Propos conclusifs et leçons importantes (intervention en Anglais et Français)/Concluding remarks and important lessons (intervention in English and French)

frans-viljoen-2021Author: Frans Viljoen
Professeur de droit international des droits de l’homme, directeur du Centre des droits de l’homme, Faculté de droit, Université de Pretoria
Professor of international human rights law, Director, Centre for Human Rights, Faculty of Law, University of Pretoria

Merci beaucoup Monsieur le modérateur,

C’est un réel honneur et important privilège de prononcer quelques mots de clôture de cette conférence de vernissage virtuelle de l’ouvrage du Juge Albie Sachs.

Telle une icône des droits humains et une source d’inspiration, la notoriété du juge Albie Sachs dépasse les frontières nationales. Le Juge réunit les gens de divers horizons dans le monde. La traduction de son ouvrage, L’étrange alchimie de la vie et de la loi rend son œuvre initiale, The Strange Alchemy of Life and Law ainsi que les arrêts de la Cour constitutionnelle sud-africaine accessible à un public assez large. Pour nous à la Pretoria University Law Press (PULP), l’accès libre et la grande accessibilité aux œuvres scientifiques sont très importants. Nous sommes, ainsi donc, très heureux de vernir cet ouvrage aujourd’hui. Nous espérons que cela accroitra le dialogue judiciaire entre les juges des pays du monde Anglo-Saxon et ceux de droit civil et aidera à briser les clivages hérités de la colonisation, en Afrique en particulier.

Let me continue in English. We at the Centre for Human Rights, University of Pretoria have since 2000 been running the Masters in Human Rights and Democratisation in Africa (HRDA). As a teacher on this programme, I am always struck by the great difference in approach of our students from the Francophone background, compared to students with an Anglophone background and seeped in a Common Law legal culture. It is as if we live in two very different scholarly worlds in Africa. Scholarly works on a particular theme, including the African human rights system, often develop along parallel lines, with only rare intersecting moments in the form of an occasional cross-reference.  Judicial decisions similarly reflect distinctly different communities of practice that often seemingly do not really communicate with, or even take notice of, each other.  What judicial dialogue has there for example been between two main post-1990 African constitutional traditions, that of the Constitutional Courts of Benin and South Africa?  Judge Sachs’s L’étrange alchimie de la vie et de la loi provides access to important excerpts of the South African Constitutional Court in the French language. We trust that today’s event represents a small step to confirm that this dialogue is really possible and draw attention to the need that it should be encouraged and cultivated.

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A call to shift the seat: The Gambia is not a suitable seat for the African Commission on Human and Peoples’ Rights

frans_viljoen_newAuthor: Frans Viljoen
Director, Centre for Human Rights, University of Pretoria; Professor of Human Rights Law

In 1986, the African Charter on Human and Peoples’ Rights (African Charter) entered into force. Under the African Charter, the African Commission on Human and Peoples’ Rights (African Commission) is established to monitor state compliance with the Charter. The Assembly of Heads of State and Government of the Organization of African Unity (OAU) in 1987 decided that the Commission’s Secretariat should be based in Banjul, The Gambia. It has been located in Banjul ever since.

The initial rationale for the choice of seat has since fallen away

At the time this decision was taken, the choice of Banjul made much sense. Much of the drafting of the African Charter took place in Banjul, to the extent that the African Charter is often referred to as the ‘Banjul Charter’. In fact, The Gambia was one of the few states in Africa that, at the time, had any claim to democratic credentials. The head of state at the time, President Jawara, strongly supported the drafting process of the Charter, and assisted in overcoming political difficulties that arose in the drafting process.

However, this situation has changed dramatically. Since Jawara’s removal from power through a coup d’état in 1994, The Gambia has lost its claim to democratic legitimacy. The 1994 coup leader and current President, Jammeh, has now been in power for almost 20 years. While elections have subsequently been held, they are widely regarded as not meeting the standard of “free and fair”. In 2011, the Economic Community of West African States (ECOWAS) decided not to send an electoral observer mission to The Gambia for the presidential election because the political environment was not conducive to free and fair elections (http://thinkafricapress.com/gambia/jammeh-win-extend-rule). The Gambia is now generally regarded as the “odd country out”, in an ever-democratising Africa, and counts among the most undemocratic and authoritarian states on the continent.

At the first session after the unconstitutional change of government had taken place, the Commission adopted a resolution condemning the coup as a “flagrant and grave violation of the right of The Gambian people to freely choose their government”, and called on the military government to observe international human rights standards (Resolution on The Gambia, adopted at the Commission’s 17th session, 22 March 1995, Eighth Annual Activity Report, Annex VIII). However, short of finding a violation of the Charter in a communication submitted by the Former President Jawara (communications 147/95, 149/95 (joined), Jawara v The Gambia (2000)), the Commission seemed initially to have settled comfortably into life under the new regime.

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AU Assembly should consider human rights implications before adopting the Amending Merged African Court Protocol

frans_viljoen_newAuthor: 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.

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