AFRICAN HUMAN RIGHTS LAW JOURNAL Volume 7 No 1 2007 The financial assistance of the European Union is gratefully acknowledged First published 2001 # JUTA Law Mercury Crescent Hillstar, Wetton 7780 This book is copyright under the Berne Convention. In terms of the Copyright Act 98 of 1978 no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the Publisher. ISSN 1609-073X Cover design: Colette Alves Typeset in 10 on 12 pt Stone Sans by ANdtp Services, Cape Town Printed and bound by ????? CONTENTS Editorial . ...................................... v Articles The magnificent seven: Africa’s response to US article 98 by Deborah Helen Cotton and Godfrey Odhiambo Odongo .... 1 Counter-terrorism legislation and the protection of human rights: A survey of selected international practice by Cephas Lumina ................................ 35 From mandates to economic partnerships: The return to proper statehood in Africa by Hennie Strydom ................................ 68 Arbitration and human rights in Africa by Andrew I Chukwuemerie .......................... 103 The absence of a derogation clause from the African Charter on Human and Peoples’ Rights: A critical discussion by Laurent Sermet ................................ 142 The Congo/Uganda case: A comment on the main legal issues by Faustin Z Ntoubandi............................. 162 Utilising the promotional mandate of the African Commission on Human and Peoples’ Rights to promote human rights education in Africa by Sisay Alemahu Yeshanew ......................... 191 When a child is not a child: The scourge of child soldering in Africa by Divya Singh .................................. 206 Beyond justiciability: Realising the promise of socio-economic rights in Nigeria by Stanley Ibe ................................... 225 Recent developments A comment on the Human Rights Watch Report ‘Unprotected migrants: Zimbabweans in South Africa’s Limpopo Province’ by Jonathan Klaaren ............................... 249 Still an infant or now a toddler? The work of the African Committee of Experts on the Rights and Welfare of the Child and its 8th ordinary session by Benyam D Mezmur ............................. 258 iii Regional Symposium on Harmonisation of Laws on Children in Eastern and Southern Africa, 9-10 May 2007 by Christopher Mbazira............................. 276 iv AFRICAN HUMAN RIGHTS LAW JOURNAL Editorial Three organs are responsible to supervise the African Union (AU) human rights system: the African Commission on Human and Peoples’ Rights (African Commission), the African Court on Human and Peoples’ Rights (African Court) and the Committee of Experts on the Rights of the Child (African Children’s Rights Committee). Each of these organs is composed of eleven members. This issue of the African Human Rights Law Journal appears as the African Commission, which first met in November 1987, prepares to celebrate 20 years of existence. During its June 2007 meeting, held in Accra, Ghana, the AU Executive Council elected five new members to serve on the African Commission. The terms of four commissioners were expiring, while a fifth position had to be filled because the AU declared the position of Commissioner Babana, from Mauritania, vacant, due to his consistent failure to attend sessions of the African Commission. Mr Babana would have served another two years of his term, had he not been replaced. This is a significant advance, as it represents the first time that article 39(2) of the African Charter has been given effect. According to this provision, upon a unanimous decision of the Com- mission that ‘a member has stopped discharging his duties for any reason other than a temporary absence’, the Chairperson of the Com- mission must inform the Chairperson of the AU Commission, ‘who shall then declare the seat vacant’. Only one of the five vacancies on the African Commission was filled by an incumbent commissioner, Dr Angela Melo, who has also been serving as the Commission’s Special Rapporteur on the Rights of Women in Africa. The four newcomers are Ms Catherine Dupe Atoki (from Nigeria), Ms Zainabu Sylvie Kayitsesi (from Rwanda), Ms Soyata Maiga (from Mali), and Mr Yeung Kam John Yeung Sik Yuen (from Mauritius). With the exception of Ms Kayitsesi, who will serve a two- year term (as a replacement for Commissioner Babana), they will all serve full six-year terms. The new commissioners will be inaugurated when the African Com- mission meets for its 42nd session in November 2007. A new era is set to begin. Not only will there be four new faces on the African Commis- v sion, but a new Chairperson and Deputy Chairperson will also have to be elected. The terms of both the Chairperson and Deputy Chairperson of