Editorial
This issue of the African Human Rights Journal appears at the end of
year two of the Human and Peoples’ Rights Decade in Africa (2017-
2026) of the African Union (AU), which the AU declared in 2016. You
would be forgiven for not having noticed. Africa’s people could be
forgiven if they question the extent to which African states and the
African Commission on Human and Peoples’ Rights (African
Commission) have over this period acted as the protectors of their
human rights.
As far as human rights are concerned, the rhetoric of AU member
states has little to do with reality. When it declared the Human Rights
Decade in June 2016, the AU Assembly pledged its ‘unflinching
determination to promote and protect human and peoples’ rights in
Africa and the need for the full implementation of human and
peoples’ rights instruments and decisions and recommendations
made by the AU organs with a human rights mandate’.1 More than
that, the Assembly also called on the AU Commission ‘to ensure the
independence and integrity of AU organs with human rights mandate
by shielding them from undue external influence’.2 Regrettably, it
turned out that it was not the threat of ‘undue external influence’ by
donors and non-governmental organisations (NGOs) from outside
Africa, but undue influence by the AU policy organs themselves
(culminating in Decision 1015 by the AU Executive Council in June
2018) that undermined the independence and integrity of the African
Commission.
Decision 1015 was adopted following a ‘retreat’ between the
African Commission and the AU Permanent Representatives’
Committee (PRC), at which a stand-off between the AU policy organs
and the African Commission was the main agenda point. This
deadlock arose because the Commission refused to cave in to
mounting political pressure to withdraw the observer status it had
granted to the non-governmental organisation (NGO) Coalition of
African Lesbians (CAL) in 2015. In January 2018 the AU Executive
Council reiterated its earlier directive to the Commission to withdraw
1 Assembly/AU/Decl.1(XXVII)Rev 1 para 4.
2 Decision on the report on the joint retreat of the Permanent Representatives’ Committee (PRC) and the African Commission on Human and Peoples’ Rights (ACHPR),
EX.CL/Dec.1015(XXXIII).
EDITORIAL v
CAL’s observer status, and called for a joint retreat of the African
Commission and the PRC to be convened to resolve the tension.
Far from ‘resolving’ the issue, Decision 1015 aimed to pull the
carpet from under the African Charter on Human and Peoples’ Rights
(African Charter) system by not only providing a deadline for the
withdrawal of CAL’s observer status, but by further questioning key
aspects of the Commission’s functioning. Following the adoption by
the Executive Council of Decision 1015, the Commission complied,
and withdrew CAL’s observer status. In the process the African
Commission acted in ways that confuse. In its May 2018 decision,
reported in the 44th Activity Report,3 the Commission emphasised
that it would deal with the request for withdrawal of observer status in
a judicial manner, guided by due process, legality and the African
Charter. Regrettably, its eventual response to Decision 1015
contradicts this promised approach, in that it based its withdrawal of
accreditation on the Executive Council’s decisions as such. This implies
that it was political pressure, rather than legal persuasion, that
informed the Commission’s decision.
This outcome seriously undermines claims the African Commission
can make to being independent and autonomous. The reason why
African states in 1981 created the African Charter was to establish a
system of independent oversight over the human rights enjoyed by the
people of Africa. The African Commission as autonomous interpreter
of the African Charter was placed at the core of this system. The
principle of the rule of law – both at national and at AU level –
requires that executives respect judiciaries’ interpretative function. By
insisting that its own interpretation of the Charter overrides that of
the Commission, the Executive Council not only has undermined the
Commission’s autonomy, but also subverted the AU’s internal rule of
law.
There are many other aspects of Decision 1015 that give cause for
concern. One such element is the ‘request’ to the African Commission
to revise its criteria for NGO observer status in line with the guidelines
for accreditation to the AU, ‘taking into account African values and
traditions’.4 The criteria for AU observer status require that at least
two-thirds of the resources of an NGO have to come from
‘contributions from its members’.5 As very few of the NGOs currently
enjoying observer status with the African Commission would comply
with this requirement, this ‘request’ seems to be aimed at diminishing
the role of civil society in complementing the work of both states and
3 In its 44th Activity Report, the African Commission notes its May 2018 decision
that it ‘has to abide by and apply due process in order to ensure legality, compliance with the African Charter and its juridical mandate. Accordingly, the Commission will forthwith institute a process for judicially determining the request to
withdraw NGO observer status from CAL. The Commission will report its final
determination on this matter in its next Activity Report’ (para 43).
4 Para 8(iv) of Decision 1015.
5 Para I(I)(7) of the Guidelines for Observer Status with the AU.
vi (2018) 18 AFRICAN HUMAN RIGHTS LAW JOURNAL
the African Commission. The invocation of the nebulous and
contested concept of ‘African values’, as if it has one agreed-upon
predetermined meaning, is also disconcerting, and seems to lie in wait
to be used as subterfuge whenever political expediencies so dictate.
We add our voice to calls imploring our political leaders to respect
the independence of the African Commission and other AU human
rights mechanisms.
In this issue a wide variety of issues and institutions of relevance to
Africa are covered.
