On constitutional values, Marikana and the demise of the SADC Tribunal
Posted: 23 August, 2012 Filed under: Magnus Killander | Tags: African Court on Human and Peoples’ Rights, criminal procedure, extreme inequalities, human rights, public violence, right to a fair trial, SADC, South African Constitution, unemployment 6 Comments »
Author: Magnus Killander
Senior Lecturer & Head of Research, Centre for Human Rights, University of Pretoria
Section 1 of the Constitution sets out the founding values of the Republic of South Africa: dignity, equality, human rights, non-racialism, non-sexism, constitutional supremacy, rule of law, regular elections, accountability, responsiveness and openness.
The tragic shootings in Marikana, which took place on 16 August 2012, have led not only to much needed discussion on how equipped and prepared the police are to respond to violent protest, but also discussion about the underlying factors which led to these protests, and why they were so violent. Important questions must be asked about the shootings. Video footage of the incident suggests that it was not a clear cut case of self-defence. Accountability must prevail, both for workers responsible for violence and the police. Hopefully the Commission of Inquiry, established by President Jacob Zuma, will receive a broad mandate to investigate not only the shootings, but also a range of related issues related to what happened before and after.
Should the African Union be accountable and answerable to the African Court on Human and Peoples’ Rights?
Posted: 11 July, 2012 Filed under: Roopanand Amar Mahadew | Tags: accountability, African Charter on Human and Peoples' Rights, African Court on Human and Peoples’ Rights, African Union, transparency 1 Comment »
Author: Roopanand Amar Mahadew
Doctoral candidate, Department of Political Science, University of Delhi
The African Court on Human and Peoples’ Rights (the Court) has recently delivered a judgment in the case of Femi Falana v The African Union. The judgment is rather controversial on various levels. Firstly, the Court decided to interpret Articles 5(3) and 34(6) which, read jointly, imply that individuals or Non-Governmental Organisations (NGOs) can have access to the Court only if the state from which they are has deposited the declaration accepting the jurisdiction of the Court in accordance with Article 34(6). This was certainly not the issue in the Falana case. What had to be determined was whether the African Union (AU), which is not a state party to the African Charter on Human and Peoples’ Rights or the Protocol establishing the African Court (the Protocol), could be sued and such an interrogation required the interpretation of Articles 3, 30 and 34 (1&4) of the Protocol. Secondly, the Court, at the very onset, failed to consider whether or not it has jurisdiction ratione personae and decided to proceed to judicial consideration of the applications which is procedurally flawed.
AU Assembly should consider human rights implications before adopting the Amending Merged African Court Protocol
Posted: 23 May, 2012 Filed under: Frans Viljoen | Tags: African Court of Justice, African Court of Justice and Human Rights, African Court on Human and Peoples’ Rights, African regional human rights system, criminal responsibility, Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Economic Community of West African States (ECOWAS), erode existing avenues for human rights redress, incompatible mandates, reduction of focus on and resources available, state responsibility 5 Comments »
Author: Frans Viljoen
Director, Centre for Human Rights, University of Pretoria; Professor of Human Rights Law
A radical change to the ever-altering African regional judicial landscape is looming large. Meeting in Addis Ababa in mid May 2012, the African Union (AU) ‘Government Experts and Ministers of Justice/Attorneys General on Legal Matters’ adopted the AU – Final Court Protocol – As adopted by the Ministers 17 May (Amending Merged Court Protocol, Exp/Min/IV/Rev.7, 15 May 2012). This draft will in all likelihood serve before the meeting of the AU Heads of State and Government (AU Assembly), to be held in July, in Malawi. If adopted by the AU Assembly, the Protocol will confer upon the to-be-established African Court of Justice and Human Rights the jurisdiction to convict and sentence individuals for international crimes. This paper aims to highlight some concerns, particularly from a human rights angle, about the Amending Merged Court Protocol, in its current form, and argues that the complex implications arising from the suggested amendments require more deliberation and broad inclusive discussion.
Will Nubian children have to go to the African Court?
Posted: 13 April, 2012 Filed under: Ayalew Getachew Assefa | Tags: ACERWC, African Court on Human and Peoples’ Rights, Kenya, Nubian children, right to education 4 Comments »
Author: Ayalew Getachew Assefa
Lecturer in Law, Makelle University, Ethiopia
Reflections on the Decision of the African Committee of Experts on the Rights and Welfare of the Child concerning the violation of the rights of Nubian children in Kenya
The African Committee of Experts on the Rights and Welfare of the Child (the Committee) has recently made a decision on the communication concerning the violation of the rights of Nubian children in Kenya. (Communication 002/2009 Institute for Human Rights and Development in Africa and Open Society Justice Initiative on behalf of children of Nubian descent in Kenya v Kenya). This body’s first ever decision tells much about the avowed intent of the Committee to address the challenges of the Nubian children as it goes a great length despite the continuous disregard of cooperation from the government of Kenya. In its well-articulated decision, the Committee finds the Government of Kenya in violation of the right to non-discrimination, nationality, health and health services, protection against statelessness and education of Nubian Children living in Kenya. Addressing a wide range of issues, the Committee even goes beyond what was requested by the applicant and interpreted Article 31 of the African Charter on the Rights and Welfare of the Child (African Children’s Charter) in the light of the issues raised (para 66).
