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African Human Rights Law Journal AFRICAN HUMAN RIGHTS LAW JOURNAL Volume 11 No 2 2011 ahrlj-2011-2-prelims.indd 1 12/15/11 10:52:21 AM The financial assistance of the European Union is gratefully acknowledged. © JUTA Law First Floor Sunclare Building 21 Dreyer Street Claremont 7708 South Africa This journal 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 Shumani Printers ahrlj-2011-2-prelims.indd 2 12/15/11 10:52:21 AM CONTENTS Editorial ................................................................................... v Focus: 30 years of the African Charter on Human and Peoples’ Rights: Looking forward while looking back Approaches to the justiciability of economic, social and cultural rights in the jurisprudence of the African Commission on Human and Peoples’ Rights: Progress and perspectives by Sisay Alemahu Yeshanew .................................................. 317 The human right to water in the corpus and jurisprudence of the African human rights system by Takele Soboka Bulto .......................................................... 341 The African Commission on Human and Peoples’ Rights and the promotion and protection of sexual and reproductive rights ... 368 by Victoria Balogun and Ebenezer Durojaye Have the norms and jurisprudence of the African human rights system been pro-poor? by Obiora Okafor and Basil Ugochukwu ................................. 396 Customary communities as ‘peoples’ and their customary tenure as ‘culture’: What we can do with the Endorois decision by Wilmien Wicomb and Henk Smith ..................................... 422 A covenant of compassion: African humanism and the rights of solidarity in the African Charter on Human and Peoples’ Rights by Benjamin Elias Winks ........................................................ 447 Unique in international human rights law: Article 20(2) and the right to resist in the African Charter on Human and Peoples’ Rights by Shannonbrooke Murphy ................................................... 465 The African Court on Human and Peoples’ Rights’ order in respect of the situation in Libya: A watershed in the regional protection of human rights? by Judy Oder ......................................................................... 495 Fundamental Rights Enforcement Procedure Rules, 2009 as a tool for the enforcement of the African Charter on Human and Peoples’ Rights in Nigeria: The need for far-reaching reform by Abiola Sanni ..................................................................... 511 iii ahrlj-2011-2-prelims.indd 3 12/15/11 10:52:21 AM iv (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL Articles Ubuntu as a moral theory and human rights in South Africa by Thaddeus Metz ................................................................. 532 Indigenous peoples and the right to culture: The potential significance for African indigenous communities of the Committee on Economic, Social and Cultural Rights’ General Comment 21 by Amanda Barratt and Ashimizo Afadameh-Adeyemi ............ 560 The relationship between the right of access to education and work, and sub-regional economic integration in Africa by Malebakeng Forere ........................................................... 588 Enhancing the protection of the rights of victims of international crimes: A model for East Africa by Benson Chinedu Olugbuo and George Mukundi Wachira .... 608 The right to economic empowerment of persons with disabilities in Nigeria: How enabled? by Anwuli Irene Ofuani .......................................................... 639 The United Nations’ Mapping Exercise Report and Uganda’s involvement in the Democratic Republic of Congo conflict from 1996 to 2003 by Phillip Apuuli Kasaija ........................................................ 659 Recent developments Prosecuting the President of Sudan: A dispute between the African Union and the International Criminal Court by Johan D van der Vyver ...................................................... 683 Dawn of a new decade? The 16th and 17th sessions of the African Committee of Experts on the Rights and Welfare of the Child by Lorenzo Wakefield and Usang M Assim .............................. 