Academic journal article Texas International Law Journal

Beyond the Paper Tiger: The Challenge of a Human Rights Court in Africa

Academic journal article Texas International Law Journal

Beyond the Paper Tiger: The Challenge of a Human Rights Court in Africa

Article excerpt

The [African human rights] enforcement mechanism is unsatisfactory. In the absence of a court and effective measures for a breach, the Charter may well be a paper tiger ....1

I. INTRODUCTION

The promotion and protection of human rights has long been a universally espoused ideal. The widespread atrocities that occurred during World War II, however, galvanized unprecedented interest in human rights, as evidenced by the adoption of the Universal Declaration of Human Rights by the United Nations (UN) in 19482 and a host of other human rights instruments.3 In spite of the increased importance assigned to the pursuit of human rights during the latter part of this century, human rights atrocities have continued unabated. Indeed, this has been the case despite a predicted decrease in the incidence of human rights violations resulting from the 1989 dissolution of the Communist bloc and the movement towards democracy.4 A cursory examination of the violent character of conflicts world-wide bears witness to this phenomenon.

In few places, however, have human rights conditions been more precarious than on the African continent. In spite of the optimism inspired by the attainment of independence, Africa has failed to achieve universal adherence to international human rights principles.

The recent carnage in Rwanda,5 the ongoing conflicts in Liberia6 and Sudan,7 and the political strife in Nigeria8 exemplify the all-too-familiar difficulties of human rights enforcement in Africa. Nevertheless, in spite of the reluctance of the Organization of African Unity (OAU) to intervene in member states' internal affairs, the OAU has, since its inception, been aware of the need to safeguard the human rights of African peoples in the postcolonial era. Indeed, the OAU's avowed adherence to the principles articulated in the Universal Declaration of Human Rights in the OAU Charter manifests an unwavering commitment to the pursuit of human rights at the moment of its creation, at least in theory if not in practice.9 However, the unspeakable atrocities perpetuated by Jean Bedel Bokassa in the Central African Republic,10 Idi Amin in Uganda,11 and Marcias Nguema in Equatorial Guinea,12 and the continuation of apartheid in South Africa13 gave additional impetus to the undertaking of initiatives aimed at staving off future human rights violations.

The first attempt to articulate a methodology for promoting and protecting human rights in Africa took place in Lagos, Nigeria in 1961. Under the aegis of the International Commission of Jurists, scholars from thirty-three countries convened an African Conference on the Rule of Law to consider questions of human rights enforcement in the newly independent states of Africa. It was at this conference that the proposal for continental human rights institutions was first set forth, as evidenced in its preamble, the Law of Lagos:

[I]n order to give full effect to the Universal Declaration of Human Rights of 1948, this Conference invites the African Governments to study the possibility of adopting an African Convention of Human Rights in such a manner that the Conclusions of this Conference will be safeguarded by the creation of a court of appropriate jurisdiction and that recourse thereto be made available for all persons under the jurisdiction of the signatory States. 14

This initiative was followed by calls to establish African human rights enforcement machinery by the UN Commission on Human Rights in 1967, 1972, and 1978, and additional conferences in Cairo (1969), Addis Ababa (1971), Dar-es-Salaam (1973), and Dakar (1978).15 This process culminated in the drafting and adoption of the African Charter on Human and Peoples' Rights in Banjul, The Gambia in 1981.

Notwithstanding its distinctive characteristics, the African Charter, like other existing regional human rights instruments, provides for the establishment of an African Human Rights Commission. …

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