Manisuli Ssenyonjo

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

International treaties that deal with specific human rights and groups of persons Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment United Nations Convention on the Elimination of All Forms of Discrimination against Women United Nations Convention on the Rights of the Child United Nations International Convention on the Elimination of All Forms of Racial Discrimination United Nations International Convention on the Protection of All Persons from Enforced Disappearance ●

The Rise of the African Union Opposition to the International Criminal Court’s Investigations and Prosecutions of African Leaders

On 9 January 2012 the African Union (AU) stated that it ‘shall oppose any ill-considered, self-serving decisions of the ICC [International Criminal Court] as well as any pretensions or double standards that become evident from the investigations, prosecutions and decisions by the ICC relating to situations in Africa’. These relate to the United Nations [UN] Security Council referrals (in Darfur/Sudan and Libya) and the Prosecutor’s investigations proprio motu (in Kenya). This article considers the rise of the AU opposition to the ICC investigations and prosecutions in Africa directed against current African State leaders focusing on three issues. First, whether customary international law creates an exception to Head of State immunity when international courts, such as the ICC, seek a Head of State’s arrest for the commission of international crimes. Second, whether the International Court of Justice can decide on immunity of State officials sought by the ICC. Third, whether the AU should empower the African Court of Justice and Human Rights with the jurisdiction to prosecute individuals for international crimes committed in Africa.

The Applicability of International Human Rights Law to Non-State Actors: What Relevance to Economic, Social and Cultural Rights?

In recent years, non-state actors (NSAs) such as transnational corporations, civil society groups, international organisations (including the World Trade Organisation, the World Bank and the International Monetary Fund) as well as armed opposition or terrorist groups have assumed major roles in relation to the progressive enjoyment throughout the world of all human rights, and economic, social and cultural rights in particular. Despite this development, NSAs are still not bound directly by existing international human rights treaties which apply to states parties. The fact, however, is that the growth in the wealth and power of NSAs has meant an enhanced potential for NSAs to promote or undermine respect for human rights. This raises two fundamental questions examined in this article: (1) how should international human rights law ensure that the activities of NSAs are consistent with international human rights standards? (2) How should accountability of NSAs be promoted effectively when violations of international human rights law occur? It is concluded that in order to ensure more accountability for human rights violations by NSAs, it is relevant to consider the adoption of a Statute of an International Court of Human Rights, to which NSAs could also become parties in addition to states.

Culture and the Human Rights of Women in Africa: Between Light and Shadow

Despite the ratification by African states of several human rights instruments protecting the human rights of women in Africa, and the solemn commitment of the African states to eliminate all forms of discrimination and harmful practices against women, women in Africa still continue to experience human rights violations. Most African women are denied the equal enjoyment of their human rights, in particular by virtue of the lesser status ascribed to them by tradition and custom, or as a result of overt or covert discrimination. Many women in Africa experience distinct forms of discrimination due to the intersection of sex with such factors as race, language, religion, political and other opinion, national or social origin, property, birth, or other factors, such as age, disability, marital, refugee or migrant status, resulting in compounded disadvantage. Therefore, much remains to be done to realize the human rights of women in Africa. This article examines the relationship between culture and womens human rights, and makes some recommendations for the effective realization of these rights.

Protocol to the African Charter on Human And Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Recalling resolution AHGéRes.230 (XXX) adopted by the Assembly of Heads of State and Government in June 1994 in Tunis, Tunisia, requesting the Secretary-General to convene a Government experts` meeting to ponder, in conjunction with the African Commission, over the means to enhance the efficiency of the African commission and to consider in particular the establishment of an African Court on Human and Peoples` Rights;

Reflections on state obligations with respect to economic, social and cultural rights in international human rights law