699 ahrlj-2011-2-prelims.indd 4 12/15/11 10:52:21 AM AFRICAN HUMAN RIGHTS LAW JOURNAL Editorial The content of this issue is divided into three parts. In the first part, special attention is given to the commemoration of 25 years since the entry into force of the African Charter on Human and Peoples’ Rights (African Charter) on 21 October 1986, and 30 years since its adop- tion, on 27 June 1986, in Nairobi, Kenya. This ‘focus’ part is made up of selected papers delivered at a conference, co-hosted by the African Commission on Human and Peoples’ Rights (African Commission) and the Centre for Human Rights, and held at the Faculty of Law, University of Pretoria, on 11 July 2011. This conference, entitled ‘Thirty years of the African Charter on Human and Peoples’ Rights: Looking forward while looking back’, was organised in conjunction with the twentieth African Human Rights Moot Court Competition. The papers contained in this volume were subsequent to their presentations peer-reviewed and reworked for publication. As the rich collection of papers demonstrates, the African Commis- sion has over the almost 25 years of its existence interpreted the African Charter as a living instrument. While the 25/30 year mark invites some reflection on the possibility of reforming the Charter, the progressive interpretive approach of the African Commission remedied many of the defects or deficiencies in the Charter text, including the ‘claw-back’ clauses and the limited provision for socio-economic rights. Setting in motion a process towards the amendment of the text may solidify these gains, but may – equally possibly – see the reversal of these gains in a process that ultimately requires the approval of and adoption by African Union (AU) member states. The contributions in this ‘focus’ part deal with some of the most significant advances and remaining challenges in the African human rights system. These issues are, for example, the emerging expansion of socio-economic rights protection to include the right to water and sexual and reproductive rights; the exploitation of the African Charter as a pro-poor treaty; and the question whether the African Charter provides for the right to resist. One article discusses the situation in Libya, and the referral by the African Commission of the first case to the African Court on Human and Peoples’ Rights (African Court). This case draws attention to the suitability and implementation of provisional measures or orders, as well as the relationship between the Commis- sion and the Court. In this part, a number of prominent authors make innovative contributions to these and other contemporary debates. v ahrlj-2011-2-prelims.indd 5 12/15/11 10:52:21 AM vi (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL In the second part of this issue, issues of broader relevance are can- vassed. In some respects, these contributions enter into a conversation with conference papers, for example on the notion of ubuntu and soli- darity, and on socio-economic rights. Other papers deal with matters of emerging concern, such as the economic empowerment of people with disabilities and the rights of victims of international crimes. As has become customary, the concluding part of the Journal is devoted to ‘recent developments’. The prevailing tension between the AU and the International Criminal Court is analysed against the back- ground of the attempts to prosecute incumbent Sudanese President Al Bashir for crimes against humanity and war crimes, and his official visits to two AU member states, Chad and Kenya. In the last contribu- tion, the meetings of the African Committee of Experts on the Rights and Welfare of the Child, in November 2010 and March 2011, are dis- cussed. The authors argue that a ‘new era’ has dawned, and cite as evidence the strengthened collaboration with and role of civil society in the Committee’s activities. They also discuss the finalisation of the first communication by the Committee. These are indeed encouraging developments – even if they are coming rather late in the day since the Committee has been in existence since 2002. It would be recalled that even though the African Charter on the Rights and Welfare of the Child entered into force in 1999, it was only in 2002 that the Committee met for the first time. This year therefore marks a decade in its existence. While this milestone has passed quietly, there are indications that the next decade would hold much more to celebrate. We acknowledge with appreciation and sincerely thank the indepen- dent reviewers who gave their time and talents to ensure the consistent quality of the Journal: Prudence Acirokop; Atangcho Akonumbo; Jean Allain; David Bilchitz; Kealeboga Bojosi; Danny Bradlow; Amanda Cahill; Rebecca Cook; John Dugard: Solomon Ebobrah; Robert Eno; Charles Fombad; Ilze Grobbelaar-Du Plessis; Christof Heyns; Vinodh Jaichand; Waruguru Kaguongo; Grace Kamugisha; André Keet; Paavo Kotiaho; Muhammed Ladan; Christopher Mbazira; Benyam Mezmur; Anthony Munene; Tim Murithi; Salima Namusobya;
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