The idea of an African passport and the freedom of movement of persons in the continent: Only wishful thinking?
Posted: 22 February, 2016 Filed under: Cristiano d'Orsi | Tags: Africa, African Charter, African passport, African Union, asylum-seekers, AU Executive Council, Declaration on Migration, EAC, ECOWAS, federation, freedom of movement, ICCPR, ICRMW, IDP, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, International Covenant on Civil and Political Rights, migration, Protocol on Facilitation of Movement of Persons, refugees, regional integration, SADC, territory, United States of Africa, USAf 4 Comments
Author: Cristiano d’Orsi
Post-Doctoral Researcher and Lecturer, Centre for Human Rights, Faculty of Law, University of Pretoria (South Africa)
“Hail! United States of Africa-free!
Hail! Motherland most bright, divinely fair!
State in perfect sisterhood united,
Born of truth; mighty thou shalt ever be.”
This is the incipit of the poem Hail, United States of Africa, composed in 1924 by M.M. Garvey, a famous Pan-Africanist leader.
This poem is considered to have initiated the concept of United States of Africa (USAf), a federation, extensible to all the fifty-four sovereign states, on the African continent.
In 2002, at the launch of the African Union (AU), President T. Mbeki, its first chairman, proclaimed that: “By forming the Union, the peoples of our continent have made the unequivocal statement that Africa must unite! We as Africans have a common and a shared destiny!”[1]
After that occasion, the concept of USAf has been highlighted in a more concrete way by other African leaders, such as A.O. Konaré in 2006,[2] M. Gaddafi in 2009 –the first to mention the possibility to issue a unique passport for the entire continent-[3] and, more recently, by R. Mugabe.[4]
The SADC Tribunal: Concerted efforts for waves of change we want to see
Posted: 19 June, 2015 Filed under: Patricia Mwanyisa | Tags: 2014 Protocol, access to justice, AEC, African Charter, Campbell Case, civil society, COMESA, ECCAS, ECOWAS, IGAD, justice, lawyers, legal mechanisms, ratification, RECs, SADC, SADC Heads of States, SADC Tribunal, Southern African Development Community, Zimbabwe 5 Comments
Author: Patricia Mwanyisa
Human Rights, Justice and Rule of Law Programme Officer, Open Society Initiative for Southern Africa (OSISA)
Victoria Falls in Zimbabwe is known for its spectacular and majestic water falls. In August last year it was not just water that was falling at Victoria Falls but the SADC Tribunal as we know it fell spectacularly as leaders from the Southern African Development Community approved a new protocol to reconstitute the SADC Tribunal. The new tribunal has a limited mandate. By adopting a new protocol, the leaders effectively buried the SADC Tribunal which used to operate under the 2000 protocol. They decided to ignore recommendations from their own legal advisors and attorney generals and created a new Tribunal whose mandate is limited only to the adjudication of inter-state disputes. Simply put, under the 2014 Protocol, citizens are deprived of their right to refer a dispute between themselves and their government to the SADC Tribunal. Without a tribunal, justice and redress will remain elusive for people of the region.
It is important to remember that central to the demise of the tribunal is the case of Mike Campbell and Others v Zimbabwe (Campbell Case) in which the Tribunal found in favor of Zimbabwean white farmers whose land had been compulsorily acquired and without compensation by the Zimbabwean government. In retaliation Zimbabwe strategically attacked the jurisdiction and operation of the tribunal, mobilized support for its suspension and ultimately, its eventual disbandment. By succumbing to the demands of Zimbabwe, SADC Heads of state have ultimately eliminated the access of individuals and groups to the Tribunal at the behest of one State [Zimbabwe] and consequently depriving the entire region of the benefits of such an important institution. Discussions and decisions on the utility of the Tribunal should rather surpass the opinion of one State’s argument based on just one case and personal short term gains. Even so, Zimbabweans themselves and particularly politicians and elected MPs who represent the people of that country must objectively review the wisdom in taking such a stance – more so at a time when Zimbabwe chairs the SADC bloc. They must never forget that they too are ordinary individuals who also depend on fair, transparent and accessible judicial mechanisms which they may need at some point in their lives regardless of their political affiliations. That is, at any given time the tide turns, politicians whether in opposition or in power are susceptible to becoming victims of State sanctioned attacks on the dignity of individuals, including political violence.