Two contributions concern international courts in Africa. Against
the background of the AU’s stance on immunity, as reflected in article
46Abis of the Protocol on Amendments to the Protocol on the Statute
of the African Court of Justice and Human Rights, Ani examines the
implications of the AU’s embrace of immunity for heads of state and
government and senior government officials. Ani specifically
interrogates the implications for the prosecution of leader figures if an
AU-led hybrid court without any immunity provisions is to be
established in South Sudan. In his analysis he further draws lessons
from the case involving the former President of Chad, Hissène Habré.
In examining the domestic impact of the decisions of the East African
Court of Justice, Lando goes beyond mere compliance by the member
states with the orders of Court, by analysing the influence of these
decisions on the development, interpretation or application of law
and policy, and the practices of state and non-state actors.
McQuoid-Mason’s contribution is related to these two articles in its
quest for access to justice. However, in his article McQuoid-Mason
addresses the domestic arena, specifically countries where there is a
dearth of lawyers. In order to ensure access to justice in such settings,
he argues, legal aid legislation should be drafted to allow non-lawyers
to assist persons in conflict with the law.
The next two contributions deal with two important children’s
rights issues. O’Hare, Bengo, Devajumar and Bengo (a team of
authors comprising the disciplines of pediatrics, bioethics, public
health and law) draw on the literature on the ‘leakage’ of revenue
from low and middle-income countries to identify factors that may
enhance children’s survival. Mwambene traces positive developments
in respect of the prohibition and eradication of child marriage in three
Southern African countries (Zimbabwe, South Africa and Malawi). The
progress made to a significant extent can be ascribed to a
combination of political and legal initiatives. The African Union
Campaign to End Child Marriage, launched in 2014, has been very
influential within the political domain. Legal initiatives include the
Southern African Development Community (SADC) Model Law on
Eradicating Child Marriage and Protecting Children Already in
Marriage, adopted by the SADC Parliamentary Forum in 2014; and
the Joint General Comment of the African Commission on Human and
EDITORIAL vii
Peoples’ Rights and the African Committee of Experts on the Rights
and Welfare of the Child on Ending Child Marriage, adopted in 2017.
Four country-specific articles (three dealing with Nigeria, one with
South Africa) touch on and contribute to contemporary debates on
the continent. Badejogbin reviews Nigeria’s death penalty
jurisprudence with reference to a specific case (the 1998 Nigerian
Supreme Court decision in Onuoha Kalu v The State). Akogwu relies on
Isaiah Berlin’s conception of liberty to argue for less state interference
with the rights of sexual minorities in Nigeria. Adelakun analyses the
law related to surrogacy in Nigeria, concluding that there is a gap
regarding surrogacy in the laws of Nigeria, which may occasion
abuse. Djoyou Kamga derives conclusions from the reliance by South
African courts on the concept of ubuntu, thereby drawing the outlines
of a South African ubuntu jurisprudence.
As on previous occasions, part of this issue of the Journal is devoted
to a ‘Special focus’, in this instance themed ‘Dignity takings and
dignity restorations’. The focus is inspired by the 2014 book by
Professor Bernadette Atuahene, We want what’s ours: Learning from
South Africa’s land restitution program. Penelope Andrews provides an
editorial to the ‘Special focus’ section. The ‘Special focus’ contains
three articles, each focusing on an aspect of ‘dignity restoration’.
In the Journal’s ‘Recent developments’ section Killander and Nyarko
sketch human rights developments in the African Union between
January 2017 and September 2018. Their discussion includes a
detailed contextual analysis of the ‘backlash’ resulting from the
granting of observer status to CAL, referred to earlier. In an important
conclusion to this discussion, the authors highlight that state parties
to the African Charter should ensure that they ‘fulfil the criteria for
membership as set out in the founding treaties and other decisions of
the AU’ when nominating members to the African Commission and
other AU human rights bodies. Windridge discusses the 2016 merits
judgment by the African Court on Human and Peoples’ Rights in
African Commission on Human and Peoples’ Rights v Libya. This case
relates to the detention of Saif al-Islam Kadhafi (Kadhafi) the son of
former Libyan leader Muammar Gaddafi. For the first time, the Court
decided a case on its merits without the state having offered any
arguments, making this the Court’s first default merits decision.
Our sincere appreciation and thanks go to all who have been
involved in making the AHRLJ the quality and well-regarded journal it
has become since its establishment in 2001. For this particular issue,
we extend our genuine gratitude to our anonymous reviewers who so
generously gave of their time, expertise and insights: Romola Adeola;
Horace Adjolohoun; Joseph Akech; Akinola Akintayo; Usang Assim;
Gina Bekker; Ashwanee Budoo; Charles Fombad; Zita Hansungule;
Larry Helfer; David Ikpo; Tinyade Kachika; Mariam Kamunyu; Kennedy
Kariseb; Kristi Kenyon; Anton Kok; Anne Louw; Trésor Makunya;
Thaddeus Metz; Godfrey Musila; Satang Nabaneh; Enyinna Nwauche;
Michael Nyarko; Ciara O’Connell; Chairman Okoloise; Dejo Olowu;
viii (2018) 18 AFRICAN HUMAN RIGHTS LAW JOURNAL
Azubike Onuora-Oguno; Kate O’Regan; Thomas Probert; Asha
Ramgobin; Ayo Sogunro; and Karin van Marle.
African Human Rights Journal published an editorial the end of year two of the Human and Peoples’ Rights Decade in Africa