In 1948 the Universal Declaration of Human Rights (UDHR) declared a wide range of human rights including economic, social and cultural rights as a ‘common standard of achievement’ for all peoples and all nations. At an international level, these rights were reinforced by a legally binding international treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966, and more recently by the Optional Protocol to the ICESCR as adopted by the UN General Assembly on 10 December 2008, and opened for signature on 24 September 2009. Despite these positive developments, six decades after the UDHR, there are still questions regarding the status of economic, social and cultural rights as human rights in international law. In particular, four key questions regarding these rights, are addressed in this article: (1) what are the real human rights obligations of states parties to the ICESCR? (2) Are such obligations territorially limited or is there scope for extra-territorial obligations? (3) Are states permitted to derogate from (some) economic, social and cultural (ESC) rights during emergencies despite the fact that the ICESCR does not contain a derogation clause either permitting or prohibiting derogations? (4) Was it really necessary to adopt in 2008 an Optional Protocol to the ICESCR to provide for the competence of the committee monitoring the obligations of states parties under the ICESCR, the Committee on Economic, Social and Cultural Rights, to receive and consider communications alleging violations of any of the rights protected by the ICESCR? And should states parties to the ICESCR sign and ratify this Optional Protocol without delay?

Direct Access to the African Court on Human and Peoples’ Rights by Individuals and Non Governmental Organisations: An Overview of the Emerging Jurisprudence of the African Court 2008-2012

Articles 5(3) and 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights require that an application before the African Court on Human and Peoples’ Rights (the Court) will not be ‘received’ unless two conditions are fulfilled. First, the application must be filed against a State which has ratified the Protocol. Second, an application can be received only against a State which made an optional declaration accepting the competence of the Court to receive cases from Non Governmental organisations (NGOs) with observer status before the Commission and individuals. The vast majority of State parties to the Protocol have not filed (and are not likely to file in the near future) a declaration to allow NGOs and individuals, most likely to bring human rights cases before the Court, direct access to the Court. This article examines the impact of the limitation imposed on direct access to the Court by individuals and NGOs on the African Court’s jurisdiction by considering the applications decided by the Court since it started its operations in 2006 up to December 2012. It is argued that the limitation is a major challenge currently facing the Court and that it has adversely affected the exercise of the Court’s jurisdiction. It is concluded that allowing NGOs and individuals direct access to the Court will make a significant contribution to the attainment of the objectives of the African Charter and the Court’s Protocol.

The African Regional Human Rights System

All key matters on human rights in Africa since the adoption of the African Charter in 1981 are impressively considered in the chapters of the present book. There are twenty one chapters on key human rights issues and themes in Africa, written by highly qualified human rights authors actively involved in the current teaching and practice of human rights, containing valuable insights and critical refl ections. The authors consider what has been achieved since 1981, and remains to be achieved and the prospects for the future of the African human rights system. The range of opinions and perspectives, combined with the authors’ critical analysis and expertise, make this book a unique and significant contribution to the African regional human rights system.

Protection of Traditional Knowledge and Human Rights Obligations: The Status of Discussion in International Organisations

Traditional knowledge and human rights are two fields that have largely developed separately despite being interrelated. A number of international institutions are pursuing different priorities related to the protection of traditional knowledge. The underlying theme of all these discussions could be linked to various human rights obligations. Despite this reality, in the discussions on the protection and the use of traditional knowledge within the World Trade Organisation, the Convention of Biological Diversity, and the World Intellectual Property Organisation, the human rights dimension is often sidelined. The main purpose of this article is to examine the status of the ongoing discussion on the protection of traditional knowledge including the level of coordination among these international processes. The article argues that it is crucial to integrate human rights dimensions in the discussion of traditional knowledge in other international fora.

The African Commission and Court on Human and Peoples’ Rights

Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya,ACommHPR, Communication 276/03 (2009) ...............................................................171, 176, 177, 184, 185 Dawda Jawara v The Gambia,ACommHPR, Communications 147/95 and 149/96 (2000) .........................................................................................................169 Maria Baes v Zaire,ACommHPR, Communication 31/89 (1995) .......................169 Purohit and Moore v The Gambia,ACommHPR, Communication 241/2001 (2003) .........................................................................................................183 Tanganyika Law Society and the Legal and Human Rights Centre v The United Republic of Tanzania,ACtHPR,Application No 009/11-011/11, 22 September 2011 ............................................................................................................168 The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights (SERAC) v Nigeria,ACommHPR, Communication 155/96 (2001) ............................................156, 168, 169, 170, 171, 183, 184, 192, 204