Love in a Time of Ebola: Africa deserves a human rights determination
Posted: 6 November, 2014 Filed under: Humphrey Sipalla | Tags: Africa, African Charter, African Commission, African Court, AU Human Rights Strategy, Ebola, Guinea, human rights, International Health Regulations, Liberia, outbreak, rule of law, Sierra Leone, United Nations, West Africa, WHO, World Health Organisation 1 Comment
Author: Humphrey Sipalla
Freelance editor
When the World Health Organisation (WHO) declared “a public health emergency of international concern” in the three fragile West African states of Guinea, Liberia and Sierra Leone, the walls fast closed on them and their peoples. Flight bans, citizen entry bans and ripple effects on trade have been announced by African countries, as well as globally. So severe have been the restrictions that vital energy and food supplies have dwindled, with riots breaking out in some areas. The affected countries have pleaded with “the world” to not inflict collective punishment on their populations, and indeed future.
These real world events have grounding in probably the most innocuously titled yet powerful treaty in the world. Nope, not the UN Charter, not the Geneva or Vienna Conventions… the International Health Regulations (IHR 2005). Usually, ‘regulations’ is legalese for subsidiary legislation. But these regulations treat probably the most incendiary issues in human society: infectious diseases and legality, if not morality of mitigating actions.
The IHR’s aim to provide maximum protection from the international spread of infectious diseases while causing minimal harm to global travel and commerce. It originates from the 1892 International Sanitary Convention that sought to control the spread of cholera in the Suez Canal, providing for coercive ship inspections and quarantines.
It may well be said that the Achilles-like duality of IHR, its true power and weakness, lies not in legal theory but sheer human behaviour. Infectious diseases are frightening. They compound the unknown and bring out the worst elements of our self-preservation instinct. Prior to the 2005 revision, states like India and Peru sat on critical information about disease outbreaks to avoid the punishing reactions of other states. Given the treatment of Guinea, Sierra Leone, Liberia, one wonders what exactly has changed in the real world.
Right to stand for elections as an independent candidate in the African human rights system: The death of the margin of appreciation doctrine?
Posted: 19 August, 2013 Filed under: Adem Kassie Abebe | Tags: African Charter, African Commission on Human and Peoples’ Rights, African Court, African Court on Human and Peoples’ Rights, constitution, elections, Inter-American Court on Human Rights, International Covenant on Civil and Political Rights, international human rights, margin of appreciation doctrine, Mtikila, right to association, right to equality, right to political participation, right to stand for elections, Tanzania, Tanzanian Court of Appeal 8 Comments
Author: Adem Kassie Abebe
Post-doctoral Fellow, University of Pretoria
Although the right to stand for elections is recognised as an essential aspect of the right to political participation, international human rights law does not specifically address the right of individuals to stand for elections as independent candidates, for example, without being a member of and sponsored by a political party. In fact, the only implied reference to independent candidacy is to be found in General Comment No 25 of the United Nations Human Rights Committee, the organ in charge of monitoring compliance with the International Covenant on Civil and Political Rights, on the right to participation. The Committee observes that “[t]he right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or of specific parties” (paragraph 21). What constitutes an “unreasonable” limit to the right of persons to stand for election is not apparent. As a result of the lack of a clear rule, the law and practice in relation to independent candidates varies across borders. In some countries, individuals must be members of political parties to be able to stand for election. In others, they may stand for elections as independent candidates. In some others, independent candidates are allowed in relation to local elections but not in relation to parliamentary and presidential elections.
It is within this context of uncertainty that the African Court had to decide whether the ban on independent candidacy in Tanzania was compatible with the right to equality, the right to political participation, and the right to association in the African Charter on Human and Peoples’ Rights (Tanganyika Law Society and The Legal and Human Rights Centre and Reverend Christopher Mtikila v The United Republic of Tanzania, Applications 009 and 011/2011). This case is interesting in many respects. Firstly, the case presented the African Court the first opportunity to address the margin of appreciation doctrine. Secondly, the application presented a test case to evaluate the trajectory of the African Court towards the jurisprudence of other international and regional human rights organs on similar issues. Thirdly, Tanzania is not the only African country that bans independent candidacy. The decision of the Court therefore has consequences for many other African countries.