the African Commission (together known as the ‘Bureau’), who have served at the Commission’s helm for two consecutive terms totalling four years, have expired. They have not made themselves available for re-election as commissioners. When the AU Commission called for nominations, it reminded state parties to ‘ensure adequate gender representation in their nominations and to bear in mind the need to continue to enhance the independence and operational integrity of the Human Rights Commission in the spirit of the Grand Bay Declaration of 1999 and the Kigali Declaration of 8 May 2003’ (AU Doc BC/OLC/66/4/Vol.XX, 29 March 2007). Accord- ing to available information, the new members fit the profile of inde- pendence from government: Ms Atoki is the commissioner responsible for gender issues in the National Human Rights Commission of Nigeria; Ms Kayitsesi is President of the National Human Rights Commission on Rwanda; Ms Maiga is Chairperson of the Association of Women Jurists of Mali; and Mr Sik Yuen is the Chief Justice of Mauritius. For the first time, with seven women, there is a majority of female members serving on the African Commission. Before the 2007 election, the number of female commissioners stood at five. With the inaugura- tion of the new members, the African Commission will become the first organ operating within the ambit of the AU to have a majority of female members. The African Commission has indeed come a long way since 1987, when it was an all-male body, and from 1993, when Ms Vera Duarte Martins was elected as the first female commissioner. It is a welcome and appropriate honour to befall the African Commission, not only because it is the primary body for the human rights of all Africans, but also because it counts the Protocol on the Rights of Women in Africa as one of the major normative frameworks that it needs to implement. The true challenge to the new Commission is to ensure that more female representation translates into improved human rights realisation – especially, but not exclusively, of those guar- anteed under the Women’s Protocol. The African Commission’s gender composition is all the more striking if compared with other quasi-judicial and judicial human rights bodies: The Inter-American Commission of Human Rights has no female mem- ber among its seven members; the Inter-American Court of Human Rights has three out of seven; the European Court of Human Rights 13 out of 47; and the African Court on Human and Peoples’ Rights two female judges out of a total of 11. Elected in January 2006, the 11 judges on the African Court serve terms of two, four and six years. These different terms were allocated by a draw of lots, and are aimed at ensuring continuity in membership. Since their election, the African Court had elected a President (Mr Ger- vi ard Niyungeko from Burundi) and Vice-President (Mr Modibo Guindo from Mali). The judges had also held numerous meetings, mainly occu- pying themselves with the elaboration of the Court’s Rules of Proce- dure. Hopefully, the judges will finalise the Court’s operational framework before the terms of some of its members will expire, in January 2008. The first African Children’s Rights Committee was elected in May 2002. As Mezmur’s contribution in this issue shows, this Committee at its meeting at the end of 2006 adopted some important documents, including its long-awaited rules for the consideration of individual com- munications and criteria for observer status of non-governmental orga- nisations. The final versions of these documents will be published in the African Human Rights Law Journal as soon as they become officially available. The Guidelines for State Reporting have previously been pub- lished in the Journal ((2003) 3 AHRLJ 347). Other contributions in this issue show concern for a wide variety of topics related to human rights in Africa, such as the attempts to under- mine the International Criminal Court through bilateral agreements, legislation countering terrorism, economic partnerships and arbitration. Together, these contributions underscore the inevitability of a multi- disciplinary approach to human rights. Other contributions focus more squarely on issues of a legal nature, such as the need for a dero- gation clause in the African Charter, and the justiciability of socio-eco- nomic rights. The Journal hopes to maintain a balance between contributions that clearly deal with human rights law, and those that go beyond legal strictures. The editors thank the following people who acted as referees over the period since the previous issue of the Journal appeared: Jean Allain, Cecile Aptel, Christo Botha, Danny Bradlow, Benyam
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