Unmanned Aerial Vehicles: Call for an African Union resolution on the use of drones in Africa
Posted: 5 August, 2013 Filed under: Benjamin Ng’aru | Tags: Africa, African Charter, African Union, Al-Qaeda, Ben Emmerson QC, CIA, CIA's angry birds, constitutive act, Djibouti, drone strikes, Ethiopia, extra-judicial killings, Glomar response, human rights, Human Rights Watch, humanitarian law, International Court of Justice, international human rights, international law, right to fair trial, right to life, right to privacy, Seychelles, Somalia, UN Special Rapporteur on Counter Terrorism and Human Rights, UN Special Rapporteur on extrajudicial summary or arbitrary executions, United States of America, unmanned aerial vehicles 4 Comments
Author: Benjamin Ng’aru
Legal Assistant, Local Authorities Pensions Trust; Volunteer Programmes Assistant, Legal Exchange Centre, Nairobi, Kenya
On 15 March 2013 Chief Judge Merrick Garland of the United States (US) Court of Appeals Circuit in American Civil Liberties Union Foundation v Central Intelligence Agency (CIA) dismissed the CIA’s standard Glomar response to its expanded and clandestine programme to carry out targeted killings on suspected terrorist. Barely two months later, a High Court in Peshawar, Pakistan, held that drone strikes (and their continued use) “are a blatant violation of Basic Human Rights and are against the [United Nations] (UN) Charter, the UN General Assembly Resolution …and a violation of the sovereignty [of Pakistan]”. Whereas not fully specific on the human rights instruments violated, these judicial pronouncements point to an increasing dissatisfaction by the international community on the lack of a concise and regulated use of the “CIA’s angry birds”.
This note seeks to merely highlight possible violations of various rights including the right to life, right to fair trial as well as the right to privacy, which are all enshrined in the African Charter; and call upon the African Union (AU), through its various organs, to promote more transparency on the use of drones and foster the enactment of a continental regulatory framework to govern the use of Unmanned Aerial Vehicles by western nations on African soil.
The use of drones in African’s airspace has been on a steep rise. The latest documented incident was on 27 May 2013 when Al-Shabaab allegedly shot down a UAS Camcopter S-100 near the town of Buulo Mareer, southern Somalia. The London based Bureau of Investigative Journalism estimates that over 200 persons, mostly non-combatants, have been killed by drone strikes in Somalia since 2003. American drone support bases have been reportedly set up in Arba Minch (Ethiopia), Seychelles, Camp Lemonnier (Djibouti) and recently in Somali’s shell-crated international airport in Mogadishu. A 2012 study by Stanford Law School and New York University’s School of Law indicated that there were more civilians and innocent residents killed in the drone strikes than militants throughout the period of the drone program.
A call to shift the seat: The Gambia is not a suitable seat for the African Commission on Human and Peoples’ Rights
Posted: 27 May, 2013 Filed under: Frans Viljoen | Tags: African Charter, African Charter on Human and Peoples' Rights, African Commission on Human and Peoples’ Rights, African Union, Banjul Charter, ECOWAS, human rights, Organisation of African Unity, President Jammeh, The Gambia 6 Comments
Author: 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.
AfricLaw 
The right to life in Africa: General Comment No. 3 on the African Charter on Human and Peoples’ Rights
Posted: 10 February, 2016 | Author: AfricLaw | Filed under: Paul Ogendi | Tags: 57th Ordinary Session, abolition, Africa, African, African Charter, African Charter of Human and Peoples’ Rights, African Commission, African Commission on Human and Peoples’ Rights, albinos, customary international law, death penalty, dignified life, General Comment, IHL, international human rights law, non-discriminatio, poverty, protection of the right to life, Resolution 263, Resolution 275, right to life, sexual minoroties, use of force | 3 CommentsResearcher, Working Group on death penalty and extrajudicial summary or arbitrary killings in Africa, African Commission on Human and Peoples’ Rights
During its 57th Ordinary Session held from 4 to 18 November 2015 in Banjul, The Gambia, the African Commission on Human and Peoples’ Rights (the Commission) adopted General Comment No. 3 on the African Charter on Human and Peoples’ Rights (General Comment No. 3) focusing on the right to life.
The document is timely because the protection of the right to life is currently under threat globally. Africa is no exception.
The Commission in 2012 expanded the work of one of its working groups focusing on the right to life to include not just death penalty but also extrajudicial, summary and arbitrary killings in Africa.
Some of the salient features of the new General Comment are discussed below.
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